http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 109  

PETITIONER: THE  SECRETARY,  MINISTRY  OF  INFORMATION  &  BROADCASTING,

       Vs.

RESPONDENT: CRICKET ASSOCIATION OF BENGAL & ANR.

DATE OF JUDGMENT09/02/1995

BENCH: SAWANT, P.B. BENCH: SAWANT, P.B. MOHAN, S. (J) JEEVAN REDDY, B.P. (J)

CITATION:  1995 AIR 1236            1995 SCC  (2) 161  JT 1995 (2)   110        1995 SCALE  (1)539

ACT:

HEADNOTE:

JUDGMENT: 1.   Leave granted. 2.   It  will be convenient to answer the questions  of  law that  arise  in the present case, before we  advert  to  the factual  controversy between the parties.  The questions  of law are: [1] Has an organiser or producer of any event a right to get the  event telecast through an agency of his choice  whether national or foreign? [2]   Has  such  organiser  a  choice  of  the   agency   of telecasting,  particularly when the exercise of  his  right, does  not  make  demand on any  of  the  frequencies  owned, commanded or controlled by the Government or the  Government agencies  like  the Videsh Sanchar Nigam Limited  [VSNL]  or Doordarshan [DD]? [3]  Can such an organiser be prevented from creating    the terrestrial signal and denied the    facility   of    merely uplinking  the terrestrial signal to the satellite owned  by another agency whether foreign or national? [4] What, if any, are the conditions which can be imposed by the  Government department which in the present case is  the Ministry  of  Information  and Broadcasting  [MIB]  for  [a] creating  terrestrial signal of the event and  [b]  granting facilities  of  uplinking to a satellite not owned  or  con- trolled 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  en- gaged by him, to take the signal only from the Government or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 109  

Government  agency and telecast it only with its  permission or 4.   To appreciate the thrust of the above questions and the answers  to  them, it is necessary first to  have  a  proper understanding of what ’telecasting’ means and what its legal dimensions and consequences are.  Telecasting is a system of communication  either  audio  or visual  or  both.   We  are concerned   in   the   present   case   with    audio-visual telecommunication.   The  first stage in telecasting  is  to generate  the audio-visual signals of the events or  of  the information  which is sought to be communicated.   When  the event  to be telecast takes place on the earth,  necessarily the signal is generated on the earth by the 123 requisite  electronic  mechanism such  as  the  audio-visual recorder.   This  stage may be described  as  the  recording stage.   The events may be spontaneous, accidental,  natural or  organised.   The  spontaneous,  accidental  and  natural events   are  by  their  nature  uncontrollable.   But   the organised  events can be controlled by the law of the  land. In  our  country, since the Organisation of an event  is  an aspect  of  the fundamental right to freedom of  speech  and expression  protected by Article 19 [1] (a), the law can  be made to control the Organisation of such events only for the purposes of imposing reasonable restrictions in the interest of  the  sovereignty  and  integrity  of  the  country,  the security  of  the  state, friendly  relations  with  foreign States, public order, decency or morality or in relation  to contempt  of court, defamation or incitement- to an  offence as laid down under Article 19 [2] of the Constitution.   Al- though,  therefore,  it  is not possible  to  make  law  for prohibiting  the  recording of  spontaneous,  accidental  or natural events, it is possible for the reasons mentioned  in Article  19 [2], to restrict their telecasting.  As  regards the  organised events, a law can be made for restricting  or prohibiting  the Organisation of the event itself, and  also for telecasting it, on the same grounds as are mentioned  in Article 19 [2].  There, cannot, however, be restrictions  on producing  and recording the event on grounds not  permitted by  Article  19  [2].   It,  therefore,  follows  that   the Organisation  or  production of an event and  its  recording cannot  be prevented except by law permitted by  Article  19 [2].  For the same reasons, the publication or communication of  the recorded event through the mode of cassettes  cannot be restricted or prevented except under such law.  All those who have got the apparatus of video cassette recorder  [VCR] and the television screen can, therefore, view and listen to such  recorded event [hereinafter referred to, for the  sake of convenience, as ’viewers’].  In this process, there is no demand  on any frequency or channel since there is no  live- telecast  of the event.  The only additional restriction  on telecasting  or live-telecasting of such event will  be  the lack of availability of the frequency or channel. 5.   Since  in  the present case, what is  involved  is  the right to live-telecast the event, viz., the cricket  matches organised  by  the  Cricket Association  of  Bengal,  it  is necessary to understand the various issues involved in  live telecasting.  It may be made clear at the outset, that there may  as  well be a file telecast [i.e., telecasting  of  the events  which  are already recorded by the  cassette].   The issues  involved  in file telecasting will also be  more  or less the same and therefore, that subject is not dealt  with separately.   Telecasting live or file necessarily  involves the use of a frequency or a channel. 6.   The telecasting is of three types, [a] terrestrial, [b]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 109  

cable  and [c] satellite.  In the first case, the signal  is generated by the camera stationed at the spot of the event,- and  the  signal  is then sent to  the  earthly  telecasting station  such  as the T.V. Centre which in  turn  relays  it through  its  own frequencies to all the  viewers  who  have T.V.screens/sets.   In   the  second   case,   viz.,   cable telecasting,  the cable operator receives the  signals  from the  satellite  by means of the parabolic dish  antenna  and relays  them to all those T.V. screens which are  linked  to his  cable.  He also relays the recorded file programmes  or cassettes through the cable to the cable-linked viewers.  In this case, there is no restriction on 124 his  receiving the signals from any satellite to  which  his antenna is adjusted.  There is no demand made by him on  any frequency  or  channel owned or controlled by  the  national government or governmental agencies.  The cable operator can show  any event occurring in any part of the country or  the world  live through the frequencies if his dish antenna  can receive the same.  The only limitation from which the  cable T.V.  suffers  is that the programmes relayed by it  can  be received  only by those viewers who are linked to  the  dish antenna  concerned.   The last type,  viz.,  satellite  T.V. operation  involves the use of a frequency generated,  owned or controlled by the national Government or the Governmental agencies, or those generated, owned and controlled by  other agencies.   It is necessary to bear in mind the  distinction between  the frequencies generated, owned and controlled  by the  Government or Governmental agency and  those  generated and  owned  by  the  other agencies.   This  is  so  because generally,  as in the present case, one of  the  contentions against the right to access to telecasting is that there are a limited number of frequencies and hence there is the  need to  utilise  the limited resources for the  benefit  of  all sections of the society and to promote all social  interests by  giving  them  priority as  determined  by  some  central authority.  It follows, therefore, that where the  resources are  unlimited or the right to telecast need not suffer  for want  of a frequency, objection on the said ground would  be misplaced.  It may be stated here that in the present  case, the  contention  of  the MIB and DD  against  the  right  to telecast  claimed  by  the  Cricket  Association  of  Bengal [CAB]/Board  of  Control  for Cricket in  India  [BCCI]  was raised only on the ground of the limitation of  frequencies, ignoring  the fact that the CAB/BCCI had not made demand  on any of the frequencies generated or owned by the MIB/DD.  It desired  to  telecast the cricket matches  organised  by  it through   a  frequency  not  owned  or  controlled  by   the Government  but  owned  by  some  other  agency.   The  only permission  that the CAB/ BCCI sought was to uplink  to  the foreign satellite the signals created by its own cameras and the  earth station or the cameras and the earth  station  of its  agency  to a foreign satellite.   This  permission  was sought  by  the CAB/BCCI from VSNL which is  the  Government agency  controlling the frequencies.  The  permission  again cannot be refused except under law made in pursuance of  the provisions of Article 19 [2] of the Constitution.  Hence, as stated above, one of the important questions to be  answered in  the present case is whether the permission to uplink  to the  foreign satellite, the signal created by  the  CAB/BCCI either by itself or through its agency can be refused except on the ground stated in the law made under Article 19 [2]. 7.   This  takes us to the content of the fundamental  right to  the  freedom  of speech  and  expression  guaranteed  by Article 19 [1] (a) and the implications of the  restrictions

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 109  

permitted  to  be imposed on the said right, by  Article  19 [2].   We will first deal with the decisions of  this  Court where the dimensions of the right are delineated. 8.   In Romesh Thappar v. The State of Madras [1950 SCR 594] the facts were that the Provincial Government in exercise of its  powers under Section 9 [1-A] of Madras  Maintenance  of Public  Order Act, 1949, by an order imposed a ban upon  the entry  and  circulation of the petitioner’s  journal  ’Cross Roads’.  The said order stated that it was being passed  for the pur- 125 pose  of securing the public safety and the  maintenance  of public  order.  The petitioner approached this  Court  under Article  32  of  the Constitution claiming  that  the  order contravened the petitioner’s fundamental right to freedom of speech  and expression.  He also challenged the validity  of Section  9 [1-A] of the impugned Act.  The majority  of  the Court  held  that  the  freedom  of  speech  and  expression includes freedom of propagation of ideas and that freedom is ensured  by the freedom of circulation.  In support of  this view,  the Court referred to two decisions of the  U.S.  Su- preme  Court viz., [1] Exparte Jackson [96 US 727] and  [ii] Lovell  v.  City  of Griffin [303 US 444]  and  quoted  with approval  the  following  passage  therefrom:  "Liberty   of circulation  is as essential to that freedom as the  liberty of publication.  Indeed, without circulation the publication would be of little value".  Section 9 [1-A] of the  impugned Act  authorised the Provincial Government, "for the  purpose of  securing the public safety or the maintenance of  public order,  to  prohibit  or  regulate the  entry  into  or  the circulation, sale or distribution in the Province of  Madras or any part thereof or any document or class of  documents". The  question that the Court had to answer was  whether  the impugned Act insofar as it contained the aforesaid provision was a law relating to a matter which undermined the security of,  or tended to overthrow the State.  The Court held  that "public  order"  is an expression of  wide  connotation  and signifies that state of tranquility which prevails among the members  of a political society as a result of the  internal regulations  enforced  by  the Government  which  they  have established.   The  Act was passed by  the  Provincial  Leg- islature  under Section 100 of the Government of India  Act, 1935, read with Entry I of List II of the Seventh  Scheduled to  that Act.  That Entry, among others,  comprised  "public order"  which  was different from "public safety"  on  which subject the Provincial Legislature was not competent to make a  law.  The Court distinguished between "public order"  and "public  safety" and held that public safety was a  part  of the wider concept of public order and if it was intended  to signify  any  matter  distinguished  from  and  outside  the content of the expression "public order", it would not  have been  competent  for  the Madras Legislature  to  enact  the provision  so far as it related to public  safety.   "Public safety"  ordinarily  means security of the public  or  their freedom from danger.  In that sense, anything which tends to prevent danger to public health may also be regarded as  se- curing  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 109  

such right, it is not possible to uphold it even insofar  as it may be applied within the constitutional limits as it  is not  severable.   So long as the possibility  of  its  being applied  for  purposes not sanctioned  by  the  Constitution cannot   be  ruled  out,  it  may  be  held  to  be   wholly unconstitutional  and void.  In other words, clause  [2]  of Article 19 having allowed the imposition of restrictions  on the  freedom  of speech and expression only in  cases  where danger  to  the  State is involved, an  enactment  which  is capable of being                             126 applied to cases where no such danger could arise, cannot be held to be constitutional and valid to any extent. 9.   The above view taken by this Court was  reiterated   in Brij Bhushan & Anr. v. The    State of Delhi [1950 SCR  6051 where  Section  7 [1] (c) of the East Punjab  Public  Safety Act,  1949 as extended to the Province of  Delhi,  providing that  the Provincial Government or any authority  authorised by  it  in this behalf, if satisfied that  such  action  was necessary   for   preventing  or  combating   any   activity prejudicial  to  the  public safety or  the  maintenance  of public order, may pass an order that any matter relating  to a  particular  subject -or class of  subjects  shall  before publication  be  submitted  for scrutiny, was  held  as  un- constitutional  and void.  The majority held that  the  said provision  was violative of Article 19 [1] [a] since it  was not a law relating to a matter which undermined the security of,  or tended to overthrow the State within the meaning  of the then saving provision contained in Article 19 [2].   The Court  further unanimously held that the imposition of  pre- censorship of a journal was a restriction on the liberty  of the  press  which  was an essential part  of  the  right  to freedom  of  speech and expression declared  by  article  19 [1](a). 10.  In  Hamdard Dawakhana [Wakf] Lal Kuan, Delhi & Anr.  v. Union  of  India & Ors. [(1960) 2 SCR 671], the  Court  held that   the   object  of  the  Drugs   and   Magic   Remedies [Objectionable Advertisements] Act, 1954 was the  prevention of  self-medication  and self-treatment by  prohibiting  in- struments  which may be used to advocate the same  or  which tended  to spread the evil.  Its object was not  merely  the stopping  of advertisements offending against  morality  and decency.   The Court further held that advertisement  is  no doubt  a form of speech but its true character is  reflected by the object for the promotion of which it is employed.  It is  only  when  an  advertisement  is  concerned  with   the expression  or propagation of ideas that it can be  said  to relate  to freedom of speech but it cannot be said that  the right  to publish and distribute  commercial  advertisements advertising  an individual’s personal business is a part  of the  freedom of speech guaranteed by the Constitution.   The provisions  of  the  Act  which  prohibited   advertisements commending  the  efficacy,  value  and  importance  in   the treatment  of  particular  diseases  of  certain  drugs  and medicines did not fall under Article 19 [1] (a) of the  Con- stitution.  The scope and object of the Act, its true nature and character was not interference with the right of freedom of  speech  but  it  dealt with  trade  and  business.   The provisions  of the Act were in the interest of  the  general public  and placed reasonable restrictions on the trade  and business of the petitioner and were saved by Article 19 [6]. The  Court further held that the first part of Section 8  of the  impugned Act which empowered any person  authorised  by the  State  Government  to seize  and  detain  any  document article  or thing which such person had reason  to  believe,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 109  

contained  any advertisement contravening the provisions  of the   Act  imposed  an  unreasonable  restriction   on   the fundamental  rights  of  the petitioner  and  was  unconsti- tutional.   According  to the Court, the said  operation  of Section 8 went far beyond the purposes for which the Act was enacted and failed to provide proper safeguards in regard to the  exercise of the powers of seizure and detention as  had been   provided  by  the  legislature  in  other   statutes. However, if this operation was ex- 127 cised  from  the  section the  remaining  portion  would  be unintelligible and could not be upheld. 11.  In Sakal Papers [P] Ltd. & Ors.. v. The Union of  India [(1962)]  3  SCR 842] what fell for  consideration  was  the Newspaper  [Price  and age] Act, 1956  which  empowered  the Central  Government to regulate the prices of newspapers  in relation  to their pages and size and also to  regulate  the allocation of space for advertising matters and the  Central Government  order made under the said Act, viz.,  the  Daily Newspaper  [Price  and  Page] Order, 1960  which  fixed  the maximum  number  of  pages that might be  published  by  the newspaper according to the price charged and prescribing the nature of supplements that could be issued.  The Court  held that  the  Act and the Order were void  being  violative  of Article 19 [1] (a) of the Constitution.  They were also  not saved by Article 19 [2].  The Court asserted that the  free- dom  of speech and expression guaranteed by Article  19  [1] (a) included the freedom of the press.  For propagating  his ideas   a  citizen  had  the  right  to  publish  them,   to disseminate  them and to circulate them, either by  word  or mouth  or by writing.  The right extended not merely to  the matter  which he was entitled to circulate but also  to  the volume  of circulation.  Although the impugned Act  and  the Order placed restraints on the volume of circulation,  their very  object  was directed against circulation.   Thus  both interfered  with the freedom of speech and expression.   The Court  held that Article 19 [2] did not permit the State  to abridge  the said right in the interest of  general  public. The  Court  also held that the State could not  make  a  law which   directly  restricted  one  guaranteed  freedom   for securing  the better enjoyment of another freedom.   Freedom of  speech could not be restricted for the purpose of  regu- lating   the   commercial  aspect  of  the   activities   of newspapers.  In this connection, the following  observations of the Court are relevant:               "Its  object  thus is  to  regulate  something               which, as already stated, is directly  related               to  the  circulation of  a  newspaper.   Since               circulation  of a newspaper is a part  of  the               right  of  freedom of speech the Act  must  be               regarded  as one directed against the  freedom               of speech.  It has selected the fact or  thing               which  is an essential and basic attribute  of               the conception of the freedom of speech, viz.,               the right to circulate one’s views to all whom               one  can  reach  or  care  to  reach  for  the               imposition  of  a restriction.   It  seeks  to               achieve its object of enabling what are termed               the  smaller newspapers to secure larger  cir-               culation by provisions which without  disguise               are  aimed at restricting the  circulation  of               what are termed the larger papers with  better               financial strength.  The impugned law far from               being  one, which merely interferes  with  the               right of freedom of speech incidentally,  does

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 109  

             so directly though it seeks to achieve the end               by purporting to regulate the business  aspect               of   a  newspaper.   Such  a  course  is   not               permissible  and  the  courts  must  be   ever               vigilant in guarding perhaps the most precious               of   all  the  freedoms  guaranteed   by   our               Constitution.  The reason for this is obvious.               The  freedom  of  speech  and  expression   of               opinion  is  of paramount importance  under  a               democratic   Constitution   which    envisages               changes in the composition of legislatures and               governments and must be preserved.  No  doubt,               the  law  in question was made upon  the  rec-               ommendation of the Press Commission but  since               its object is to affect directly the right  of               circulation   of   newspapers   which    would               necessarily undermine their power to influence               public opinion it cannot but                                    128               be  regarded  as a dangerous weapon  which  is               capable   of  being  used  against   democracy               itself.               x x         x         x         x         x               The  legitimacy of the result intended  to  be               achieved does not necessarily imply that every               means  to achieve it is permissible; for  even               if  the end is desirable and permissible,  the               means employed must not transgress the  limits               laid   down  by  the  Constitution,  if   they               directly  impinge  on any of  the  fundamental               rights guaranteed by the Constitution it is no               answer  when  the  constitutionality  of   the               measure  is  challenged that  apart  from  the               fundamental  right infringed the provision  is               otherwise legal.               Finally it was said that one of its objects is               to  give some kind of protection to  small  or               newly  started newspapers and, therefore,  the               Act is good.  Such an object may be  desirable               but  for  attaining it the State  cannot  make               inroads on the right of other newspapers which               Art. 19 [1] (a) guarantees to them.  There may               be  other ways of helping them and it  is  for               the State to search for them but the one  they               have chosen falls foul of the Constitution.               To repeat, the only restrictions which may  be               imposed  on the rights of an individual  under               Art. 19 [1] (a) are those which cl. [2] of Art               19 permits and no other". 12.  In Bennett Coleman & Co. & Ors. v. Union  of  India   & Ors.  [(1972) 2 SCC 788], the majority of  the  Constitution Bench held that newspapers should be left free to  determine their pages, their circulation and their new edition  within their  quota  which  has  been  fixed  fairly.   It  is   an abridgment  of  freedom of expression to  prevent  a  common ownership unit from starting a new edition or a new  newspa- per.  A common ownership unit should be free to start a  new edition out of their allotted quota and it would be  logical to  say  that  such a unit can use its  allotted  quota  for changing  its  page structure and circulation  of  different editions  of  same paper.  The compulsory reduction  to  ten pages  offends Article 19 [1] (a) and infringes the  freedom of  speech and expression.  Fixation of page limit will  not only  deprive the petitioners of their  economic  viability, but  will also restrict the freedom of expression by  reason

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 109  

of   the  compulsive  reduction  of  page  level   entailing reduction of circulation and including the area of  coverage for  news  and views.  Loss of advertisements may  not  only entail   the  closing  down,  but  will  also   affect   the circulation  and  thereby impinge on freedom of  speech  and expression.   The  freedom of press entitles  newspapers  to achieve any volume of circulation.  It was further held that the  machinery of import control cannot be utilised to  curb or   control   circulation   or   growth   or   freedom   of newspapers.The  news  print control policy was in  effect  a newspaper  control policy and a newspaper control policy  is ultra  vires the Import Control Act and the  Import  Control Order.   The  majority further held that by the  freedom  of press  is meant the right of citizens to speak  and  publish and express their views.  The freedom of the press  embodies the right of the people to read and it is not  ante-thetical to  the  right  of the people to  speak  and  express.   The freedom  of speech and expression is not only in the  volume of  circulation  but also in the volume of news  and  views. The  press  has  the right of  free  publication  and  their circulation  without any obvious restraint  on  publication. If the law were to single out press 129 for  laying  down  prohibitive  burdens  on  it  that  would restrict  circulation,  penalise  freedom of  choice  as  to personnel, prevent newspapers from being started and  compel the press to Government aid.  This would violate Article  19 [1]  (a) and would fall outside the protection  afforded  by Article  19  [2].   The  First  Amendment  to  the  American Constitution contains no exception like our Article 19  [2]. Therefore,   American  decisions  have  evolved  their   own exceptions.    The  American  decisions  establish  that   a Government   regulation  is  justified  in  America  as   an important  essential Government interest which is  unrelated to  the  suppression of free expression.  The true  test  is whether the effect of the impugned action is to take away or abridge  fundamental  rights.   The object  of  the  law  or executive  action is irrelevant when it is established  that the petitioner’s fundamental right is infringed. 13.  In Indian Express Newspapers (Bombay) Pvt.  Ltd. & Ors. v. Union of India & Ors. [(1985) 1 SCC 641 ], the Court held that the expression "freedom of the press" has not been used in Article 19, but it is comprehended within Article 19  [1] (a).  This expression means a freedom from interference from authority  which would have the effect of interference  with the content and circulation of newspapers.  There cannot  be any  interference  with that freedom in the name  of  public interest.  The purpose of the press is to advance the public interest  by  publishing facts and  opinions  without  which democratic  electorate  cannot make  responsible  judgments. Freedom  of the press is the heart of social  and  political intercourse.   It is the primary duty of the Courts  to  up- ,,hold  the freedom of the press and invalidate all laws  or administrative  actions which interfere with it contrary  to the  constitutional mandate.  The freedom of expression  has four  broad  social  purposes  to serve:  [i]  it  helps  an individual to attain self fulfilment, [ii] it assists in the discovery of truth, [iii] it strengthens the capacity of  an individual  in participating in decision-making and [iv]  it provides  a  mechanism  by which it  would  be  possible  to establish a reasonable balance between stability and  social change.   All members of the society should be able to  form their own beliefs and communicate them freely to others.  In sum, the fundamental principle involved here is the people’s right  to  know.  Freedom of speech and  expression  should,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 109  

therefore,  receive  a generous support from all  those  who believe   in   the   participation   of   people   in    the administration.   It is on account of this special  interest which  society has in the freedom of speech  and  expression that the approach of the Government should be more  cautious while levying taxes on matters concerning newspaper industry than  while  levying taxes on other matters.The  Courts  are there always to strike down curtailment of freedom of  press by unconstitutional means.  The delicate task of determining when  it  crosses from the area of  profession,  occupation, trade,  business  or industry into the area  of  freedom  of expression and interferes with that freedom is entrusted  to the Courts.  In deciding the reasonableness of  restrictions imposed on any fundamental right the Court should take  into consideration  the nature of the right alleged to have  been infringed,  the  underlying  purpose  of  the   restrictions imposed,  the  disproportion  of  the  imposition  and   the prevailing  conditions  including the  social  values  whose needs   are  sought  to  be  satisfied  by  means   of   the restrictions.  The imposition of a tax like the custom  duty on 130 news  print is an imposition of tax on knowledge  and  would virtually  amount  to a burden imposed on a  man  for  being literate and for being conscious of his duty as a citizen to inform himself of the world around him.  The pattern of  the law  imposing  custom  duty and the manner in  which  it  is operated, to a certain extent, exposes the citizens who  are liable to pay the custom duties to the vagaries of executive discretion. 14.  In  Odyssey  Communications  Pvt.  Ltd.  v.  Lokvidayan Sanghatana and others [(1988) 3 SCC 410 ], it was held  that the  right  of  citizens to  exhibit  films  on  Doordarshan subject  to  the terms and conditions to be imposed  by  the Doordarshan is a part of the fundamental right of freedom of expression guaranteed under Article 19 [1] (a) which can  be curtailed only under circumstances set out under Article  19 [2].  The right is similar to the right of citizen to public his views through any other media such as newspapers,  maga- zines, advertisement hoarding etc. subject to the terms  and conditions  of  the  owners of the media.   The  freedom  of expression  is  a  preferred  right  which  is  always  very zealously  guarded  by the Supreme Court.  However,  on  the question whether a citizen has a fundamental right to estab- lish  a  private broadcasting station or  T.V.  centre,  the Court  reserved its opinion for decision in  an  appropriate case.   The matter had come up before this Court against  an interim  injunction  order  issued by the High  Court  as  a result  of which 12th and 13th episodes of the  film  "Honi- Anhoni"  could not be telecast on the scheduled dates.   The Court held that it was not the case of the writ  petitioners before the High Court that the exhibition of the said serial was in contravention of any specific law or direction issued by  the  Government.   They had also not  alleged  that  the Doordarshan had shown any undue favour to the appellant  and the sponsoring institutions resulting in any financial  loss to the public exchequer.  The objection to the exhibition of the  film had been raised by them on the basis that  it  was likely to spread false or blind beliefs among the members of the  public.  They had not asserted any right  conferred  on them  by  any statute or acquired by them under  a  contract which  entitled  them  to  secure  an  order  of   temporary injunction.  The appellant before this court had denied that the   exhibition  of  the  serial  was  likely   to   affect prejudicially  the  wellbeing of the people.  The  Union  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 109  

India and Doordarshan had pleaded that the serial was  being telecast after following the prescribed procedure and taking necessary   precautions.   The  writ  petitioners  had   not produced  any material. apart from their own  statements  to show"  that  the exhibition of the serial  was  prima  facie prejudicial to the community.  This Court held that the High Court  had overlooked that the issue of an order of  interim injunction  would  infringe  the fundamental  right  of  the producer  of  a serial.  In the absence of any  prima  facie evidence of gross prejudice that was likely to be caused  to the public generally by the exhibition of the serial, it was not  just  and  proper to issue an order  of  temporary  in- junction. 15.  In  S. Rangarajan v. P. Jagjivan Ram & Ors.  [(1989)  2 SCC  574], it was held that the-freedom of speech under  Ar- ticle 19 [1] (a) means the right to express one’s opinion by words  of mouth, writing, printing, picture or in any  other manner.  It would thus include the freedom of  communication and,their right to propagate or 131 publish opinion.  The communication of ideas could be  made, through any medium, newspaper, magazine or movie.  But  this right  is  subject to reasonable restriction in  the  larger interests  of  the  community and the  country  set  out  in Article 19 [2].  These restrictions are intended to strike a proper balance between the liberty guaranteed and the social interests  specified  in  Article  19  [2].   This  is   the difference   between  the  First  Amendment  to   the   U.S. Constitution  and  Article  19  of  our  Constitution.   The decisions bearing on the First Amendment are, therefore, not useful  to us except the broad principle and purpose of  the guarantee.   The Court, in this connection, referred to  the U.S.  decisions  in Mutual Film  Corporation  v.  Industrial Commission  [236 US 230 (1915)], Burslyn v. Wilson  [343  US 495]  and Schenck v. United States [249 US 47].   The  Court further  held that there should be a compromise between  the interest of freedom of expression and social interests.  The Court cannot simply balance the two interests as if they are of  equal  weight.   The Court’s commitment  to  freedom  of expression  demands that it cannot be suppressed unless  the situations created by allowing the freedom are pressing  and the  community  interest  is  endangered.   The  anticipated danger should not be remote, conjectural or far-fetched.  It should have proximate and direct nexus with the  expression. The expression of thought should be intrinsically  dangerous to the public interests.  It should be inseparably locked up with the action contemplated like the equivalent of a "spark in  a powder keg".  Though movie enjoys the guarantee  under Article  19  [1] (a), there is  one  significant  difference between  the movie and other modes of communication.   Movie motivates  thought and action and assures a high  degree  of attention and retention.  In view of the scientific improve- ments in photography and production, the present movie is  a powerful  means of communication.  It has a unique  capacity to  disturb and arouse feelings.  It has much potential  for evil as it has for good.  With these qualities and since  it caters  for  mass audience who are generally  not  selective about  what  they watch, the movie cannot  be  equated  with other  modes  of  communication.  It cannot  be  allowed  to function in a free marketplace just as does the newspaper or magazines.  Censorship by prior restraint is, therefore, not only desirable but also necessary.  But the First  Amendment to   the  U.S.  Constitution  does  not  permit  any   prior restraint,  since  the  guarantee  of  free  speech  is   in unqualified  terms.  Censorship is permitted mainly  on  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 109  

ground  of social interests specified under Article  19  [2] with  emphasis  on maintenance of values  and  standards  of society.   Therefore, censorship with prior  restraint  must necessarily  be reasonable that could be saved by  the  well accepted principles of judicial review.  The standard to  be applied  by the board or courts for judging the film  should be that of an ordinary man of common sense and prudence  and not  that of an out of the ordinary or  hypersensitive  man. The  board  should exercise considerable  circumspection  on movies  affecting the morality or decency of our people  and cultural  heritage  of  the country.  The  moral  values  in particular,  should not be allowed to be sacrificed  in  the guise  of social change or cultural assimilation.  The  path of  right conduct shown by the great sages and  thinkers  of India  and the concept of ’Dharam’ [righteousness  in  every respect], which are the bedrock of our civilisation,  should not  be  allowed to be shaken by unethical  standards.   But this does not mean that the censors should have an orthodox 132 or  conservative  outlook.   Far  from  it,  they  must   be responsive  to  social  change and they  must  go  with  the current  climate.   However, the censors  may  display  more sensitivity to movies which will have a markedly deleterious effect to lower the moral standards of those who see it. 16.  However, the producer may project his   own     message which the others may not approve of it.  But he has a  right to ’think out’ and put the counter-appeals to reason.  It is a  part  of a democratic give and take to  which  one  could complain.  The State cannot prevent open discussion and open expression, however hateful to its policies.  Everyone has a fundamental  right to form his own opinion on any  issue  of general  concern.  He can form and inform by any  legitimate means.  The democracy is a government by the people via open discussion.   The  democratic  form  of  government   itself demands its citizens an active and intelligent participation in the affairs of the community.  The public discussion with people’s  participation  is a basic feature and  a  rational process  of democracy which distinguishes it from all  other forms of government. 17.  Dealing  with the film in question, the  Court  further observed that the film in the present case suggests that the existing method of reservation on the basis of caste is  bad and  reservation  on the basis of economic  backwardness  is better.  The film also deprecates exploitation of people  on caste  consideration.  This is the range and rigours of  the film.  There is no warrant for the view that the  expression in  the film by criticism of reservation policy or  praising the  colonial rule will affect the security of the State  or sovereignty and integrity of India.  There is no  utterrance in  the  film  threatening to overthrow  the  government  by unlawful or unconstitutional means or for secession; nor  is there  any suggestion for impairing the integration  of  the country.   Two Revising Committees have approved  the  film. The  members thereof come from different walks of life  with variegated experiences.  They represent the cross-section of the  community.  They have judged the film in the  light  of the  objectives of the Act and the guidelines  provided  for the  purpose.   There  is  nothing  wrong  or  contrary   to Constitution  in approving the film for  public  exhibition. The producer or as a matter of fact, any other person has  a right  to  draw the attention of the government  and  people that  the  existing  method of  reservation  in  educational institutions  overlooks merits.  Whether this view is  right or  wrong is another matter altogether and at any rate,  the Court is not concerned with its correctness or usefulness to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 109  

the people.  The Court is only concerned whether such a view could be advocated in a film.  To say that one should not be permitted  to  advocate  that view goes  against  the  first principle of our democracy.  If the film is  unobjectionable and  cannot constitutionally be restricted under Article  19 [2],  freedom of expression cannot be suppressed on  account of  threat  of demonstration and processions or  threats  of violence.  That would tantamount to negation of the rule  of law  and a surrender to blackmail and intimidation.   It  is the  duty of the State to protect the freedom of  expression since  it  is a liberty guaranteed against the  State.   The State  cannot  plead  its inability to  handle  the  hostile audience problem.  Freedom of expression which is legitimate and  constitutionally protected cannot be held to ransom  by an  intolerant  group of people.   The  fundamental  freedom under Article 19 133 [1]  (a) can be reasonably restricted only for the  purposes mentioned  in  Article 19 [2] and the  restriction  must  be justified on the anvil of necessity and not the quicksand of convenience  or  expediency.  Open criticism  of  government policies and operations is not a ground for restricting  ex- pression. 18.  The  views  taken  by  this  Court  in  the   aforesaid decisions  have thereafter been repeated and  reproduced  in the subsequent decisions. 19.  In Printers (Mysore) Ltd. & Anr v. Asst.     Commercial Tax Officer & Ors. [(1994) 2 SCC 434], it is reiterated that the  special  treatment  given  to  the  newspapers  has   a philosophy and historical background.  Freedom of press  has been  placed  on a higher footing  than  other  enterprises. Though  freedom  of press is not expressly guaranteed  as  a fundamental  right, it is implicit in the freedom of  speech and  expression.   Freedom  of  press  has  always  been   a cherished right in all democratic countries.  Therefore,  it has rightly been described as the Fourth Estate.  The  demo- cratic crede is of a State are judged today by the extent of freedom  the  press enjoyed in that  State.   This  decision quotes  from the. opinion of Douglas, J. in  Terminiello  v. Chicago [93 L.ed 1131: 337 US 1 (1949)] that "acceptance  by Government of a dissident press is a measure of the maturity of the nation". 20.  In  Life  Insurance Corporation of India  v.  Professor Manubhai  D.  Shah [(1992) 3 SCC  6371,  the  respondent-Ex- ecutive  Trustee  of  the Consumer  Education  and  Research Centre  [CERC],  Ahmedabad, after making research  into  the working of the Life Insurance Corporation [LIC], published a study  paper portraying the discriminatory practice  adopted by the LIC by charging unduly high premia from those  taking out  life  insurance  policies and  thus  denies  access  to insurance  coverage to a vast majority of people who  cannot afford to pay the high premium.  A member of the LIC wrote a counter  article  and published it in  the  daily  newspaper "Hindu".   The  respondent replied to the same in  the  said newspaper.   The member of LIC then published  his  counter- reply in LIC’s house magazine.  The respondent requested the LIC  to  publish his rejoinder also in  the  said  magazine. That  request  was  turned down.  On these  facts,  the  re- spondent  filed  a  writ  petition  before  the  High  Court challenging  the action of the LIC, among other  things,  on the  ground that his fundamental right under Article 19  [1] (a)  of the Constitution was violate by LIC by  refusing  to publish his reply.  The High Court held that under the  pre- text  and  guise  of publishing a house  magazine,  the  LIC cannot  violate  the fundamental rights of  the  petitioner.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 109  

This  Court endorsing the view taken by the High Court  held that  the LIC is ’State’ within the meaning of  Article  12. The LIC Act requires it to function in the best interest  of the  community.   The community is, therefore,  entitled  to know whether or not this requirement of the statute is being satisfied  in the functioning of the LIC.  The  respondent’s efforts  in  preparing the study paper was to bring  to  the notice  of the community that the LIC had strayed  from  its path by pointing out that its premium rates were unduly high when  they  could  be low if the LIC  avoided  the  wasteful indulgences.   The endeavour was to enlighten the  community of the drawbacks and shortcomings of the LIC and to pinpoint the area where improvement was 134 needed and was possible.  By denying to the  policy-holders, the  information contained in the rejoinder prepared by  the respondent, the LIC cannot be said to be acting in the  best interest  of the community.  There was nothing offensive  in the  rejoinder which fell within the restriction clauses  of Article  19 [2].  Nor was it prejudicial to the  members  of the  community or based on imaginary or concocted  material. On  the basis of the fairness doctrine the LIC was under  an obligation to publish the rejoinder.  The respondent’s  fun- damental right to speech and expression clearly entitled him to  insist that his views on the subject should reach  those who  read  the magazine so that they have  complete  picture before  them instead of a one-side or distorted picture  The Court  also  pointed  out that the attitude of  the  LIC  in refusing to publish the rejoinder in their magazine financed from  public  funds,  can be described as  both  unfair  and unreasonable  unfair  because fairness  demanded  that  both view-points were placed before the readers and  unreasonable because there was no justification for refusing publication. The  monopolistic  State instrumentality which  survives  on public  funds  cannot  act in an  arbitrary  manner  on  the specious plea that the magazine is an in-house one and it is a  matter of its exclusive privilege to print or  refuse  to print  the rejoinder.  By refusing to print and publish  the rejoinder’,  the LIC had violated  respondent’s  fundamental right.   The Court must be careful to see that it  does  not even  unwittingly’  aid the effort to  defeat  the  parties’ right.   Every  free citizen has an undoubted right  to  lay what  sentiments he pleases before the public.   Freedom  to air   one’s  views  is  the  lifeline  of   any   democratic institution and any attempt to stifle, suffocate or gag this right would sound a death-knell to democracy and would  help usher  in autocracy or dictatorship.  This Court has  always placed  a broad interpretation on the value and  content  of Article   19  [1]  (a),  making  it  subject  only  to   the restrictions  permissible under Article 19 [2].  Efforts  by intolerant  authorities  to curb or suffocate  this  freedom have  always  been  firmly repelled,  more  so  when  public authorities have betrayed autocratic tendencies.  The  Court then went on to observe:               broadly  construed to include the  freedom  to               circulate one’s views by words of mouth or  in               writing      or      through      audio-visual               instrumentalities.   It,  therefore,  includes               the right to propagate one’s views through the               print  media i.e., periodicals,  magazines  or               journals  or through any  other  communication               channel  e.g.  the radio and  the  television.               The right extends to the citizen being permit-               ted  to use the media to answer the  criticism               levelled  against the view propagated by  him.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 109  

             The print media, the radio and the tiny screen               play the role of public educators, so vital to               growth   of   a  healthy   democracy.    These               communication channels are great purveyors  of               news and views and make considerable impact on               the  minds of the readers and viewers and  are               known to mould public opinion on vital  issues               of  national importance.  Modem  communication               mediums  advance public interest by  informing               the public of the events and developments that               have  taken  place and thereby  educating  the               voters, a role considered significant for  the               vibrant    functioning   of    a    democracy.               Therefore,  in  any  set-up,  more  so  in   a               democratic set-up like ours, dissemination  of               news  and views for popular consumption  is  a               must and any attempt to deny the same must  be               frowned  upon  unless  it  falls  within   the               mischief of Article 19 [2].This freedom  must,               however,be exercised with               135               circumspection  and care must be taken not  to               trench  on the rights of other citizens or  to               jeopardise public interest.               A constitutional provision is never static, it               is   ever-evolving  and   ever-changing   and,               therefore,   does  not  admit  of  a   narrow,               pedantic  or syllogistic approach.   The  Con-               stitution-makers  employed  broad  phraseology               while the fundamental tights so that they  may               be  able to cater to the needs of  a  changing               society.  Therefore, constitutional provisions               must  receive a broad interpretation  and  the               scope   and  ambit  of  such  provisions,   in               particular the fundamental rights, should  not               be cut down by too astute or too restricted an               approach,  unless  the context  otherwise  re-               quires. 21.The  facts  in  the  other case  which  was  disposed  of simultaneously   by   the  same  judgment  were   that   the Doordarshan  refused to telecast a documentary film  on  the Bhopal Gas Disaster titled ’Beyond Genocide’ produced by the respondent  Ciment  Foundation on the grounds that  [i]  the film was outdated, [ii] it had lost its relevance, [iii]  it lacked  moderation and restraint, [iv] it was not  fair  and balanced, [v] political parties were raising various  issues concerning the tragedy, [vi] claims for compensation by  the victims were sub judice, [vii] the film was.likely to create commotion  in the already charged atmosphere and [viii]  the film  criticised the action of the State Government  and  it was  not permissible under the guidelines.   The  respondent filed  a  writ petition in the High Court on the  ground  of violation of his fundamental right under Article 19 [1]  (a) and for a mandamus to the Doordarshan to telecast the  film. The  High  Court  held that  the  respondent’s  right  under Article  19 [1] (a) obliged the Doordarshan to telecast  the film and directed the Doordarshan to telecast the film at  a time  and date, convenient to it keeping in view the  public interest, and on such terms and conditions as it would  like to impose in accordance with the law.  In the appeal against the  said decision filed in this Court, the Court held  that once  it  has  recognised  that  the  film  maker  has   the fundamental  right under Article 19 [1] (a) to  exhibit  the film,  the onus lies on the party which claims that  it  was entitled  to refuse enforcement of this right by  virtue  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 109  

law made under Article 19 [2] to show that the film did  not conform  to requirements of that law.  Doordarshan  being  a State-controlled  agency  funded by public funds  could  not have  denied access to screen except on valid grounds.   The freedom  conferred  on  a  citizen by  Article  19  [1]  (a) includes the freedom to communicate one’s ideas or  thoughts through a newspaper, a magazine or a movie.   Traditionally, prior restraints, regardless of their form, are frowned upon as  threats  to  freedom of expression  since  they  contain within   themselves  forces  which  if  released  have   the potential  of  imposing  arbitrary-  and  at  times   direct conflict  with the right of another citizen.  Censorship  by prior restraint, therefore, seems justified for the  protec- tion  of  the  society from the ill-effects  that  a  motion picture  may produce if unrestricted exhibition is  allowed. Censorship  is  thus permitted to protect  social  interests enumerated  in Article 19 [2] and Section 5-B of the  Cinema to graph Act.  For this reason, need for prior restraint has been  recognised and our laws have assigned a specific  role to  the censors, as such is the need in a  rapidly  changing societal  structure.   But since  permissible  restrictions, albeit  reasonable, are all the same restrictions, they  are bound  to  be viewed as anathema, in that, they are  in  the nature of 136 curbs  or limitations on the exercise of the right and  are, therefore,  bound  to  be  viewed  with  suspicion,  thereby throwing  a  heavy burden on the authorities  that  seek  to impose them to show that the restrictions are reasonable and permissible in law.  Such censorship must be reasonable  and must answer the test of Article 14. 22.  In this connection, it will be interesting also to know the content of the right to freedom of speech and expression under the First Amendment to the American Constitution where the  freedom of press is exclusively mentioned as a part  of the  said  right  unlike  in  Article  19  [1]  (a)  of  our Constitution.   Further, the restrictions on the  right  are not  spelt out as in our Constitution under Article 19  [2]. But the U.S. Supreme court has been reading some of them  as implicit   in  the  right.   In  principle,  they  make   no difference  to  the content of the right to the  freedom  of speech and expression under our Constitution. 23.  In National Broadcasting Company v.     United   States of  America  [319 US 190238 : 87 L ed 1344],  it  was  held, inter  alia, that the wisdom of regulations adopted  by  the Federal  Communications Commission is not a matter  for  the courts,  whose  duty is at an end when they  find  that  the action  of the Commission was based upon findings  supported by  evidence, and was made pursuant to authority granted  by Congress. 24.  In  Joseph Burstyn v Lewis A. Wilson [343 US 495: 96  L ed  1098] a licence granted for the exhibition of  a  motion picture   was   rescinded  by  the  appropriate   New   York authorities   -on   the   ground  that   the   picture   was "sacrilegious" within the meaning of a statute requiring the denial  of  a  licence if a film  was  "sacrilegious".   The statute  was upheld by the State courts.  The Supreme  Court unanimously  reversed  the  decision of  the  State  courts. Disapproving  a  contrary theory expressed  in  Mutual  Film Corp. v. Industrial Com. of Ohio [236 US 230: 59 L ed  442], six members of the Supreme Court in an opinion of Clerk,  J. held  that  the basic principles of freedom  of  speech  and press   applied  to  motion  pictures,  even  though   their production,  distribution, and exhibition is  a  large-scale business  conducted for profit.  The court  recognised  that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 109  

motion  pictures are not necessarily subject to the  precise rules  governing any other particular method of  expression, but  found  it not necessary to decide whether a  State  may censor  motion pictures under a clearly drawn  statute,  and limited its decision to the holding that the  constitutional guarantee  of  free speech and press prevents a  state  from banning a film on the basis of a censor’s conclusion that it is  "  sacrilegious".   Reed, J.  in  a  concurrent  opinion emphasised  that  the  question as to whether  a  state  may establish a system for the licensing of motion pictures  was not foreclosed by the court’s opinion.  Frankfurter, J. with Jackson and Burton, JJ. held that the term "sacrilegious" as used in the statute was unconstitutionally vague. 25.In  Red  Lion Broadcasting Co. etc. el.  al.  v.  Federal Communications Commission et. al. and United Slates et.  al. v.  Radio Television News Directors Association et al.  [395 US 367: 23 L Ed 2d 3711 which two cases were disposed of  by common judgment, the facts were that in the first case,  the Broadcasting  Company  carried  as  a  part  of   "Christian Crusade"  series,  a 15-minute broadcast in  which  a  third person’s honesty and character were at- 137 tacked.   His demand for free reply time was refused by  the broadcasting  station.   Federal  Communications  Commission [FCC]  issued  a declaratory order to the  effect  that  the broadcasting station had failed to meet its obligation under the  FCC’s  fairness doctrine.  The Court upheld  the  FCC’s directions. 26.In the second case, the FCC after the commencement of the litigation in the same case made the personal attack  aspect of  the  fairness  doctrine more precise  and  more  readily enforceable.   The Court upheld the FCC’s  rules  overruling the  view taken by the Court of Appeals that the rules  were unconstitutional  as  abridging the freedom  of  speech  and press. 27.The Court dealing with the two cases held:               "Just  as the Government may limit the use  of               sound-amplifying   equipment  potentially   so               noisy  that  it drowns out  civilized  private               speech,  so may the Govenrnment limit the  use               of  broadcast  equipment.  The right  of  free               speech  of a broadcaster, the user of a  sound               track,  or  any  other  individual  does   not               embrace  a right to snuff out the free  speech               of others.               x x x x x x x               for   public  broadcasting  were  limited   in               number, it was essential for the Government to               tell  some  applicants  that  they  could  not               broadcast  at all because there was  room  for               only a few.               x x x x x x x               Where there are substantially more individuals               who   want   to  broadcast  than   there   are               frequencies  to allocate, it is idle to  posit               an  unabridgeable  First  Amendment  right  to               broadcast  comparable  to the right  of  every               individual  to speak, write, or  publish.   If                             100 persons want broadcast licences but  there               are  only 10 frequencies to allocate,  all  of               them  may have the same "right" to a  license;               but   if   there  is  to  be   any   effective               communication  by  radio, only a  few  can  be               licensed and the rest must be barred from  the               airwaves.   It would be strange if  the  First

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 109  

             Amendment, aimed at protecting and  furthering               communications, prevented the government  from               making   radio   communication   possible   by               requiring   licenses  to  broadcast   and   by               limiting  the number of licenses so as not  to               overcrowd the spectrum.               This  has  been  the consistent  view  of  the               Court.  Congress unquestionably has the  power               to  grant and deny licenses and  to  eliminate               existing  stations...  No  one  has  a   First               Amendment right to a license or to  monopolize               a  radio frequency; to deny a station  license               because "the public interest" requires it  "is               not a denial of free speech.               By  the  same  token,  as  far  as  the  First               Amendment is concerned those who are  licensed               stand  no better than those to  whom  licenses               are refused.  A license permits  broadcasting,               but  the licensee has no constitutional  right               to  be  the one who holds the  license  or  to               monopolize a radio frequency to the  exclusion               of his fellow citizenis.  There is nothing  in               the   First  Amendment  which   prevents   the               Govenunent from requiring a licensee to  share               his  frequency  with  others  and  to  conduct               himself   as   a  proxy  or   fiduciary   with               obligations to present those views and  voices               which are representative of his community  and               which would otherwise, by necessity, be barred               from the airwaves.               This is not to say that the First Amendment is               irrelevant to public broad-               138               casting.  On the contrary, it has a major role               to  play  as the Congress  itself  recognized,               which forbids FCC interference with "the right               of    free   speech   by   means   of    radio               communication.               Because of the scarcity of radio  frequencies,               the Government is permitted to put  restraints               on  licensees in favour of others whose  views               should  be  expressed on this  unique  medium.               But  the  people  as  a  whole  retain   their               interest  in  free speech by radio  and  their               collective  right to have the medium  function               consistently with the ends and purposes of the               First  Amenchnent.   It is the  right  of  the               viewers  and listeners, not the right  of  the                             broadcasters, which is paramount...               It  is the purpose of the First  Amendment  to               preserve  an uninhibited marketplace of  ideas               in which truth will ultimately prevail, rather               than  to  countenance monopolization  of  that               market, whether it be by the Government itself               or  a private licensee... It is the  right  of               the  public  to  receive  suitable  access  to               social, political, esthetic, moral, and  other               ideas  and experiences which is crucial  here.               That   right  may  not   constitutionally   be               abridged either by Congress or by the FCC...               right  on  licensees to  prevent  others  from               broadcasting  on t ’their" frequencies and  no               right to an unconditional monopoly of a scarce               resource  which  the  Government  has   denied               others the right to use.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 109  

             x x x x x x x               Nor  can we say that it is  inconsistent  with               the  First  Amendment  goal  of  producing  an               informed public capable of conducting its  own               affairs  to  require a broadcaster  to  permit               answers  to personal attacks occurring in  the               course of discussing controversial issues,  or               to  require  that the political  opponents  of               those  endorsed  by  the station  be  given  a               chance   to  communicate  with   the   public.               Otherwise,  station owners and a few  networks               would  have  unfettered  power  to  make  time               available only to the highest bidders, to com-               municate  only  their  own  views  on   public               issues,  people and candidates, and to  permit               on  the air only those with whom they  agreed.               There  is no sanctuary in the First  Amendment               for unlimited private censorship operating  in               a  medium  not open to all.  "Freedom  of  the               press from governmental interference under the               First  Amendment does not sanction  repression               of that freedom by private interests.               x x x x x x x               licensees given the privilege of using  scarce               radio  frequencies as proxies for  the  entire               community, obligated to give suitable time and               attention to matters of great public  concern.               To  condition  the  granting  or  renewal   of               licenses   on   a   willingness   to   present               representative     community     views      on               controversial  issues is consistent  with  the               ends  and  purposes  of  those  constitutional               provisions   forbidding  the   abridgment   of               freedom  of speech and freedom of  the  press.               Congress  need  not stand idly by  and  permit               those  with  licenses to ignore  the  problems               which beset the people or to exclude from  the               airways  anything  but  their  own  views   of               fundamental questions....               Licenses to broadcast do not confer  ownership                             of   designated  frequencies,  but  only   the               temporary privilege of using them." 28.Referring to the contention that although at one time the lack of available frequencies for all who wished to use them justified the Government’s choice, of those 139 who would best serve the public interest by acting as  proxy for  those who would present differing views, or  by  giving the latter access directly to broadcast facilities, the said condition no longer prevailed to invite continuing  control, the Court held:               "Scarcity is not entirely a thing of the past.               Advances  in  technology,  such  as  microwave               transmission,  have  led  to  more   efficient               utilisation  of  the frequency  spectrum,  but               uses for that spectrum have also grown  apace.               Portions of the spectrum must be reserved  for               vital    uses    unconnected    with     human               communication, such as radio-navigational aids               used by aircraft-and vessels.  Conflicts  have               even  emerged between such vital functions  as               defense  preparedness and  experimentation  in               methods of averting n-ddair collisions through               radio warning devices.  "Land mobile services"               such  as police, ambulance,  fire  department,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 109  

             public   utility,  and  other   communications               system  have  been occupying  an  increasingly               crowded portion of the frequency spectrum  and               there  are, apart from licensed amateur  radio               operators’  equipment, 5,000,000  transmitters               operated on the "citizens’ band" which is also               increasingly  congested.   Among  the  various               uses  for  radio  frequency  space,  including               marine,   aviation,  amateur,  military,   and               common carrier users, there are easily  enough               claimants  to permit use of the whole with  an               even smaller allocation to broadcast radio and               television uses than now exists.               Comparative    hearings   between    competing               applicants for broadcast spectrum space are by               no  means  a  thing of the  past.   The  radio               spectrum  has  become so.  congested  that  at               times  it  has been necessary to  suspend  new               applications.    The   very   high   frequency               television  spectrums, in the country’s  major               markets,  ahmost entirely  occupied,  although               space   reserved  for  ultra  high   frequency               television transmission, which is a relatively               recent  development as a  commercially  viable               alternative,  has  not  yet  been   completely               filled.               The rapidity with which technological advances               succeed  one another to create more  efficient               use of spectrum space on the one hand, and  to                             create new uses for that space by ever growing               numbers  of  people  on the  other,  makes  it               unwise  to speculate on the future  allocation               of  that space.  It is enough to say that  the               resource  is one of considerable  and  growing               importance   whose   scarcity   impelled   its               regulation   by   an  agency   authorised   by               Congress.   Nothing in this record, or in  our               own researches, convinces us that the resource               is  no  longer one for which  there  are  more               immediate  and  potential  uses  than  can  be               accommodated,  and for which wise planning  is               essential.   This  does not mean,  of  course,               that   every  possible  wavelength   must   be               occupied  at every hour by some vital  use  in               order  to sustain the congressional  judgment.               The  substantial capital  investment  required               for many uses, in addition to the potentiality               for confusion and interference inherent in any               scheme     for    continuous     kaleidoscopic               reallocation  of all available space may  make               this  unfeasible.  The allocation need not  be               made  at  such  a  breakneck  pace  that   the               objectives  of the allocation  are  themselves               imperiled.               Even   where  there  are  gaps   in   spectrum               utilization,  the fact remains  that  existing               broadcasters have often attained their present               position  because of their initial  government               selection  in competition with  others  before               new   technological   advances   opened    new               opportunities   for   further   uses.     Long               experience  in broadcasting, confirmed  habits               of listeners and viewers, network affiliation,               and  other advantages in  program  procurement               give   existing  broadcasters  a   substantial

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 109  

             advantage  over new entrants, even  where  new               entry is technologically possible.  These                                    140               advantages  are  the  fruit  of  a   preferred               position  conferred by the  Government.   Some               present possibility for new entry by competing               stations  is not enough, in itself, to  render               unconstitutional  the Government’s  effort  to               assure that a broadcaster’s programming ranges               widely enough to serve the public interest.               In   view   of  the  scarcity   of   broadcast               frequencies,  the  Government’s  role  in  al-               locating those frequencies, and the legitimate               claims  of those unable  without  governmental               assistance to gain access to those frequencies               for  expression  of their views, we  hold  the               regulations and ruling at issue here are  both               authorized by statute and constitutional." 29.  In Columbia Broadcasting System etc. etc. v. Democratic National Committee etc. etc.[412 US 94 : 36 L Ed 2d 772], in separate  decisions  rejecting  the  contentions  that   the general  policy  of certain radio and  television  broadcast licensees  of not selling any editorial advertising time  to individuals or groups wishing to speak out on public  issues violated  the  Federal Communications Act of  1934  and  the First  Amendment, such contentions having been  asserted  in actions instituted by a national Organisation of businessmen opposed  to United States involvement in Vietnam and by  the Democratic  National Committee, the US Court of Appeals  for the  District of Columbia Circuit reversed  the  Commission. However, the US Supreme Court reversed the Court of Appeals. Burger, C.J. expressing the views of the six members of  the Court held:               "...[1] the First Amendment issues involved in               the case at bar had to be evaluated within the               framework  of  the  statutory  and  regulatory               scheme  that  had developed  over  the  years,               affording  great  weight to the  decisions  of               Congress  and  the experience of  the  Federal               Communications  Commission, and [2] under  the               Federal    Communications    Act    and    the               Commission’s  "fairness  doctrine,"  broadcast               licensees had broad journalistic discretion in               the area of discussion of public issues.               It was also held, expressing the views of five               members of the court [Part IV of the opinion],               that [3] neither the public interest standards               of  the  Federal Communications  Act  nor  the               First  Amendment,  assuming  that  there   was               governmental   action  for   First   Amendment               purposes,  required  broadcasters  to   accept               editorial advertisements, notwithstanding that               they  accepted commercial advertisements,  and               [4] the Commission was justified in concluding               that  the public interest would not be  served               by  a  system affording a right of  access  to               broadcasting  facilities  for  paid  editorial               advertisements,  since such a system would  be               heavily  weighted in favor of the  financially               affluent,    :would    jeopardize    effective               operation   of  the   Commission’s   "fairness               doctrine",   and  would  increase   government               involvement  in broadcasting by requiring  the               Commission’s   daily  supervision  of   broad-               casters’ activities...... a broadcaster’s  re-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 109  

             fusal  to accept any editorial  advertisements               was  not governmental action for  purposes  of               the    First    Amendment,    since    private               broadcasters,   even   though   licensed   and               regulated  to some extent by  the  government,               were  not instrumentalities or  "partners"  of               the  government for First Amendment  purposes,               and  since  the Commission,  in  declining  to               reject  the  broadcasters’  policies   against               accepting  editorial -advertisements, had  not               fostered or required such policy". 30.It may be mentioned here that unlike in this country,  in United States, the private individuals and institutions are 141 given  licences to have their own broadcasting stations  and hence  the  right of the private  broadcasters  against  the right  of others who did not own the  broadcasting  stations but asserted their right of free speech and expression  were pitted against each other in this case and the decision  has mainly  turned  upon the said balancing of  rights  of  both under  the First Amendment.  It was in substance  held  that any direction to the private broadcasters by the  Government to  sell  advertising  time to speak out  on  public  issues violated the protection given by the First Amendment to  the private broadcasters against Government control. 31.In  Federal  Communications  Commission et  al.  v.  WNCN Listeners  Guild  et al. [450 Us 582 : 67 L Ed  2d  521],  a number  of  citizen  groups  interested  in  fostering   and preserving  particular entertainment formats petitioned  for review  of  the Policy Statement of  Federal  Communications Commission [FCC] in the US Court of Appeals for the District of  Columbia  Circuit.   The  Court  held  that  the  Policy Statement  was contrary to the Communications Act  of  1934. The  US Supreme Court reversed the decision of the Court  of Appeals  by majority, holding, inter alia, that  the  Policy Statement  was not inconsistent with the Communications  Act since  the  FCC  provided a  rational  explanation  for  its conclusion  that reliance on the market was the best  method of promoting diversity in entertainment formats and that the FCC’s  judgment  regarding how the public interest  is  best served  was entitled to substantial judicial  deference  and its  implementation  of the public interest  standard,  when based  on a rational weighing of competing policies was  not to  be set aside.  Marshall and Brennan, JJ., however,  held that  in  certain  limited circumstances,  the  FCC  may  be obliged  to  hold a hearing to consider whether  a  proposed change in a licensee’s entertainment programme format is  in the  public  interest and that the  FCC’s  Policy  Statement should  be vacated since it did not contain a  safety  valve procedure  that allowed the FCC the flexibility to  consider applications  for exemptions based on special  circumstances and  since it failed to provide a rational  explanation  for distinguishing  between entertainment and  non-entertainment programming  for purposes of requiring Commission review  of format changes. 32.In City of Los Angeles & Department of Water and Power v. Preferred Communications, Inc. [476 US 488: 90 L ed 2d 480], a  cable television company asked a public utility  and  the city  of  Los  Angeles’s  water  and  power  department  for permission to lease space on their utility poles in order to provide  cable television service to part of the city.   The respondent-company  was  told  that  it  must  first  obtain franchise from the appellant-City which refused to grant one on grounds that the company had failed to participate in  an auction  that was to award a single franchise in  the  area.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 109  

The  respondent sued claiming violation of his  right  under the  free  speech  clause of the First  Amendment.   It  was alleged in the complaint that there was sufficient  physical capacity  and  the economic demand in the area at  issue  to accommodate more than one cable company and that the  city’s auction process allowed it to discriminate among applicants. As against this, the appellant argued that lack of space  on public utility structures, the limited economic demand,  and the practical and aesthetic disruptive effects on the public right of way justified 142 its  decision.  The District Court dismissed the  complaint. On  appeal,  the US Court of Appeals reversed  and  remanded ’,or further proceedings.  The US Supreme Court affirmed the Court  of Appeals.  Rehnquist, J. expressing  the  unanimous decision of the Court held:               "...[1]that  the  cable  television  company’s               complaint  should  not  have  been  dismissed,               since  the activities in which  it  allegedly,               sought  to  engage  plainly  implicated  First               Amendment  interests where they  included  the               communications  of messages on a wide  variety               of  topics and in a wide variety  of  formats,               through original programming or by  exercising               editorial  discretion over which  stations  or               programs to include in its repertoire, but [2]               that it was not desirable to express any  more               detailed views on the proper resolution of the               First Amendment question without a more  thor-               oughly  developed  record  of  proceedings  in               which the parties would have an opportunity to               prove  those disputed factual assertions  upon               which they relied." 33.The  position of law on the freedom of speech  and  press has been explained in [16 Am Jur 2d 3431 as under:               "The  liberty  of the press  was  initially  a               right to publish without a license that  which               formerly could be published only with one, and               although this freedom from previous. restraint               upon  publication  could not  be  regarded  as               exhausting   the  guaranty  of  liberty,   the               prevention  of  that restraint was  a  leading               purpose   in   the  adoption  of   the   First               Amendment.    It  is  well  established   that               liberty  of the press historically  considered               and  taken  up by  the  Federal  Constitution,               means  principally, although not  exclusively,               immunity    from   previous   restraints    or               censorships.  Stated differently, the rule  is               that  an essential element of the  liberty  of               the press is its freedom from all  censorships               over  what  shall be published  and  exemption               from control, in advance, as to what shall ap-               pear in print....               x    x      x    x     x x               The  freedom of speech and press embraces  the               right    to   distribute    literature,    and               necessarily  protects  the  right  to  receive               literature  which is distributed.  It is  said               that liberty in circulating is as essential to               the  freedom as liberty of  publishing,  since               publication  without circulation would  be  of               little value.               The  right  or privilege of  free  speech  and               publication,  guaranteed by the  constitutions

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 109  

             of  the  United  States  and  of  the  several               states,  has  its limitations and  is  not  an               absolute   right,  although  limitations   are               recognised only in exceptional cases.               x x     x    x x      x               The question of when the right of free  speech               or press becomes wrong by excess is  difficult               to determine.  Legitimate attempts to  protect               the  public,  not  from  the  remote  possible               effects   of  noxious  ideologies,  but   from               present excesses of direct, active conduct are               not  presumptively bad because they  interfere               with  and  in  some  of  their  manifestations               restrain  the exercise of the First  Amendment               rights.   The issue in every case  is  whether               the words used are used hi such  circumstances               and are of such a nature as to create a  clear               and present danger that they will bring  about               substantive  evils which the federal or  state               legislatures have a right to prevent; it is  a               question of proximity and degree.               x x     x x x x x               The  freedoms  of  speech and  press  are  not               limited to particular media of ex-               143               pression.   Verbal expression is,  of  course,               protected,  but  the right  to  express  one’s               views  in  an orderly fashion extends  to  the               communication   of  ideas  by  handbills   and               literature  as  well as by  the  spoken  word.               Picketing  carried on in a non labor  context,               when  free  from coercion,  intimidation,  and               violence, is constitutionally guaranteed as  a               right of free speech." 34.  In  "Civil Liberties & Human Rights" authored by  David Feldman,   the  justification for and limits of  freedom  of expression are stated  in the following words. The liberty to express one’s self freely is important for  a number  of reasons.  Firstly, self-expression is a  signifi- cant   instrument  of  freedom  of  conscience   and   self- fulfillment.   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 ex- change   and  evaluation  of  theories,   explanations   and discoveries, and lastly, it helps to promulgate a  society’s cultural  values and facilitates the debate about them,  ad- vancing the development and survival of civilisation. 36.Referring to the reasons for regulating the  broadcasting media, the learned author     has  stated that,  first,  the Government  realises  the  potential  of  channels  of  mass communication  for contributing to democracy or  undermining

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 109  

it.  They  hoped  to  foster a  public   service   ethos  in broadcastings  so  that it would be a medium  for  educating and improving  the population. Secondly in order to do  this its was necessary to keep the media  of mass  communications from  having  programme policy dictated entirely  by  market forces.   A strong pubic sector and regulation of the  inde- pendent sector when one started to operate, were called for. Thirdly, when commercial broadcasters appeared on the scene, 1  and a regulatory scheme was being developed for them,  it was thought to be important to preserve a diversity of ideas by  preventing oligopolistic concentrations of power in  the hands  of  a  few,  usually  rich  and  conservative   media magnates,  and to ensure that licences were granted only  to people  who  could be expected not to abuse  the  privilege. The need to preserve propriety has been a motivating  factor in  the regulation of commercial broadcasting over  much  of the  world.   Fourthly,  government  hoped  to  ensure  that civilised  standards  were  maintained,  to  uphold   social values.    Fifthly,  wave  lengths  for  broadcasting   were limited.    This  purely  technical  consideration   sharply distinguishes broadcasting from newspapers, and justifies  a higher level of regulation.  In theory, if not in  practice, there  is nothing to prevent any number of newspapers  being pub-                             144 lished  simultaneously.   The  only  controlling   mechanism needed  is  that  of market forces.  This  is  not  true  of broadcasting.   Some  control over the allocation  of  wave- lengths  is  ’needed  in  order to  ensure  that  there  are sufficient for all legitimate broadcasters.  Lastly, another legitimate  object of national regulation is to protect  the intellectual   property  rights  of  programme  makers   and broadcasters.   It  is  permissible on this  ground  for  an Organisation  to  prevent  people  from  getting  access  to programmes  without paying proper licence fees.  One way  of preventing this is to encode programme transmissions and  to restrict access to decoders to people who pay the fee. 37.  The  freedom to receive and to communicate  information and ideas without interference is an important aspect of the freedom  of  free  speech and expression.  We  may  in  this connection refer to Article 10 of the European Convention on Human Rights which states as follows:               "  10.1. Everyone has the right to freedom  of               expression.  This right shall include  freedom               to  hold  opinions and to receive  and  impart               information and ideas without interference  by               public authority and regardless of  frontiers.               This  article  shall not prevent  States  from               requiring   the  licensing  of   broadcasting,               television or cinema enterprises.               2.    The exercise of these freedoms, since it               carries  with it duties and  responsibilities,               may   be   subject   to   such    formalities,               conditions,  restrictions or penalties as  are               -prescribed  by  law and are  necessary  in  a               democratic  society, in the interests  of  na-               tional security, territorial integrity or pub-               lic safety, for the prevention of disorder  or               crime, for the protection of health or morals.               for the protection of the reputation or rights               of  others, for preventing the  disclosure  of               information  received  in confidence,  or  for               maintaining the authority and impartiality  of               the judiciary." 38.The  next  question which is required to be  answered  is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 109  

whether there is any distinction between the freedom of  the print  media and that of the electronic media such as  radio and  television,  and if so, whether  it  necessitates  more restrictions on the latter media. 39.  Eric  Barendt  in his book titled  "  Broadcasting  Law [1993 Edn.] which presents a comparative study of the law in five’  legal systems, viz., Great Britain, France,  Germany, Italy  and  United  States of America, has  dealt  with  the subject succinctly.  He has referred to a number of  reasons which  are  generally put forward  to  justify  broadcasting regulations  and  has dealt with each of  them.   The  first reason  advanced is that because the airwaves are  a  public resource,  the Government or some agency on its  behalf,  is entitled to license their use for broadcasting on the  terms it  sees  fit.  A similar argument can now  be  deployed  in respect  of cable broadcasting where an authority must  give permission before roads can be dug up for laying cable.  The learned  author states that the case is unconvincing for  it infers  that  it  is right for the  Government  to  regulate broadcasting  from  the fact that it has opportunity  to  do this.   It  would be perfectly possible  for  Government  to allocate frequencies for cable franchises without  programme conditions  on the basis of a competitive tender  and  allow the resale by the purchaser.  The argument, according to the author,  therefore,  does  not work.  It  does  not  justify broadcasting  regulations  but  almost explains  how  it  is feasible.    The  author,  however,  does  not  accept   the objection to this 145 reason   for   regulation  that  thereby   Government   acts improperly  by  using  their  licensing  power  to  purchase broadcasters’ constitutional right to speech.  According  to the  author, this argument is less persuasive as it  assumes that  broadcasters enjoy the same constitutional  rights  of free  speech as individuals talking in a bar or  leafletting in  a  high street.  The author then deals with  the  second reason given for regulation of broadcasting, viz.,  scarcity of frequencies and points out that this argument referred to in Red Lion Broadcasting case [supra] is less clear than ap- pears  at  first sight, since it is not  clear  whether  the scarcity  of  frequencies  refers  to  the  limited   number allocated by the Government as available for broadcasting or to  the actual numerical shortage of broadcasting  stations. If it is the former, the scarcity is an artificial  creation of the Government rather than a natural phenomenon since  it reserves  a number of frequencies for the use of  the  army, police  and other public services.  The Government  is  then not  in  a  good  position  to  argue  for  restrictions  on broadcasters’  freedom.  The author then points out that  as far  as  the  actual scarcity of  broadcasting  stations  is concerned,  there has been an increase in the last 20  years in  the  broadcasting stations in the  United  States  while there  are fewer newspapers than there used to be.   Similar developments have occurred in European countries in the same period, especially, since the advent of cable and satellite. Further  the  scarcity  argument  cannot  be  divorced  from economic  considerations.  The shortage of  frequencies  and the  high cost of starting up broadcasting  channel  explain their dearth in comparison with the number of newspapers and magazines in 1961.  However, it is now probably as difficult to  finance  a new newspaper as it is a  private  television channel, if not more so. Lastly, the author points out  that the  scarcity argument is much less tenable than it used  to be.   Cable and satellite have significantly  increased  the number  of  available or potentially available  channels  so

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 109  

that  there  are more broadcasting outlets  than  there  are national or local daily newspapers.  Dealing with the  third reason  advocated for giving differential treatment  to  the broadcasting, viz., the character of the broadcasting media, the  author points out that it is said that  television  and radio,  are  more  influential on public  opinion  than  the press, or at least are widely thought to be so. The majority of  the US Supreme Court in FCC v. Pacifica Foundation  [438 US  726] said that they intrude into the home and  are  more pervasive  and are more difficult to control than the  print media.   In particular, it is hard to prevent children  from being  exposed to broadcast while it is relatively  easy  to stop them looking at magazines and papers which in any  case they  will not be able to read or purchase.   These  grounds underpin  the  extension of legal control  in  Britain  over violent   and  sexually  explicit  programmes  through   the establishment  of  Broadcasting  Standard  Council  and  the strengthening   of   the  impartiality  rules.    In   Third Television Case [57 B Verf GE 295, 3 22-3 (198 1)] the  Ger- man Constitutional Court dealing with a different version of this  argument  has  held that regulation  is  necessary  to guarantee  pluralism and programme variety, whether  or  not there  is a shortage of frequencies and  other  broadcasting outlets.  The free market will not provide for  broadcasting the  same variety found in the range of press  and  magazine titles.  Hence programme content should be regulated and the media  monopolies should be cut down by the  application  of anti-trust laws.  Thus both the 146 US  and  the  German arguments lay stress on  the  power  of television and its unique capacity to influence the  public. According to the learned author, the arguments are difficult to  assess.   Broadcasting does not intrude  into  the  home unless listeners and viewers want it to be.  From the  point of  view  of  constitutional principles it is  not  easy  to justify  imposition of greater limits on the medium  on  the ground  that it is more influential than the written  words. It  cannot  be  right to subject more  persuasive  types  of speech  to  greater restraints than  those-imposed  on  less effective varieties.  The author, however, accepts the  view of  the  majority of the US Supreme Court in  Pacifica  case [supra]    which   regarded    broadcasting,    particularly television, as a uniquely pervasive presence in the lives of most  people.  More time is spent watching  television  than reading.   The  presence of sound and picture  in  any  home makes  it  an  exceptional potent medium.  It  may  also  be harder to stop children having access to ’adult material’ on television  than  to pornographic magazines.  This  may  not apply  to  subscription  channels,  enjoyment  of  which  is dependent  on  a  special  decoder.   He  also  agrees  that experience  in the United States and more recently in  Italy suggests  that a free broadcasting market does  not  produce the  same variety as the press and book  publishing  markets do.    However,   the  author  states   that   these   three justifications for broadcasting regulation are  inconclusive and  it is doubtful whether the case is powerful  enough  to justify the radically different legal treatment of the press and  broadcasting media.  A separate question, according  to the  author,  is whether it is appropriate  to  continue  to treat  radio  in the same way as television since  there  is generally  a  large choice of local, if not  national  radio programmes  and  it is hard to believe that it  exercises  a dominating  influence on the formation of public  attitudes. The  same  question arises In respect of  cable  television. Although  a  licence  has to be obtained  from  a  licensing

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 27 of 109  

authority, several franchises may be physically accommodated and a wide band cable system may be able to carry upto 30 or 40 or even more channels.  The scarcity rational, therefore, seems  inapplicable  to  cable, and further it  is  hard  to believe  that  this mode of broadcasting  exercises  such  a strong  influence  that stringent  programme  regulation  is justifiable.   Dealing with the last reason advocated  by  a leading  American  scholar,  Lee Bollinger  in  his  article "Freedom of the Press and Public Access" and his essay  "The Rational   of  Public  Regulation  of  the  Media"  and   in "Democracy  and  the MassMedia" [Cambridge (1990)]  for  the divergent treatment of the press and broadcasting media, the author  points out that Bollinger accepts that there  is  no fundamental  difference  in the character of  the  two  mass media,  but argues that broadcasting being still  relatively new  means of mass communication, it is understandable  that society has wanted to regulate it just as it has treated the cinema  with  more caution than it has  the  theater.   This argument  of  Bollinger is based on the history of  the  two media.   Bollinger’s  second  argument is  that  society  is entitled to remedy the deficiencies of an unregulated  press with a regulated broadcasting system which may be preferable to  attempting  to  regulate both  sectors...  According  to Bollinger,  regulation poses the danger of  Government  con- trol, a risk which is reduced if one branch of the media  is left  free.   The  author  attacks  this  reason  given   by Bollinger  and states that it is an  unsatisfactory  compro- mise.  If the regulation of the press is al- 147 ways  wrong and perhaps unconstitutional and if there is  no significant  difference  between the two media,  it  follows that  the  latter should also be  wholly  unregulated.   The author also points out that Bollinger’s argument attempts to justify  the  unequal  treatment of  the  liberties  of  the broadcasters  and newspaper proprietors and editors when  in all material respects, their position is identical. 40.  The author then refers to the rights of viewers     and listeners which is referred to     in Red Lion  Broadcasting case [supra] by     White, J. of the US Supreme Court in the following words:               "But  the  people  as  a  whole  retain  their               interest  in  free speech by radio  and  their               collective  right to have the medium  function               consistently with the ends and purposes of the               First  Amendment.  It is the right of  viewers               and   listeners,   not  the   right   of   the               broadcasters, which is paramount". 41.The author concludes by pointing out that the cases  from a  variety  of  jurisdictions  show  that  the  broadcasters programme  freedom  when exercised  within  the  constraints imposed  by the regulatory authority, has priority over  the rights  claimed by viewers to see a particular programme  or to retain a particular series in the schedule.  On the other hand,  the  interests of viewers and listeners  justify  the imposition  of  programme  standards  which  would  not   be countenanced for the press or publishing.  It is  recognised by  the  constitutional courts of  European  countries  that viewers  and  listeners have interests, and they  should  be taken  into account in the interpretation’  of  broadcasting freedom.    But   the  balancing  of  the  rights   of   the broadcasters  and viewers is done by  regulatory  authority. Courts  are  understandably  reluctant  to  contemplate  the interference  with  administrative  discretion  which  would result from their recognition of individual rights. 42.Dealing  with  the right to access to  broadcasting,  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 28 of 109  

author  points  out that the theoretical  argument  in  this connection  is  that  freedom of  speech  means  freedom  to communicate effectively to a mass audience and nowadays that entails  access  to the mass media.  The  rights  to  access provide  some  compensation  for the  expropriation  by  the public monopoly of the freedom to broadcast.  In the absence of a justification for that monopoly, there would be a right to  broadcast in the same way that everyone has a  right  to say  or  write what he likes in his own  home.   This  would justify the recognition of access to both public and private channels.   The  -author  states that  these  arguments  are unacceptable.   Freedom of speech does not entail any  right to  communicate effectively in the sense that a citizen  can call  upon the State to provide him with the most  effective means  for the purpose.  He points out that no legal  system provides  its citizens with the means and  opportunities  to address  the  Public  in the way  each  considers  most  ap- propriate.   Moreover, to grant everyone a right to  use  an access channel, even if available all the time, would be  to give every adult a worthless right to use it for a second  a year.   Limited  access rights, enjoyed  only  by  important political and social groups may be more valuable.  But  even their  recognition would involve some interference with  the editorial  freedom  of  channel  controllers  and  programme schedulers and it may be more difficult as a Consequence  to achieve a balanced range or programmes.  Further, a  channel might find it hard to create any clear identity for 148 itself, if it had to devote a substantial amount of time  to relaying the programmes made by pressure groups.  There  are also practical objections to access rights.  It may be  very difficult  to  decide, for example, which groups are  to  be given access, and when and how often such programmes are  to be shown.  There is a danger that  some   groups   will   be unduly privileged.  These points weigh particularly  heavily against the recognition of constitutional rights, for courts are  not  competent to formulate them  with  any  precision. Dealing  with  the constitutional rights of  access  to  the broadcasting  media, the author concludes  that  individuals and  groups do not have constitutional rights of  access  to the  broadcasting media.  Access rights can only  be  framed effectively  by legislature or by specialist  administrative agencies.   It does not mean that statutory or other  access rights  do not have a constitutional dimension.  The  courts may lay down that some provisions should be made for  access as  a matter of constitutional policy.  This, however,  does not mean that there are individual constitutional rights  to access. 43.  In this connection, the author also points out that the development of cable poses new access problems.  Operator of the cable may himself have rights of free speech which would be infringed by a requirement to honour access claims.   The scarcity  and  economic  arguments  which  are  employed  to justify  broadcasting  regulation  and,  therefore,   access provision, may be less applicable in the context of cable. 44.  We  may now summarise the law on the freedom of  speech and  expression  under Article 19 [1] (a) as  restricted  by Article  19  [2].   The freedom  of  speech  and  expression includes right to acquire information and to disseminate it. Freedom  of  speech and expression is  necessary,  for  self expression  which is an important means of  free  conscience and  self fulfillment.  It enables people to  contribute  to debates  of social and moral issues.  It is the best way  to find  a truest model of anything, since it is  only  through it,  that the widest possible range of ideas can  circulate.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 29 of 109  

It  is the only vehicle of political discourse so  essential to  democracy.   Equally important is the role it  plays  in facilitating artistic and scholarly endeavours of all sorts. The  right  to  communicate, therefore,  includes  right  to communicate  through  any media that  is  available  whether print  or electronic or audio-visual such as  advertisement, movie,  article, speech etc.  That is why freedom of  speech and  expression includes freedom of the press.  The  freedom of  the press in terms includes right to circulate and  also to  determine the volume of such circulation.  This  freedom includes  the  freedom  to communicate  or  circulate  one’s opinion without interference to as large a population in the country as well as abroad as impossible to reach. 45. This fundamental right can be limited only by reasonable restrictions  under  a  law made for  purpose  mentioned  in Article 19 [2] of the Constitution. 46.   The  burden  is  on  the  authority  to  justify   the restrictions.  Public order is not the same thing as  public safety and hence no restrictions can be placed on the  right to  freedom  of  speech and expression on  the  ground  that public  safety  is  endangered.   Unlike  in  the   American Constitution, limitations on fundamental rights are specifi- cally  spelt out under Article 19 [2] of  our  Constitution. Hence no restrictions can 149 be  placed on the right to freedom of speech and  expression on grounds other than those specified under Article 19 [2]. 47.  What distinguishes the electronic media like       they television from the print media    or other media is that it has both audio and  visual appeal and has a  more  pervasive presence.   It  has  a greater impact on the  minds  of  the viewers and is also more readily accessible to all including children at home.  Unlike the print media, however, there is a built-in limitation on the use of electronic media because the  airwaves are a public property and hence are  owned  or controlled by the Government or a central national authority or they are not available on account of the scarcity,  costs and competition. 48.  The next question to be answered in this connection  is whether there can be a monopoly in broadcasting/telecasting. Broadcasting  is a means of communication and, therefore,  a medium  of  speech and expression.  Hence  in  a  democratic polity,  neither  any  private  individual,  institution  or Organisation  nor any Government or Government  Organisation can  claim exclusive right over It.  Our  Constitution  also forbids  monopoly either in the print or  electronic  media. The  monopoly  permitted  by our  Constitution  is  only  in respect  of  carrying  on a  trade,  business,  industry  or service  under Article 19 [6] to subserve the  interests  of the  general public.  However, the monopoly in  broadcasting and  telecasting  is  often claimed  by  the  Government  to utilise  the  public resources in the form  of  the  limited frequencies  available  for the benefit of  the  society  at large.   It  is Justified by the Government to  prevent  the concentration  of the frequencies in the hands of  the  rich few who can information to suit their interests and thus  in fact  to  control and manipulate public  opinion  in  effect smothering the right to freedom of speech and expression and freedom  of  information of others.  The claim  to  monopoly made on this ground may, however, lose all its raison d’etre if either any section of the society is unreasonably  denied an access to broadcasting or the Governmental agency  claims exclusive right to prepare and relay programmes.  The ground is  further  not  available when those  claiming  an  access either  do  not  make a demand on  the  limited  frequencies

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 30 of 109  

controlled by the Government or claim the frequency which is not  utilised  and  is  available  for  transmission.    The Government sometimes claims monopoly also on the ground that having  regard to all pervasive presence and impact  of  the electronic  media,  it  may be  utilised  for  purposes  not permitted by law and the damage done by private broadcasters may  be irreparable.  There is much to be said in favour  of this  view  and it is for this reason  that  the  regulatory provisions including those for granting licences to  private broadcasting  where  it is permitted, are enacted.   On  the other  hand, if the Government is vested with  an  unbridled discretion to grant or refuse to grant the license or access to the media, the reason for creating monopoly will lose its validity.   For  then  it is the government  which  will  be enabled  to effectively suppress the freedom of  speech  and expression  instead  of  protecting  it  and  utilising  the licensing  power strictly for the purposes for which  it  is conferred.   It  is  for this reason that  in  most  of  the democratic countries an independent autonomous  broadcasting authority is created to control all aspects of the operation of the electronic media.  Such authority is represen- 150 tative  of  all  sections of the society and  is  free  from control of the political and administrative executive of the State. 49.  In  this country, unlike in the United States and  some European   countries,   there  has  been   a   monopoly   of broadcasting/telecasting  in  the  Government.   The  Indian Telegraph   Act,  1885  [hereinafter  referred  to  as   the "Telegraph  Act"] creates this monopoly and vests the  power of regulating and licensing broadcasting in the  Government. Further,  the  Cinematograph Act, 1952 and  the  Rules  made thereunder  empower  the  Government  to  pre-censor  films. However, the power given to the Government to license and to pre-censor under the respective legislations has to be  read in  the context of Article 19 [2] of the Constitution  which sets the parameters of reasonable restrictions which can  be placed  on  the right to freedom of speech  and  expression. Needless to emphasise that the power to pre-censor films and to  grant  licences  for access to telecasting,  has  to  be exercised  in conformity with the provisions of  Article  19 [2].   It  is in this context that we have  to  examine  the provisions  of  Section 4 [1] of the Telegraph Act  and  the action  of  the MIB/DD in refusing access  to  telecast  the cricket matches in the present case. 50.  The relevant Section 4 of the Telegraph Act  reads   as follows:               "4.(1)  Within  India the  Central  Government               shall   have   the  exclusive   privilege   of               establishing,  maintaining and  working  tele-               graphs:               Provided that the Central Government may grant               a   licence,   on  such  conditions   and   in               consideration  of such payments as  it  thinks               fit,  to any person to establish, maintain  or               work a telegraph within any part of India               Provided  further that the Central  Government               may,   by  rules  made  under  this  Act   and               published  in  the Official  Gazette,  permit,               subject to such restrictions and conditions as               it thinks fit, the establishment,  maintenance               and working -               (a)   of  wireless telegraphs on ships  within               India  territorial  waters  and  on   aircraft               within  or above India or  Indian  territorial

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 31 of 109  

             waters and               (b)   of   telegraphs  other   than   wireless               telegraph within any part of India.               (2)   The  Central  Government  may,  by   no-               tification  in the Official Gazette,  delegate               to  the telegraph authority all or any of  its               powers wider the first proviso to  sub-section               (1).               The exercise by the telegraph authority of any               power  so delegated shall be subject  to  such               restrictions   and  conditions   the   Central               Government may, by the notification, think fit               to impose."               51.       Section  3 (1) of  the  Act  defines               ’telegraph’ as under:               "3.  (1)  "telegraph"  means  any   appliance,               instrument,  material  or  apparatus  used  or               capable  of use for transmission or  reception               of signs, signals, writing, images and  sounds               or intelligence of any nature by wire,  visual               or  other  electromagnetic  emissions,   Radio               waves  Hertzian waves, galvanic,  electric  or               magnetic means.               Explanation.-   "Radio  waves"  or   "Hertzian               waves"   means   electromagnetic   waves    of               frequencies  lower than 3,000 giga-cycles  per               second propagated in               151               space without artificial guide." 52. It Is clear from a reading of the provisions of Sections 4 [1] and 3 [1] together that the Central Government has the exclusive privilege of establishing, maintaining and working appliances,  instruments,  material  or  apparatus  used  or capable  of  use  for transmission or  reception  of  signs, signals, images and sounds or intelligence of any nature  by wire, visual or other electromagnetic emissions, Radio wayes or  Hertzian  waves, galvanic, electric or  magnetic  means. Since in the present case the controversy centres round  the use  of  airwaves  or hertzian waves  [hereinafter  will  be called  as  "electro-magnetic waves"], as is made  clear  by Explanation to section 3(1), the Central Government can have monopoly  over the use of the electromagnetic waves only  of frequencies lower than 3000 giga-cycles per second which are propagated  in space with or without artificial  guide.   In other words, if the electromagnetic waves of frequencies  of 3000 or more giga-cycles per second are propagated in  space with or without artificial guide, or if the electro-magnetic waves  of  frequencies  of less than  3000  give-cycles  per second are propagated with an artificial guide, the  Central Government  cannot claim an exclusive right to use  them  or deny  its user by others.  Since no arguments were  advanced on  this  subject  after the closure of  the  arguments  and pending  the decision, we had directed the parties  to  give their  written  submissions on the point.   The  submissions sent  by  them disclosed a wide conflict  which  would  have necessitated  further oral arguments.  Since we are  of  the view  that the present matter can be decided  without  going into the controversy on the subject, we keep the point  open for  decision in an appropriate case.  We will presume  that in the present case the dispute is with regard to the use of electromagnetic  waves of frequencies lower than 3000  giga- cycles  per  second which are propagated  in  space  without artificial  guide.  53. The first proviso to Section  4  (1) states that the Central Government may grant licence on such conditions and in consideration of such payment as it thinks

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 32 of 109  

fit,  to  any  person,  to establish,  maintain  or  work  a telegraph  within any part of India.  We are  not  concerned here  with  the  permission  to  establish  or  maintain   a telegraph  because  in the present case  the  permission  is sought  only  for operating a telegraph and that too  for  a limited  time and for a limited and specified purpose.   The purpose  again  is  non-commercial.   It  is  to  relay  the specific number of cricket matches.  It is only incidentally that the CAB will earn some revenue by selling its right  to relay the matches organised by it.  The CAB is obviously not a  business or a commercial organisation nor can it be  said that  it  is  organising matches for earning  profits  as  a business proposition.  As will be pointed out later, it is a sporting  Organisation devoted to the cause of  cricket  and has  been  organising cricket matches both of  internal  and international  cricket teams for the benefit of  the  sport, the cricketers, the sportsmen present and prospective and of the viewers of the matches.  The restrictions and conditions that the Central Government is authorised to place under  S. 4  [1]  while permitting non-wireless telegraphing  can,  as stated  earlier,  only be those which are warranted  by  the purposes  mentioned in Article 19 [2] and none else.  It  is not  and  cannot  be  the case of  the  Government  that  by granting  the  permission in question, the  sovereignty  and integrity of India, the security of the State, 152 friendly  relations  with  foreign  States,  public   order, decency or morality or either of them will be in jeopardy or that  the  permission will lead to the  contempt  of  court, defamation or incitement to an offence.  On the other  hand, the  arguments advanced are specious and with them  we  will deal a little later. 54.  It  is then necessary to understand the nature  of  the respondent Organisation, namely, CAB.  It cannot be disputed that  the  BCCI is a non-profit  making  Organisation  which controls  officially  organised game of  cricket  in  India. Similarly, Cricket Association of Bengal (CAB) is also  non- profit   making  Organisation  which   controls   officially organised game of cricket in the State of West Bengal.   The CAB  is one of the Founder Members of BCCI.  Office  bearers and  Members of the Working Committees of both BCCI and  CAB are  all citizens of India.  The primary object of both  the organisations,  amongst  others, is to promote the  game  of cricket,  to  foster  the spirit of  sportsmanship  and  the ideals of cricket, and to impart education through the media of cricket, and for achieving the said objects, to  organise and stage tournaments and matches either with the members of International Cricket Council (ICC) or other  organisations. According   to  CAB,  BCCI  is  perhaps  the  only   sports- organisation  in  India which cams foreign exchange  and  is neither  controlled by any Governmental agency nor  receives any financial assistance or grants, of whatsoever nature. 55.  It  cannot  be  disputed further that  to  arrange  any international cricket tournament or series. it is  necessary and  a  condition-precedent,  to pay  to  the  participating member  countries or teams, a minimum guaranteed  amount  in foreign   exchange  and  to  bear  expenses   incurred   for travelling,  boarding, lodging and other daily expenses  for the participating cricketeers and the concerned accompanying visiting  officials.  A huge amount of expenses has also  to be  incurred for organising the matches.  In addition,  both BCCI  and  CAB annually incur large amount of  expenses  for giving subsidies and grants to its members to maintain,  de- velop  and  upgrade the infrastructure, to coach  and  train players and umpires, and to pay to them when the series  and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 33 of 109  

matches are played. 56.Against this background, we may now examine the questions of  law raised by the parties.  The contention of  the  Min- istry of Information and Broadcasting (MIB) is that there is a difference between the implications of the right conferred under  Article 19 [1] (a) upon [i] the broadcaster i.e.  the person operating the media, [ii] the person desiring  access to the media to project his views including the organiser of an  event,  [iii]  the  viewer and  [iv]  a  person  seeking uplinking of frequencies so as to telecast signals generated in  India  to other countries.  The contention of  CAB  that denial  of  a  license to telecast through a  media  of  its choice,   based  [according  to  NM]  upon  the   commercial interests, infringes viewers’ right under Article 19 [1] (a) is  untenable.  It is further contended that the  commercial interests  of the organizer are not protected by Article  19 [1]  (a).   However,  the  contention  of  the  CAB  results indirectly in such protection being sought by resort to  the following steps of reasoning : [a] the, Board has a right to commercially  exploit  the  event to the  maximum,  [b]  the viewer has a right to access to the event through  153 the  television.  Hence the Board has the right to  telecast through an appropriate channel and also the right to insist, that a private agency including a foreign agency, should  be allowed  all  the  sanctions  and  permissions  as  may   be necessary therefor. 57.According  to NUB the aforesaid contention  is  untenable because  even if it is assumed that entertainment is a  part of free speech, the analogy of the right of the press  under Article 19 [1] (a) vis-a-vis the right under Article 19  [1] (g), cannot be extended to the right of sports associations. The  basic premise underlying the recognition of the  rights of  the press under Article 19 [1] (a) is that the  economic strength is vitally necessary to ensure independence of  the press, and thus even the ’business’ elements of a  newspaper have  ’to some extent a ’free speech’ protection.  In  other words the commercial element of the press exists to subserve the basic object of the press, namely, free dissemination of news  and views which enjoys the protection of free  speech. However,  free  speech  element in  telecast  of  sports  is incidental.  According to the MIB, the primary object of the telecast  by  the CAB is to raise funds and  hence  the  ac- tivities  are  essentially  of trade.   The  fact  that  the profits  are deployed for promotion of sports is  immaterial for the purpose. 58.  It is further urged that a broadcaster does not have  a right  as such to access to the airwaves without  a  license either  for the purposes of telecast or for the purposes  of uplinking.  Secondly, there is no general right to a license to  use airwaves which being a scarce resource, have  to  be used  in a manner that the interests of the  largest  number are  best  served.  The paramount interest is  that  of  the viewers.   The   grant  of a license  does  not  confer  any special right inasmuch as the refusal of a license does  not result in the denial of a right to free speech.  Lastly, the nature  of the electronic media is such that it  necessarily involves  the  marshaling of the resources for  the  largest public good.  The state monopoly created as a device, to use the  resource is not per se violative of the right  of  free speech as long as the paramount interests of the viewers are subserved  and  access  to  the media  is  governed  by  the fairness  doctrine.  According to the MIB, the width of  the rights under Article 19 [1] (a) has never been considered to be  wider than that conferred by the First Amendment to  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 34 of 109  

U.S.  Constitution.  It is also urged that the licensing  of frequencies and consequent regulation of  telecast/broadcast would not be a matter covered by Article 19 [2].   The-right to  telecast/broadcast  has  certain  inherent   limitations imposed   by  nature,  whereas  Article  19(2)  applies   to restrictions imposed by the State.  The object of  licensing is not to cast restrictions on the expression of ideas,  but to  regulate and Marshall scarce resources to  ensure  their optimum  enjoyment  by  all  including  those  who  are  not affluent enough to dominate the media. 59.It  is next urged that the rights of an organiser to  use airwaves  as a medium to telecast and thereby propagate  his views,  are distinct from his right to commercially  exploit the event.  Although it is conceded that an organiser cannot be denied access on impermissible grounds, it is urged  that he  cannot  further claim a right to use an  agency  of  his choice as a part of his right of free speech.  In any  event no  person can claim to exercise his right under Article  19 [1]  (a)  in  a manner which makes it a device  for  a  non- citizen                             154 to  assert  rights  which are denied  by  the  Constitution. According to MIB, it is the case of the BCCI that to promote its  commercial interest, it is entitled to demand that  the Government grants all the necessary licenses and permissions to  any foreign agency of its choice and a refusal to do  so would violate Article 19 [1] (a).  According to MIB, this is an indirect method to seek protection of Article 19 [1]  (a) to the non-citizens. 60.  It  is  then contended that a free speech  right  of  a viewer  has been recognised as that having a  paramount  im- portance  by the US Supreme Court and this view is  all  the more  significant in a country like ours.   While  accepting that  the electronic media is undoubtedly the most  powerful media  of  communication both from the  perspective  of  its reach  as well as its impact, transcending all barriers  in- cluding that of illiteracy, it is contended that it is  very cost-intensive.   Unless,  therefore,  the  rights  of   the viewers are given primacy, it will in practice result in the affluent having the sole right to air their views completely eroding  the right of the viewers.  The right of viewer  can only be safeguarded by the regulatory agency by  controlling the  frequencies of broadcast as it is otherwise  impossible for  viewers to exercise their right to free speech qua  the electronic media in any meaningful way. 61.Lastly,  dealing with the contention raised on behalf  of the  CAB  and BCCI that the monopoly conferred  upon  DD  is violative  of  Article 19 [1] (a), while  objecting  to  the contention  on the ground that the issue does not  arise  in the present proceedings and is not raised in the  pleadings, it  is  submitted  on  behalf  of  NM  that  the   principal contentions  of the CAB/BCCI are that they are  entitled  to market their right to telecast event at the highest possible value  it may command and if the DD is unwilling to  pay  as much  as the highest bidder, the CAB/BCCI has the right  not only to market the event but to demand as of right, all  the necessary licences and permissions for the agency  including foreign agency which has purchased its rights.  According to MIB  these contentions do not raise any free-speech  issues, but impinge purely on the right to trade.  As far as Article 19  [1]  (g) is concerned, the validity of the  monopoly  in favour  of the Government is beyond question.  Secondly,  in the  present  case, the DD did not refuse  to  telecast  the event  per se.  It is then submitted that the  CAB/BCCI  are not  telecasters.   They arc only organisers of  the  events

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 35 of 109  

sought to be telecast and when the agency like DD which  has access  to the largest number of viewers agrees to  telecast the events, their right as well as the viewers’ right  under Article  19  [1]  (a) is satisfied.   No  organiser,  it  is contended,  can insist that his event be telecast  on  terms dictated   by  him  and  refusal  to  agree  to   his   term constitutes,  breach of his right under Article 19 [1]  (a). If  it  is accepted that the Government has  not  only  the, right   but  the  duty  to  regulate  the  distribution   of frequencies, then the only way it can be done is by creating a monopoly.  A mere creation of the monopoly-agency to tele- cast  does not per se violate Article 19 [1] (a) as long  as the  access is not denied to the media either absolutely  or by  imposition of terms which are unreasonable.  Article  19 [1] (a) proscribes monopoly in ideas and as long as this  is not  done,  the mere -fact that the access to the  media  is through  the  Government-controlled agency, is  not  per  se violative of Article 19 [1] (a). 155 It is further urged that no material has been placed  before the Court to show that the functioning of the DD is such  as to  deny generally, an access to the media and  the  control exercised by the Government is in substance over the content on the grounds other than those specified in Article 19  [2] or  a  general  permission to all who  seek  frequencies  to telecast,  would  better subserve the  principle  underlying Article  19  [1] (a) in the socioeconomic scenario  of  this country  and will not result in passing the control  of  the media  from  the  Government to  private  agencies  affluent enough to buy access. 62. As against these contentions of the MIB, it is urged  on behalf of CAB and BCCI as follows: The  right to organise a sports event inheres in the  entity to  which the right belongs and that entity in this case  is the  BCCI and its members which include the CAB.  The  right to produce event includes the right to deal with such  event in  all  manner  and mode which the  entity  chooses.   This includes the right to telecast or not to telecast the event, and  by or through whom, and on what terms  and  conditions. No other entity, not even a department of the Government can coerce  or  influence  this decision or  obstruct  the  same except on reasonable grounds mentioned under Article 19  [2] of  the  Constitution.  In the event the entity  chooses  to televise  its  own  events, the  terms  and  conditions  for televising  such events are to be negotiated by it with  any party  with whom it wishes to negotiate.  There is  no  law, bye-law, rule or  regulation to regulate the conduct  of the BCCI  or CAB in this behalf. In  the event. BCCI chooses  to enter  into  an agreement with an  agency  having  necessary expertise   and  infrastructure  to  produce  signals,   and transmit and televise the event of the quality that BCCI/CAB desires, the terms and conditions to be negotiated with such an  entity,  are the exclusive privilege  of  BCCI/CAB.   No department of the Government and least of all, the MIB or DD is  concerned  with the same and can deny the  BCCI  or  CAB same, the benefit of such right or claim, much less can  the MIB or DD can insist that such negotiation and  finalisation only be done with it or not otherwise. 63.  In  the event the BCCI or CAB wishes to have the  event televised  outside  India,  What is  required  is  that  the required cameras and equipments in the field send signals to the  earth station which in turn transmits the same  to  the appointed  satellite.   From the satellite, the  picture  is beamed back which can be viewed live by any person who has a TV  set  and has appropriate access  to  receive  footprints

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 36 of 109  

within the beaming zone.  In such case DD or the Ministry of Communications  is not to provide any assistance  either  in the  form of equipments or personnel or for that matter,  in granting uplinking facility for televising the event. 64.  It is further that the right to disseminate information is a part of the fundamental right to freedom of expression. BCCI/CAB have the fundamental right to televise the game  of cricket  organised and conducted by them for the benefit  of public at large and in particular citizens of India who  are either interested in cricket or desire to be educated and/or entertained.   The  said  right  is  subject  only  to   the regulations and restrictions as provided by Article 19(2) of the Constitution. 65. 65. At no other stage either the DD or 156 MIB  stated  that reasonable restrictions as  enumerated  in Article 19 [2] arc being sought to be imposed apart from the fact that such plea could not have been taken by them in the case of telecasting sports events like cricket matches.   It is urged that the sole ground on which DD/MIB is seeking  to obstruct  and/or refuse the said fundamental right  is  that the DD has the exclusive privilege and monopoly to broadcast such  an  event  and  that unless  the  event  is  produced, transmitted   and  telecast  either  by  DD  itself  or   in collaboration  with it on its own terms and  conditions  and after  taking signal from it on the terms and conditions  it may  impose, the event cannot be permitted to  be  produced, transmitted and telecast at all by anybody else. 66.  It  is also urged that there is no exclusive  privilege or monopoly in relation to production, transmission or tele- casting and such an exclusivity or monopoly, if claimed , is violative of Article 19 [1] (a). 67   The BCCI and CAB have a right under Article 19 [1]  (a) to  produce,  transmit, telecast and broadcast  their  event directly  or  through  its agent.  The  right  to  circulate information is a part of the right guaranteed under  Article 19 [1] (a).  Even otherwise, the viewers and persons  inter- ested in sports by way of education, information, record and entertainment  have a right to such  information,  knowledge and  entertainment.  The content of the right under  Article 19  [1]  (a) reaches out to protect the information  of  the viewers also.  In the present case, there is a right of  the viewers  and also the right of the producer to telecast  the event  and  in  view  of  these  two  rights,  there  is  an obligation  on  the  part  of  the  Department  of  Telecom- munication to allow the telecasting of the event. 68.  It is then contended that the grant of a licence  under section  4 of the Act is a regulatory measure and  does  not entitle  MIB either to deny a license to BCCI/ CAB  for  the purposes of production, transmission and telecasting  sports events  or to impose any condition unrelated to  Article  19 [2].  If such denial or imposition is made, it would  amount to a prohibition.  Hence the NM is obliged and dutybound  in law to grant licence against payment of fees related to  and calculated  on the basis of user of time only, as  has  been standardized and not otherwise.  Any other method applied by MIB/DD would be violative of Article 19 [1] (a).  The  grant of  license  under  section  4 of the Act  has  thus  to  be harmoniously  read  with  the right  of  the  citizen  under Article 19 [1] (a).  The Constitution does not visualize any monopoly  in Article 19 [1] (a).  Hence DD cannot claim  the same  nor  can  the commercial interest of DD  or  claim  of exclusivity  by it of generation of signals be a ground  for declining permission under section 4 of the Act.  Hence  the following restrictions sought to be imposed fall outside the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 37 of 109  

ambit  of  Article  19(2)  and  are  unconstitutional.   The restrictions are:               (a)   That  unless BCCI or CAB  televises  the               matches  in collaboration with DD,  a  license               shall not be granted.               (b)   The  DD  alone will be the  host  broad-               caster  of  the signals and  BCCI/CAB  or  its               agency must take the signal from DD alone and               (c)   Unless the BCCI or CAB accepts               157               the  terms and conditions imposed by  DD,  the               production  of  signal  and  transmission  and               telecast thereof shall not be permitted. 69.  It  is further contended that there is no  monopoly  in relation  to  what viewer must today view and  the  American decisions  relied upon on behalf of MIB have no  bearing  on the  present state of affairs.  Satellite can beam  directly on  to television sets through dish antenna, all  programmes whose  footprints are receivable in the  country.   Further, any one can record a programme in India and then telecast it by sending the cassette out as is being done in the case  of several  private  TV channels.  Various foreign  news  orga- nizations such as the BBC and the CNN record directly Indian events and then transmit their own signals after a while  to be telecast by their organizations. 70.  Further,  the  non-availability  of channel  is  of  no consequence   in   the   present   days   of   technological development.  Any person intending to telecast/broadcast  an event can do so directly even without routing signal through the  channels of DD or MIB.  What is required to  ensure  is that  the  secured  channel  are  not  interfered  with   or overlapped.   On account of the availability of  innumerable satellites  in the Geo-Stationary Orbit of  the  Hemisphere, the  signals  can directly be uplinked through  any  of  the available transponders of satellite whose footprints can  be received  back through appropriate electronic device.  As  a matter  of  fact, beaming zone of only 3  satellites  parked 3000  Kms.  above  the surface of the earth  can  cover  the entire   Hemisphere.    Moreover,   due   to   technological developments, frequency is becoming thinner and thinner  and as  a  result,  availability of  frequencies  has  increased enormously and at present there are millions of  frequencies available.   In order to ensure that none of the  footprints of any satellite overlaps the footprint of other  satellite, each and every satellite is parked at a different degree and angle.   Hence,  there  is no resource  crunch  or  in-built restriction on the availability of electronic media, as con- tended  by MIB.  In this connection it is also  pointed  out that there is a difference in the right spelt out by Article 19  [1]  (a) of our Constitution and that spelt out  by  the First Amendment of the American Constitution. 71.      It is also contended that in no other  country  the right to televise or broadcast is in the exclusive domain of any  particular  body.  In this connection, a  reference  is made to various instances in other countries where the  host broadcaster has been other than the domestic network,  which instances are not controverted.  It is also urged that there is  no policy of the Government of India as urged on  behalf of  the  MIB that telecasting of sporting  events  would  be within the exclusive domain and purview of DD/MIB who  alone would  market their rights to other authorities in whole  or in  part.   It  is pointed out that  the  extract  from  the minutes of the meeting of the Committee of Secretaries  held on  12th  November,  1993 relied upon by  the  MIB  for  the purpose is not a proof of such policy.  The said minutes are

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 38 of 109  

’executive  decision’  of a few Secretaries of  the  various departments of the Government. 72.It is also urged that even public interest or interest of general  public  cannot be a ground for refusal or  for  the imposition  of restrictions or for claiming  exclusivity  in any manner whatsoever. 158 Such restriction, if imposed will be violative of Article 19 [1] (a).  To suggest that power to grant a license shall not be  exercised under any circumstances because of the  policy of  the  Government,  is arbitrary  inasmuch  as  the  power conferred is not being used for the purpose for which it has been conferred. 73.It  is  then contended that both BCCI and  CAB  are  non- profit  making  organizations and their sole  object  is  to promote  the  game of cricket in this country and  for  that purpose  not  only proper and adequate  infrastructures  are required to be erected, built and maintained, but also  huge expenses  have  to  be incurred to improve  the  game  which includes,  amongst others, grant of subsidies and grants  to the  Member  Associations,  upgradation  of  infrastructure, training  of cricketeers from school level, payments to  the cricketeers,   insurance  and  benevolent  funds   for   the cricketeers,  training  of  umpires,  payments  of   foreign participants, including guarantee money etc.  The quantum of amount  to  be spent for all these  purposes  has  increased during the course of time.  These expenses are met from  the amounts earned by the BCCI and CAB since they have no  other continuous  source of income.  The earnings of BCCI and  CAB are  basically from arranging various tournaments,  instadia advertisements  and licence fee for permitting telecast  and censorship.   At  least  70 per cent of  the  income  earned through  the advertisements and generated by the TV  network while  telecasting of the matches, is paid to the  organizer apart from the minimum guaranteed money as is apparent  from the  various agreements entered by and between  BCCI/CAB  as well  as  by  DD with. other networks.   The  DD  in  effect desires  to  snatch away the right of telecast for  its  own commercial  interest through advertisement, and at the  same time also demand money from the organizers as and by way  of production fee. 74.Merely  because  an organization may cam profit  from  an activity  whose  character is  predominantly  covered  under Article  19 [1] (a), it would not convert the activity  into one  involving Article 19 [1] (g).  The test of  predominant character of the activity has to be applied.  It has also to be ascertained as to who is the person who is utilizing  the activity.  If a businessman were to put in an  advertisement for  simpliciter  commercial  activity, it  may  render  the activity, the one, covered by Article 19 [1] (g).  But  even newspapers or a film telecast or sports event telecast  will be  protected by Article 19 [1] (a) and will not  become  an activity  under Article 19 [1] (g) merely because  it  earns money from advertisements in the process.  Similarly, if the cricket  match  is  telecast and profit  is  earned  by  the licensing   of   telecasting   right   and   receipts   from advertisements,   it  will  be  an  essential  element   for utilization and fulfillment of its object.  The said  object cannot be achieved without such revenue. 75.Rebutting the argument that the Organisation of sports is an industry and, therefore, monopoly under Article 19 [6] is permissible,  it  is pointed out that even  if,  in  matters relating  to business and profession, the State  can  create monopoly  under  Article 19 [6], it can still  not  infringe Article  19  [1] (a).  While the State  may  monopolise  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 39 of 109  

textile  industry,  it cannot prohibit  the  publication  of books and articles on textiles. 76.It  is also contended that the exercise of right  claimed in the present case is 159 by  BCCI/CAB  and  its office bearers who  are  citizens  of India.   Merely because foreign equipment and technical  and personnel  are  used as collaborators to exercise  the  said right  more effectively, it does not dilute the  content  of Article  19 [1] (a) nor does it become an exercise of  right by  a  non-citizens.  In this connection, it  is  emphasised that the DD is also using Worldtel, a foreign agency.   Most of the newspapers in India are printed on machines  imported from  abroad.  A newspaper may also have a foreigner as  its manager.  However, that does not take away the right of  the newspaper under Article 19 [1] (a).  They are only instances of  technical collaboration.  Apart from it,  every  citizen has a right to information as the same cannot be taken  away on grounds urged by the NEB. 77.It  will  be apparent from the  contentions  advanced  on behalf  of  MIB  that their main thrust is  that  the  right claimed  by  the  BCCI/CAB is not the right  of  freedom  of speech  under Article 19 [1] (a), but a commercial right  or the right to trade under Article 19 [1] (g).  The contention is based mainly on two grounds viz., there is no free speech element in the telecast of sports and secondly, the  primary object  of the BCCI/CAB in seeking to telecast  the  cricket matches  is not to educate and entertain the viewer  but  to make money. 78.It  can hardly be denied that sport is an  expression  of self  In  an athletic Nor individual event,  the  individual expresses  himself through his individual feat.  In  a  team event such as cricket, football, hockey etc., there is  both individual  and collective expression.  It may be true  that what is protected by Article 19 [1] (a) is an expression  of thought and feeling and not of the physical or  intellectual prowess or skill.  It is also true that a person desiring to telecast sports events when he is not himself a  participant in  the  game, does not seek to exercise his right  of  self expression.   However,  the right to freedom of  speech  and expression also includes the right to educate, to inform and to entertain and also the right to be educated, informed and entertained.  The former is the right of the telecaster  and the  latter  that  of the viewers.  The  right  to  telecast sporting event will therefore also include the right to edu- cate  and inform the present and the  prospective  sportsmen interested  in  the particular game and also to  inform  and entertain the lovers of the game.  Hence, when a  telecaster desires to telecast a sporting event, it is incorrect to say that the free speech element is absent from his right.   The degree of the element will depend upon the character of  the telecaster  who claims the right.  An organiser such as  the BCCI  or  CAB  in the present case  which  are  indisputably devoted  to the promotion of the game of cricket, cannot  be place in the same scale as the business organisations  whose only  intention is to make as large a profit as can be  made by telecasting the game.  Whereas it can be said that  there is  hardly any free speech element in the right to  telecast when  it is asserted by the latter, it will be a warped  and cussed  view to take when the former claim the  same  right, and  contend  that  in claiming the right  to  telecast  the cricket  matches organised by them, they are  asserting  the right   to   make  business  out  of   it.    The   sporting organisations  such  as BCCI/ CAB which  are  interested  in promoting  the  sport or sports are under an  obligation  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 40 of 109  

organise  the sports events and can legitimately be  accused of failing in their 160 duty  to do so.  The promotion of Sports also  includes  its popularization  through  all  legitimate  means.   For  this purpose,  they are duty bound to select the best  means  and methods  to  reach  the  maximum  number  of  listeners  and viewers.   Since  at  present, radio and  TV  are  the  most efficacious    methods,   thanks   to   the    technological development, the sports organisations like BCCI/CAB will  be neglecting their duty in not exploring the said media and in not employing the best means available to them to popularise the   game.    That  while  pursuing  their   objective   of popularising  the  sports by selecting  the  best  available means of doing so, they incidentally earn some revenue, will not convert either them into commercial organisations or the right  claimed  by them to explore the said  means,  into  a commercial right or interest.  It must further be remembered that sporting organisations such as BCCI/CAB in the  present case, have not been established only to organise the  sports events  or to broadcast or telecast them.  The  organisation of sporting events is only a part of their various  objects, as  pointed  out  earlier and even when  they  organise  the events,  they  are primarily to educate  the  sportsmen,  to promote  and  popularise the sports and also to  inform  and entertain  the  viewers.  The Organisation  of  such  events involves  huge  costs.   Whatever  surplus  is  left   after defraying all the expenses, is ploughed back by them in  the Organisation  itself It will be taking a  deliberately  dis- torted  view of the right claimed by such  organisations  to telecast  the  sporting event to call it an assertion  of  a commercial  right.  Yet the MIB has chosen to  advance  such contention which can only be described as most  unfortunate. It  is needless to state that we are, in the  circumstances, unable  to  accept  the ill-advised argument.   It  does  no credit  to the Ministry or to the Government as a  whole  to denigrate  the  sporting organisations such as  BCCI/CAB  by placing  them on par with business organisations  sponsoring sporting events for profit and the access claimed by them to telecasting as assertion of commercial interest. 79.The   second   contention  of  NM  is  based   upon   the propositions laid down by the US Supreme Court, viz.,  there are   inherent   limitations  imposed  on   the   right   to telecast/broadcast  as there is scarcity of resources,  i.e. of  frequencies, and therefore the need to use them  in  the interest  of the largest number.  There is also a  pervasive presence  of electronic media such as TV. It has  a  greater impact on the minds of the people of all ages and strata  of the  society necessitating the prerequisite of licensing  of the  programmes.  It is also contended on that account  that the  licensing of frequencies and consequent  regulation  of telecasting/broadcasting  would not be a matter governed  by Article 19 [2].  Whereas Article 19 [2] applies to  restric- tions imposed by the State, the inherent limitations on  the right to telecast/broadcast are imposed by nature. 80.In the first instance, it must be remembered that all the decisions of the US Supreme Court relied upon in support  of this   contention,   are  on  the  right  of   the   private broadcasters to establish their own broadcasting stations by claiming  a share in or access to the airwaves  or  frequen- cies.  In the United States, there is no Central Government- owned  or controlled broadcasting centre.  There is  only  a Federal  Commission to regulate broadcasting stations  which are  all  owned  by  private  broadcasters.   Secondly,  the American Con-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 41 of 109  

161 stitution does not explicitly state the restrictions on  the right   of   freedom  of  speech  and  expression   as   our Constitution  does.  Hence, the decisions in  question  have done no more than impliedly reading such restrictions.   The decisions  of  the  U.S. Supreme Court,  therefore,  in  the context of the right claimed by the private broadcasters are irrelevant  for our present purpose.  In the  present  case, what  is  claimed  is a right to an  access  to  telecasting specific  events for a limited duration and  during  limited hours  of  the  day.   There is  no  demand  for  owning  or controlling  a frequency.  Secondly, unlike in the cases  in the  US which came for consideration before the  US  Supreme Court,  the right to share in the frequency is  not  claimed without  a license.  Thirdly, the right to use  a  frequency for  a  limited  duration  is  not  claimed  by  a  business Organisation  to  make  profit and lastly  and  this  is  an important aspect of the present case, to which no reply  has been  given by the MIB, there is no claim to  any  frequency owned and controlled by the Government.  What is claimed  is a  permission to uplink the signal created by the  organiser of the events to a foreign satellite. 81.  There  is no doubt that since the  airwaves/frequencies are a public property and     are also limited, they have to be used in the best interest of the society and this can  be done  either by a central authority by establishing its  own broadcasting network or regulating the grant of licences  to other  agencies,  including the private agencies.   What  is further,  the  electronic media is the most  powerful  media both  because  of its audio-visual impact,  and  its  widest reach  covering the section of the society where  the  print media does not reach.  The right to use the airwaves and the content  of the programmes therefore, needs  regulation  for balancing it and as well as to prevent monopoly of  informa- tion and views relayed, which is a potential danger  flowing from the concentration of the right to broadcast/telecast in the  hands  either  of a central agency or  of  few  private affluent  broadcasters.   That  is why the need  to  have  a central agency representative of all sections of the society free  from control both of the Government and  the  dominant influential sections of the society.  This is not  disputed. But  to contend that on that account the restrictions to  be imposed  on the right under Article 19 [1] (a) should be  in addition  to  those  permissible under Article  19  [2]  and dictated  by  the  use  of  public  resources  in  the  best interests  of the society at large, is to  misconceive  both the content of the freedom of speech and expression and  the problems posed by the element of public property in, and the alleged scarcity of, the frequencies as well as by the wider reach  of the media.  If the right to freedom of speech  and expression includes the right to disseminate information  to as  wide  a section of the population as  is  possible,  the access which enables the right to be so exercised is also an integral  part  of  the  said right.   The  wider  range  of circulation  of  information or its  greater  impact  cannot restrict  the  content of the right nor can it  justify  its denial.   The virtues of the electronic media cannot  become its  enemies.   It  may warrant a  greater  regulation  over licensing  and control and vigilance on the content  of  the programme  telecast.   However,  this control  can  only  be exercised  within  the framework of Article 19 [2]  and  the dictates of public interests.  To plead for other grounds is to  plead  for  unconstitutional measures.   It  is  further difficult to appreciate such contention on the 162

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 42 of 109  

part  of  the Government in this country when  they  have  a complete control over the frequencies and the content of the programme  to be telecast.  They control the sole agency  of telecasting.   They  are also armed with the  provisions  of Article  19 [2] and the powers of pre-censorship  under  the Cinematograph  Act and Rules.  The only limitations  on  the said  right is, therefore, the limitation of resources  and, the need to use them for the benefit of all.  When, however, there  are  surplus or unlimited resources  and  the  public interests   so  demand  or  in  any  case  do  not   prevent telecasting,   the  validity  of  the  argument   based   on limitation of resources disappears.  It is true that to  own a  frequency  for the purposes of broadcasting is  a  costly affair  and  even  when  there  are  surplus  or   unlimited frequencies, only the affluent few will own them and will be in  a position to use it to subserve their own  interest  by manipulating  news and views.  That also poses a  danger  to the  freedom  of speech and expression of the  have-nots  by denying  them  the truthful information on all sides  of  an issue  which  is so necessary to form a sound  view  on  any subject,  That  is  why the doctrine of  fairness  which  is evolved   in  the  U.S.  in  the  context  of  the   private broadcasters licensed to share the limited frequencies  with the central agency like the FCC to regulate the programming. But  this  phenomenon occurs even in the case of  the  print media  of all the countries.  Hence the body like the  Press Council  of  India which is empowered  to  enforce,  however imperfectly,  the right to reply.  The print  media  further enjoys as in our country, freedom from pre-censorship unlike the electronic media. 82.As  -stated earlier, we are not concerned in the  present case  with the right of the private broadcasters,  but  only with  the limited right for telecasting  particular  cricket matches for particular hours of the day and for a particular period.   It  is  not  suggested  that  the  said  right  is objectionable on any of the grounds mentioned in Article  19 [2]  or is against the proper use of the  public  resources. The  only objection taken against the refusal to  grant  the said right is that of the limited resources.  That objection is completely misplaced in the present case since the  claim is not made on any of the frequencies owned, controlled  and utilised by the D.D. The right claimed is for uplinking  the signal  generated  by the BCCI/CAB to a satellite  owned  by another agency.  The objection, therefore, is devoid of  any merit  and untenable in law.  It also displays a  deliberate obdurate approach. 83.The  third  contention advanced on behalf of the  MIB  is only an extended aspect of the fist contention.  It is based on  the same distorted interpretation of the right  claimed. It  proceeds on the footing that the BCCI/CAB is claiming  a commercial  right  to exploit the sporting event  when  they assert that they have a right to telecast the event  through an  agency of their choice.  It is even contended on  behalf of  the MIB that this amounts to a device for a  non-citizen to  assert  rights under Article 19 [1] .(a) which  are  not available to him. 84.It  is  unnecessary to repeat what we have  stated  while dealing  with the first contention earlier, with  regard  to the character of BCCI/CAB, the nature of and the purpose for which  the right to access to telecast is claimed  by  them. As  pointed  out, it is not possible to hold that  what  the BCCI/CAB  are in the present cast claiming is  a  commercial right to exploit the 163 event  unless one takes a perverse view of the matter.   The

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 43 of 109  

extent of perversity is apparent from the contention  raised by  them that to engage a foreign agency for the purpose  is to  make it a device for a noncitizen to assert  his  rights under  Article  19 [1] (a).  It cannot be  denied  that  the right  to freedom of speech and expression under Article  19 [1] (a) includes the right to disseminate information by the best  possible method through an agency of one’s  choice  so long   as   the  engagement  of  such  agency  is   not   in contravention of Article 19 [2] of the Constitution and does not   amount   to  improper  or  unwarranted  use   of   the frequencies.   Hence  the choice of BCCI/ CAB of  a  foreign agency  to  telecast  the matches, cannot  be  objected  to. There  is  no  suggestion  in  the  present  case  that  the engagement  of  the  foreign  agency  by  the  BCCI/CAB   is violative of the provisions of Article 19 [2].  On the other hand,  the case of NUB, as pointed out earlier, is that  the BCCI/CAB  want to engage the foreign agency to maximise  its revenue and hence they are not exercising their right  under Article 19 [1] (a) but their commercial right under  Article 19  [1] (g).  We have pointed out that that argument is  not factually correct and what in fact the BCCI/CAB is asserting is  a right under Article 19 [1] (a).  While  asserting  the said  right, it is incidentally going to earn some  revenue. In  the circumstances, it has the right to choose  the  best method  to earn the maximum revenue possible.  In  fact,  it can  be  accused   of  negligence  and  may   be  attributed improper motives, if it fails to explore the most profitable avenue  of  telecasting  the event, when  in  any  case,  in achieving  the  object  of promoting  and  popularising  the sports, it has to endeavour to telecast the cricket matches. The  record  shows  that  all  applications  were  made  and purported  to  have  been made to the  various  agencies  on behalf  of CAB for the necessary licences  and  permissions. All other Ministries and Departments understood them as such and granted the necessary permissions and licences.   Hence, by granting such permission, the Government was not in  fact granting  permission to the foreign agency to  exercise  its right  under Article 19 [1] (a).  If, further, that was  the only  objection in granting permission, a positive  approach on  the  part  of the NM could have made  it  clear  in  the permission granted that it was being given to CAB.  In fact, when  all other Government Departments had no difficulty  in construing  the application to that effect and granting  the necessary   sanctions/permissions  at  their  end,   it   is difficult  to  understand the position taken by the  MIB  in that behalf.  One wishes that such a contention was not  ad- vanced. 85.The fourth contention is that, as held by the US  Supreme Court,  the  freedom of speech has to be viewed  also  as  a right  of the viewers which has a paramount importance,  and the  said View has significance in a country like ours.   To safeguard  the rights of the viewers in this country, it  is necessary  to regulate and restrict the right to  access  to telecasting.    There  cannot  be  any  dispute  with   this proposition.  We have in fact referred to this right of  the viewers  in another context earlier.  True democracy  cannot exist  unless all citizens have a right to  participate   in the  affairs  of the polity of the country.   The  right  to participate  in  the affairs of the country  is  meaningless unless  the citizens are well informed on all sides  of  the issues, in respect of which they are called upon to  express their   views.    One-sided   information,   disinformation, misinformation and non-information all 164 equally create an uninformed citizenry which makes democracy

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 44 of 109  

a farce when medium of information is monopolised either  by a  partisan central authority or by private  individuals  or oligarchic  organisations.   This is particularly  so  in  a country like ours where about 65 per cent of the  population is  illiterate and hardly 1-1/2 per cent of  the  population has  an  access to the print media which is not  subject  to precensorship.   When,  therefore, the electronic  media  is controlled by one central agency or few private agencies  of the  rich,  there  is a need to have a  central  agency,  as stated  earlier, representing all sections of  the  society. Hence to have a representative central agency to ensure  the viewers’ right to be informed adequately and truthfully is a part  of the right of the viewers under Article 19 [1]  (a). We are, however, unable to appreciate this contention in the present  context  since the viewers’ rights are not  at  all affected  by the BCCI/CAB, by claiming a right  to  telecast the cricket matches, On the other hand, the facts on  record show  that their rights would very much be trampled  if  the cricket matches are not telecast through the D.D., which has the monopoly of the national telecasting network.  Although, there  is no statistical data available [and this is  not  a deficiency  felt  only in this arena], it cannot  be  denied that  a  vast  section  of the people  in  this  country  is interested  in  viewing the cricket matches.   The  game  of cricket  is  by  far the most popular In all  parts  of  the country.   This is evident from the over-flowing  stadia  at the  venues  wherever the matches are played  and  they  are played all over the country.  It will not be an exaggeration to  say that at least one in three persons, if not more,  is interested  in  viewing  the cricket  matches.   Almost  all television sets are switched on to view the matches.   Those who  do not have a T.V. set of their own, crowd around  T.V. sets  of  others  when the matches are on. This  is  not  to mention  the number of transistors and radios which  are  on during  the  match-hours.  In the face  of  these  revealing facts,  it  is  difficult  to  understand  why  the  present contention  with regard to the viewers’ right is  raised  in this  case when the grant of access to BCCI/CAB to  telecast cricket matches was in the interest of the viewers and would have also contributed to promote their rights as well. 86.The  last argument on behalf of the MIB is that since  in the  present  case, the DD has not refused to  telecast  the event, its monopoly to telecast cannot be challenged and  in fact no such contention was raised by the BCCI/CAB.  We  are afraid  that  this  will  not be a  proper  reading  of  the contentions  raised  by  BCCI/CAB in  their  pleadings  both before  the High Court and this Court.  Undisputed facts  on record  show that the DD claimed exclusive right  to  create host broadcasting signal and to telecast it on the terms and conditions stipulated by it or not at all.  MIB even refused to  grant uplinking facilities when the  terrestrial  signal was being created by the CAB with their own apparatus, i.e., the apparatus of the agency which they had engaged and  when the  use  of  any of the frequencies  owned,  controlled  or commanded by DD or the Government, was not involved.   Since BCCI/CAB  were the organisers of the events, they had  every right  to create terrestrial signals of their event  and  to sell  it  to whomsoever they thought best so  long  as  such creation  of  the  signal  and  the  sale  thereof  was  not violative  of any law made under Article 19 [2] and was  not an  abuse  of the frequencies which are a  public  property. Neither DD nor any other agency could im- 165 pose their terms for creating signal or for telecasting them unless it was sought through their frequencies.  When the DD

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 45 of 109  

refused  to telecast cricket matches except on their  terms, the BCCI/CAB turned to another agency, in the present case a foreign  agency,  for creating the  terrestrial  signal  and telecasting  it  through the frequencies belonging  to  that agency.   When the DD refused to telecast the  matches,  the rights of the viewers to view the matches were in  jeopardy. Only  the viewers in this country who could receive  foreign frequencies  on  their TV sets, could have viewed  the  said matches.  Hence it is not correct to say that the DD had not refused  to telecast the events.  To insist  on  telecasting events  only on one’s unreasonable terms and conditions  and not  otherwise when one has the monopoly of telecasting,  is nothing but refusal to telecast the same.  The DD could  not do it except for reasons of non-availability of  frequencies or  for  grounds  available  under  Article  19(2)  of   the Constitution  or for considerations of public  interest  in- volved  in  the use of the frequencies as  public  property. The  fact  that the DD was prepared to telecast  the  events only  on its terms shows that the frequency  was  available. Hence, scarcity of frequencies or public interests cannot be pressed  as  grounds  for refusing to  telecast  or  denying access  to  BCCl/CAB to telecasting.  Nor can the  DD  plead encroachment  on the right of viewers as a ground since  the telecasting of events on the terms of the DD cannot alone be said to safeguard the right of viewers in such a case and in fact it was not so. 87.Coming to the facts of the present case, which have given rise  to the present proceedings, the version of MIB  is  as follows: On  March 15, 1993, the CAB wrote a letter to  the  Director General  of  Doordarshan  that  a  Six-Nation  International Cricket Tournament will be held in November, 1993 as a  part of  its Diamond Jubilee Celebrations and asked DD to send  a detailed offer for any of the two alternatives, namely,  (i) that  DD  would create ’Host Broadcaster  Signal’  and  also undertake live telecast of all the matches in the tournament or  (ii)  any other party may create the  ’Host  Broadcaster Signal’ and DD would only purchase the rights to telecast in India.   CAB in particular emphasised that in  either  case, the  foreign  T.V. rights would be with CAB.  The  CAB  also asked  DD to indicate the royalty amount that would be  paid by  the DD.  On March 18, 1993 the Controller of  Programmes (Sports),  DD, replied to the letter stating  amongst  other things  that  during the meeting and during  the  telephonic conversation, CAB’s President Dalmia had agreed to send them in writing the amount that he expected as rights fee payable to  CAB exclusively for India, without the Star  TV  getting it.   On March 19, 1993, CAB informed DD that they would  be agreeable  to  DD creating the Host Broadcaster  Signal  and also granting DD exclusive right for India without the  Star TV  getting it and the CAB would charge DD US  $800,000  (US Dollars  eight lakh] only] for the same.  The CAB,  however, made it clear that they would reserve the right to  sell/li- cense  the  right world-wide, excluding India and  Star  TV. The CAB also stated that DD would be under an obligation  to provide a picture and commentary subject to payment of  DD’s technical fees.  On March 31, 1993, DD sent its bid as ’Host Broadcaster’  for a sum of Rs.  1 crore stating inter  alia, that  CAB should grant signals to it exclusively  for  India with-                             166 out  the Star TV getting it.  The DD also stated  that  they would  be  in  a position to create  the  ’Host  Broadcaster Signal’ and offer a live telecast of all the matches in  the tournament.   Thereafter,  on May 4, 1993, the DD by  a  fax

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 46 of 109  

message  reminded  the President of CAB about its  offer  of March 31, 1993.  To that CAB replied on May 12, 1993 that as the Committee of CAB had decided to sell/allot worldwide  TV rights to one party only, they would like to know whether DD would  be interested in the deal and, if so, to  send  their offer for worldwide TV rights latest by May 17, 1993, on the following basis, namely, outright purchase of TV rights  and sharing  of  rights  fee.  On May 14, 1993  DD  by  its  fax addressed to CAB stated that it was committed to its earlier bid  of  Rs.  1 crore, namely, exclusive TV right  in  India alone.   The DD also stated that as there was a  speculation that  Pakistan may not participate in the tournament,  which may affect viewership and consequent commercial accruals, DD would have to rethink on the said bid also, in such an even- tuality and requested CAB to reply to the said letter at the earliest. 88.  On  June  14,  1993,  according  to  the  NUB,  without obtaining  the required clearances from the  Government  for telecasting,  the  CAB entered into an  agreement  with  the World  Production  Establishment  (W/PE)  representing   the interests   of   TWI  [Trans   World   International],   for telecasting  all the matches.  The said  agreement  provided for the grant of sole and exclusive right to sell/licence or otherwise  exploit throughout the world ’Exhibition  Rights’ in  the tournament.  CAB shall only retain radio rights  for the territory of India.  The CAB under the agreement was  to receive not less than US $550,000 as guaranteed sum.  If any income  from  the rights fee is received in  excess  of  the guaranteed sum, it was to be retained wholly by WPE until it was  eventually split into 70:30 per cent as per the  agree- ment.   If  the  rights fee/income received  was  less  than guaranteed  sum, WPE was to pay the difference to CAB.   The WPE  was to pay, where possible, television license  fee  in advance of the start of the tournament. 89.  On June 18, 1993, DD sent a fax to CAB stating  therein that from the press reports, it had learnt that CAB had  en- tered into an agreement with TWI for the TV coverage of  the tournament,  and  the  DD had decided not  to  telecast  the matches of the tournament by paying TWI, and that DD was not prepared  to enter into any negotiations with TWI to  obtain the  television rights for the event.  On June 30, 1993,  DD also  informed similarly to International Management  Group, Hong Kong. 90.  On  September 2, 1993, the Department of Youth  Affairs and   Sports,  Ministry  of  Human  Resources   Development, addressed  a  letter  to  the  CAB  informing  it  that  the Government  had  no objection to the proposed visit  of  the Cricket  Teams  of Pakistan, South Africa, Sri  Lanka,  West Indies  and  Zimbabwe,  to India for  participation  in  the tournament.   The Department further stated that no  foreign national  shall  visit  any  restricted/protected/prohibited area  of India without permission from the Ministry of  Home Affairs.  It was also clarified that the sanction of foreign exchange was subject to the condition that CAB would utilize only  the minimum foreign exchange required for the  purpose and shall deposit foreign exchange obtained by 167 it by way of fee, sponsorship, advertisements,  broadcasting rights,  etc. through normal banking channels under  intima- tion to the Reserve Bank of India.  On September 17, 1993 on the  application of CAB made on September 7, 1993, VSNL  ad- vised  CAB  to approach the respective  Ministries  and  the Telecom  Commission  for approval (a)  regarding  import  of earth  station  and  transmission  equipment  and  (b)   for frequency clearance from Telecom Commission.  The  satellite

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 47 of 109  

to be used for the transmission coverage, was also  required to  be  specified.  It was further stated  that  CAB  should approach  VSNL  for uplinking signal to  INTELSAT  at  Wash- ington.   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 per- mission  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 objec- tion’  to the use of walkie-talkie sets in the play  grounds during the matches subject to the permission to be  obtained from WPC. 91.On October 18, 1993, the CAB addressed a letter to DD for telecasting  rights for telecasting matches  mentioning  its earlier offer of rights for telecasting and pointed out that the  offer of Rs.10 million made by DD vide its fax  message dated March 31, 1993 and on the condition the CAB should not grant any right to Star TV was uneconomical, and considering the  enormous organizational cost, they were looking  for  a minimum  offer of Rs.20 million.  The CAB also  pointed  out that the offers received by them from abroad including  from TWI,  were  much  higher than Rs.20  million  and  that  the payment under the offers would be made in foreign  exchange. The CAB also stated that they were given to understand  that DD  was not interested in increasing their offer  and  hence they  entered into a contract with TWI for  telecasting  the matches.  However, they were still keen that DD should  come forward  to telecast the matches since otherwise  people  in India would be deprived of viewing the same.  Hence they had made TWI agree to co-production with DD and they also prayed the  DD  for such co-production.  The CAB’s  letter  further stated  that during a joint meeting the details were  worked out including the supply of equipment list by the respective parties,  and it was decided in principle to go for a  joint production.  The CAB stated that it was also agreed that  DD would not claim exclusive right and CAB would be at  liberty to  sell the rights to Star TV.  Thereafter CAB learnt  from newspaper  reports that DD had decided not to  telecast  the matches.   Hence  they  had written a  letter  to  DD  dated September 15, 1993 to confirm the authenticity of such news, but they had not received any reply from DD.  It was pointed that in the meanwhile they had been repeatedly approached by Star TV, Sky TV and other network to telecast matches to the Indian  audience  and some  of them on an  exclusive  basis. But they 168 had not taken a decision on their offers, since they did not want to deprive DD’s viewers.  It was further recorded  that the CAB had also learnt recently that DD would be interested in acquiring the rights of telecast provided it was  allowed to produce the matches directly, and the matches produced by TWI  were made available to it live, without payment of  any technical  fees.  After recording this, the CAB  made  fresh set of proposals, the gist of which was as follows:               1.    TWI and Doordarshan would cover 9 (nine)               matches each in the tournament  independently,               which are as follows:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 48 of 109  

             Trans World International               November               08    South.  Africa v. Zimbabwe (Bangalore)               11    India v. S. Africa (Delhi Chandigarh)               13    W.Indies v. S.Africa (Bombay, Brabourne)               16    Pakistan v. S.Africa (Cuttack)               19    S.Africa v.Sri Lanka (Guwahati)               21    India v. Pakistan (Chandigarh)               23    First Semi Final (Calcutta)               -     Second Semi Final (Calcutta)               -     Final (Calcutta)               Doordarshan               November                07 India v. Sri Lanka (Kanpur)                09   W.Indies v. Sri Lanka (Bombay,Wankhede)                15   Sri Lanka v. Zimbabwe (Patna)                16   India v. W. Indies (Ahmedabad)                18   India v. Zimbabwe (Indore)                21   W. Inidies v.Zimbabwe (Hyderabad)                2.   TWI will do the coverage of thesematches               with    their   own   equipment,   crew    and               commentators.   Similarly,  Doordarshan   will               also  have  their  own  crew,  equipment   and               commentators for the matches produced by them.               3.    Doordarshan  will be at liberty  to  use               their own commentators for matches produced by               TWI for telecast in India.  Similarly, TWI may               also  use  their  own  commentators  if   they               televised  matches produced by Doordarshan  in               other networks.               4.    TWI  will allow Doordarshan to  pick  up               the  Signal  and telecast live  within  India,               free of charges.  Similarly, Doordarshan  will               allow    TWI   to   have   the   Signal    for               live/recorded/highlights telecast abroad, free               of charges.               5.   Doordarshan will not pay access  fees  to               CAB,  but  shall allow 4  minutes  advertising               time  per hour (i.e. 28 minutes in  7  hours).               The  CAB will be at liberty to sell such  time               slot  to the advertisers and the  proceeds  so               received will belong to CAB.               6.    Contract will be entered upon by the CAB               and   Doordarshan  directly  for   the   above               arrangements.    TWI  will  give   a   written               undergoing  for  the  coverage      breakup as                             mentioned in point 1.               7.    Score   Card  and  Graphics   shall   be               arranged  by  CAB and the  expenses  for  such               production or income derived from  sponsorship               shall be on the account of CAB.  Both TWI  and               Doordarshan  will  use such  Score  Cards  and               Graphics as arranged by CAB. 92.  The  CAB requested the DD to  communicate  their  final decision in the matter  before  October 21, 1993. 93.  On  October  26, 1993 VSNL  sent  a  communication   to INTESLSAT      at Washinton seeking information of uplinking timings for TV transmission asked for by CAB/TWI. On October 27, 1993 the Tele- 169 communications Department sent a letter to the Central Board of  Excise  and Customs on the question of  temporarily  im- porting   electronic  production  equipment   required   for transmission  of  one-day  matches  of  the  tournament  and conveying ’ no objection’ of the Ministry of  Communications

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 49 of 109  

to the proposal, subject to the organizers coordinating with WTC  (DoT)  for  frequency  clearance,  from  the  "Standing Advisory Committee on Frequency Allocation (SACFA)", for  TV up-linking from different places and coordinating with VSNL, Bombay for booking TV transponders. 94.  On October 27, 1993, DD informed CAB with reference  to its  renewed  offer of October 18, 1993 that the  terms  and conditions  of the offer were not acceptable to it and  that they  have already intimated to them that DD will  not  take signal from TWI - a foreign Organisation.  They also made it clear that they had not agreed to any joint production  with TWI.  On October 29, 1993, CAB replied to DD that they  were surprised   at  the  outright  rejection  of   the   various alternative proposals they had submitted.  They had  pointed out  that  the only reason given for rejection was  that  DD will not take signals from TWI, which was a foreign  organi- zation.   Since they had also suggested production  of  live matches by DD the question of taking signal from TWI did not arise.  CAB further stated that purely in deference to  DD’s sensitivity about taking signal from TWI, CAB would be quite happy to allow DD to produce its own picture of matches  and DD may like to buy rights and licenses from CAB at ’a  price which  will be mutually agreed upon, and that  these  rights would  be  on nonexclusive basis on  Indian  territory.   On October  30, 1993, DD sent a message to CAB stating that  DD will  not  pay access fee to CAB to  telecast  the  matches. However, for DD to telecast the matches live, CAB has to pay technical  charges/ production fee at Rs.5 lakh  per  match. In  that case DD will have exclusive rights for  the  signal generated and the parties interested to take the signal will have to negotiate directly with the DD.  On October 31, 1993 DD sent a fax message to CAB to the same effect. 95.  On November 1, 1993 VSNL deputed its engineers/staff to be  at  the venues where the matches were  being  played  to coordinate  with TWI for TV coverage.  On November 2,  1993, TWI paid US $29,640 and [Pounds] 121,400 to VSNL as fees for INTELSAT  charges.   On the same day, the  Finance  Ministry permitted  the  equipment of TWI to be imported  on  certain conditions  by waiving the customs and additional duties  of customs.  On November 4, 1993, CAB addressed a letter to  DD referring to DD’s fax message of October 31, 1993 asking for certain  clarification  on the offer made by  DD.   In  this letter,  CAB  stated that since, DD had asked for  fees  for production and telecast of matches, it was presumed that all revenue  generated from the matches or entire  timeslot  for advertisements, would belong to CAB and that they shall have the right to charge access fees including other charges from parties  abroad,  and DD would telecast  those  matches  for which  CAB will pay the charges.  The choice of the  matches to  be  telecast by DD would be determined by CAB.   On  No- vember 5, 1993, the DD rejected the terms. 96.   On November 8, 1993, CAB filed                             170 a  writ petition in the Calcutta High Court  praying,  among others,  that the respondents should be directed to  provide telecast  and broadcast of all the matches and also  provide all   arrangements  and  facilities  for   telecasting   and broadcasting  of the matches by the agency appointed by  the CAB,  VI_.,  TWI.  Interim reliefs were also sought  in  the said petition.  On the same day, the High Court directed the learned  advocate of the Union of India to  obtain  instruc- tions in the matter and in the meanwhile. passed the interim orders  making it clear that they would not prevent DD  from telecasting   any  match  without  affecting  the   existing arrangements  between  CAB and TWI.  The writ  petition  was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 50 of 109  

posted for further hearing on November 9, 1993 on which day, the learned Single Judge confirmed the interim orders passed on  November  8, 1993 and respondents were  restrained  from interfering  with the frequency lines given  to  respondents NO.10 [TWI].  On 10th November, 1993, VSNL advised  INTELSAT at Washington seeking cancellation of its request for  book- ing.  On November 11, 1993, the learned Judge partly allowed the writ by directing All India Radio to broadcast  matches. On  November  12, 1993 in the appeal filed by the  Union  of India  against the aforesaid orders of the  Division  Bench, the High Court passed interim order to the following effect: (a)that  CAB would pay DD a sum of Rs.5 lakh per  match  and the  revenue collected by DD on account of sponsorship  will be kept in separate account. (b)that DD would be the host broadcaster. (c)that  Ministry  of Telecommunication would  consider  the question of issuing a license to TWI under the Telegraphs Act and decide the  same within three days. 97. On November 12, 1993, the Film Facilities Officer of the MIB informed the Customs Department at New Delhi, Bombay and Calcutta  airports,  that as TWI had not  obtained  required clearances  from  the  Government for the  coverage  of  the tournament,  they should not be permitted to remove  exposed film  outside India till it was cleared by  the  Government. On  the  same  day,  DD  asked  the  CAB  providing  various facilities at each match venue as this was pre-requisite for creating host broadcaster signal in India.  CAB sent a reply on  the same day and called upon the DD to telecast  matches within  India  pursuant to the High Court’s order.   On  the same day again the Collector of Customs, Bombay called  upon CAB  to  pay customs duty on the equipment as  there  was  a breach in the terms of the, exemption order. 98.  On  the  same  day,  i.e.,  November  1993,  again  the Committee  of Secretaries decided that the telecast  of  all sporting events would be within the exclusive purview of the DD/MIB.   It  was  also decided that  for  the  purposes  of obtaining  necessary  clearances for  telecasting  different types  of  events for the country, a Single  Window  service would  be followed where the concerned  Administrative  Min- istry   would  be  the  ’Nodal’  Ministry  to   which’   the application will be submitted and it would thereafter be the function of the ’Nodal’ Ministry to obtain permissions  from the concerned Ministry/Agencies. 99. On 14th November, 1993, the High Court in  clarification of its order of No- 171 vember 12, 1993 directed, among others, as follows: [a]  In case the signal is required to be generated  by  TWI separately, such necessary permission should be given by  DD and/or other competent authorities. . [b] The differences with regard to the placement of  cameras etc.,  if  any, between cricket authority and DD  should  be mutually worked out, and if this cannot be done, the dispute should  be  decided by the Head of the Police in  the  place where the match was being played. [c]  The  equipment  of TWI which had  been  seized  by  the Customs  Authority should be released upon undertaking  that the same would not be used for any. other purpose and [d]  The  VSNL should take proper steps for  uplinking,  and should not take any steps to defeat the orders of the Court. The  TWI  should comply with all  financial  commitments  to VSNL. 100.  On  November 15, 1993, the CAB and another  filed  the present  Writ  Petition No. 836 of 1993.   On  November  15.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 51 of 109  

1993,  this  Court passed an order directing  the  Secretary Ministry  of Communications to hold meeting on the same  day by  4.30 P.M. and communicate his decision by 7.30 P.M.  The Customs Authorities were directed to release the equipments. On  the  same day at night another order was  passed  partly staying  the orders of the Chairman, Telecommunications  and Secretary,  Dot.   TWI  was permitted to  generate  its  own signals and Customs Authorities were directed to release the goods forthwith. 101. , The DD filed Contempt Petition in the High Court on the same day against CAB and another,  for noncompliance  with  the orders of the High Court.   The  DD also filed the present Special Leave Petitions in this Court on the same day. 102.      What  emerges from the above correspondence is  as follows.   The  CAB  as early as on 15th  March,  1993,  had offered  to  the DD two alternatives, viz.,  either  the  DD would  create  host broadcaster signal  and  undertake  live telecast  of all the matches in the tournament or any  other party  may create the host broadcaster signal and  DD  would purchase from the said party the rights to telecast the said signal in India.  The CAB made it clear that in either case, the  foreign TV rights would remain with it.  The  CAB  also asked the DD to indicate the royalty that it will be willing to pay in either case.  To that, on 18th March, 1993, the DD rejoined  by asking in turn the amount of royalty  that  the CAB expected if the rights were given to it exclusively  for India  without  the.  Star TV getting it.   On  19th  March, 1993,  the CAB informed the DD that they would charge US  $8 lakhs  for  giving  the  DD the right  to  create  the  host broadcaster signal and  also for granting it exclusive right for India  without the  Star TV getting it It was however, emphasised that  the CAB  would  reserve the right to sell/license the  right  of broadcasting worldwide excluding India and the Star TV.  The CAB also stated that the DD would be under an obligation  to provide a picture and commentary subject to payment of  DD’s technical fees.  On 31st March, 1993, the DD sent its bid as host  broadcaster  for a sum of Rs.1 crore [i.e..  about  US $3.33 lakhs at the then exchange rate].  Obviously, this was less  than 50 per cent of the royalty which was demanded  by the CAB.  The 172 CAB   was,  therefore,  justified  in  looking   for   other alternatives  and that is what they did before the DD  by  a fax  message  of 4th May, 1993 reminded the CAB  about  DD’s offer  of  Rs.  1 crore [i.e., US  $3.33  lakhs].   To  that message,  the  CAB  replied on 12th May, 1993  that  it  had decided to sell/allot worldwide TV rights to only one  party and, therefore, they would like to know whether the DD would be  interested  in the said deal and if so,  to  send  their offer for worldwide TV rights, latest by 17th May, 1993.  To this, on 14th May, 1993, the DD by Fax, replied that it  was interested  only  in  exclusive TV rights  for  India  alone without  the  Star TV getting it and that it  stood  by  its earlier  offer of Rs.  1 crore [i.e., US $3.33 lakhs].   The DD  went further and stated that as there was a  speculation that-Pakistan might not participate in the tournament  which eventuality  was likely to affect viewership and  commercial accruals,  it will have to rethink on that bid also  meaning thereby that even the offer of Rs.  1 crore may be reduced. 103.      According to the MIB, the CAB, thereafter, entered into  an  agreement  with  World  Production   Establishment representing  the interests of TWI for telecasting  all  the matches without obtaining clearance from the Government  for

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 52 of 109  

telecasting,  and  granted TWI sole and exclusive  right  to sell  or  otherwise  exploit all exhibition  rights  of  the tournament.   Under the agreement with TWI, the CAB  was  to receive  US $ 5.50 lakhs as guaranteed sum and in  addition, if  any  rights  fee income was received in  excess  of  the guaranteed  sum, it was to be. split in the ratio  of  70:30 between the parties, i.e. 70 per cent to the CAB and 30  per cent to TWI.  Learning of this, the DD informed the CAB that it had decided not to telecast the matches of the tournament  by paying TWI TV rights fee and that it was  not prepared  to  enter into any negotiations with TWI  for  the purpose. 104.      Again  on  18th  October, 1993,  CAB  addressed  a letter  to  DD for telecasting the  matches  mentioning  its earlier offer of rights for telecasting and pointed out that the offer of Rs.  1 crore made by DI) on the condition  that the  CAB  should  not  grant  any  right  ’to  Star  TV  was uneconomical.   CAB  also pointed out that  considering  the enormous  organisational costs involved, they  were  looking for  a  minimum offer of Rs.20 million.In  this  connection, they  pointed  out  that the offers received  by  them  from abroad-including  from  TWI  were  much  higher  than  Rs.20 million  and under those offers, the payment was also to  be received  in  foreign exchange.  The CAB further  stated  in that  letter that they were given to understand that DD  was not  interested  in increasing their offer  and  hence  they entered  into  a  contract  with  TWI  for  telecasting  the matches.   Yet, they were keen that DD should  telecast  the matches since otherwise people in India would be deprived of viewing  the same.  They had, therefore, made the TWI  agree for  co-production with DD.  They, therefore, requested  the DD  to agree to such co-production.  The CAB also stated  in the said letter that in fact in a joint meeting, details  of such  arrangement  were worked out including the  supply  of equipment list by the respective parties and it was  decided in principle to go in for joint production.  In the meeting, it  was  further agreed that DD would  not  claim  exclusive rights and the CAB would be at liberty to sell the rights to Star  TV.  However, since subsequently they had learnt  from newspaper  reports that DD had decided not to  telecast  the matches, by their 173 letter of 15th September, 1993 they had asked DD to  confirm the  authenticity of the news items.  The DD,  however,  had not  responded to the said letter.  In the  meanwhile,  many other   networks   had  repeatedly   approached   them   for telecasting matches to the Indian audience and some of  them on  exclusive  basis.  But they had still  kept  the  matter pending  since they did not want to deprive the  viewers  of the  DD  of the matches.  They further added that  they  had also learnt that DD would be interested in acquiring  rights of telecast provided it was allowed to produce some  matches directly and the matches produced by TWI are made  available to  it live without payment of any technical fee.  The  CAB, therefore,  in the circumstances, suggested a fresh  set  of proposals for DD’s consideration and requested response  be- fore  21st  October,  1993.   On  27th  October,  1993,   DD responded to the said letter in the negative and stated that the offer made was not acceptable to it and they had already communicated to that effect earlier, stating that they  will not  take any signal from TWI.  DD further denied that  they had agreed to any joint production with TWI.  The CAB by its letter  of  29th October, 1993 pointed out, in  response  to this  letter, that since they had also suggested  production of  live matches by DD, question of taking signals from  TWI

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 53 of 109  

did  not arise, and in deference to DD’s  sensitivity  about taking  signals from TWI, CAB would be quite happy to  allow DD  to  produce its own picture of matches and  DD  may  buy rights  and  licences  from  it at a  price  which  will  be mutually agreed upon. 105.      Thus, the controversy between the parties was with regard to the terms for the telecasting of the matches.   It must be noted in this connection that the DD had never  stated to the CAB that it had no frequency  to  spare for telecasting the matches.  On the other hand, if the  CAB had  accepted the terms of the DD, DD was ready to  telecast the  matches.   Therefore, the argument  based  on  resource crunch as advanced on behalf of the MIB/ DD, is  meaningless in the present case. 106.      All that we have to examine in the present case is whether  the MIB/DD had stipulated  unreasonable  conditions for telecasting the matches.  It is apparent from the  above correspondence between the parties that CAB wanted a minimum of  U.S.  $8  lakhs,  i.e.,  Rs.2.40  crores.   However,  DD insisted that it would be the host broadcaster and will have exclusive telecasting rights for India and for these rights. it  will pay only Rs. 1 crore. i.e. US $3.33 lakhs.  It  had also  threatened to reduce the said offer of Rs.  one  crore because  Pakistan  was  not likely  to  participate  in  the tournament.   When it was pointed out by the CAB  that  this offer  was  uneconomical  taking.  into  consideration   the enormous  costs  involved and that they were looking  for  a minimum of Rs. 2 crores and had received higher offers  from other parties under which the payments will also be made  in foreign exchange, DD stuck to its earlier offer and  refused to raise it.  In the meanwhile, the CAB received an offer of U.S.  $5.50  lakhs,  i.e.,  Rs.  1.65  crores  from  TWI  as guaranteed sum plus a share to the extent of 70 per cent  in the rights income fee.  The CAB being the sole organiser  of the  event  had every right to explore the  maximum  revenue possible  and there was nothing wrong or improper  in  their negotiating  with TWI the terms and conditions of the  deal. However, the only response of DD to these arrangements which were being worked out between the CAB and 174 TWI  was  that  it would not telecast  the  matches  of  the tournament by paying TWI the fees for purchasing the  rights from that Organisation.  Even then the CAB did not shut  its doors  on  DD,  and  by its letter  of  18th  October,  1993 informed the DD that it was keen that DD should telecast the matches so that people in India are not deprived of  viewing the  matches.   They also informed the DD that it  was  with this purpose that they had made TWI agree for  co-production with the DD and had made a fresh set of proposals.  However, these  proposals  were on materially  different  terms.   To this,  the DD replied by its letters of 27th  October,  1993 that  the  terms and conditions of the offer  were  not  ac- ceptable to it.  The CAB by its letter of 29th October, 1993 again  offered  the DD that if their only objection  was  to taking signals from TWI, since they had suggested production of live matches by DD in their fresh proposals, there was no question  of  taking  signals  from  TWI  and  they   should reconsider the proposals.  To this, the only reply of the DD was that they will not pay any Access Fee to CAB to telecast the matches and if DD were to telecast the matches, the  CAB will  have  to pay Technical/Production Fee at the  rate  of Rs.5  lakhs  per match, and in that case the  DD  will  have exclusive  rights for the signal generated, and the  parties interested  will have to take the signals from the DD  after negotiating  directly with it.  In other words, the DD  took

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 54 of 109  

the  stand that not only it will not pay any charges to  the CAB for the rights of telecasting the matches, but it is CAB which will have to pay the charges, and that the DD will  be the sole producer of signals and others will have to buy the signals from it.. 107.      Thus the correspondence between the  parties  shows that each of the parties was  trying  to score  over the other by taking advantage of  its  position. The  blame  for the collapse of the negotiations has  to  be shared  by  both.  The difference, if any, was only  in  the degree of unreasonableness.  If anything, this episode  once again  emphasises  the need to rescue the  electronic  media from the government monopoly and bureaucratic control and to have an independent authority to manage and control it. 108.      Coming  now  to the change in the,  stand  of  the other Departments of the Government for granting  facilities to the agency engaged by the CAB, the facts make a revealing reading.   The  actions of the various  Departments  of  the Government, referred to earlier, show firstly, that the Min- istries of Human Resources Development, of Home Affairs,  of Finance,  of Communications, and the VSNL had  no  objection whatsoever  to  the arrangements which the CAB  had  entered into with TWI, the foreign agency, for covering the  cricket matches.  In fact they granted all the necessary permissions and  facilities  to the CAB/TWI in all respects  subject  to certain  conditions with which neither the CAB nor  TWI  had any  quarrel.   Secondly,  these  various  Departments   had accepted  TWI as the agency of CAB for the purposes  of  the said coverage and they had no objection to the TWI  covering the  matches  on the ground that it was  a  foreign  agency. This  was the situation till the writ petition was filed  by the  CAB in the Calcutta High Court on 8th  November,  1993. It  is  necessary to remember in this  connection  that  the decision or the DD to intimate CAB that it will not pay even access fee to the CAB to telecast the tournament and that it was for the CAB to pay the technical/pro- 175 duction  fee  of  Rs.  5 lakhs  per  match  with  DD  having exclusive  right for the signal generated, and  others  will have  to buy it after negotiating directly with the DD,  was taken  on  30th/31st October, 1993.  It is in  that  context that further developments which are relevant for our purpose and  which  took  place during the  pendency  of  the  Court proceedings,  have  to  be  viewed.   It  is  only  on  12th November,  1993 that the Committee of Secretaries  came  out with  the concept of the ! nodal ministry.  By  itself,  the decision  to  form  the nodal  ministry  to  coordinate  the activities  of all the concerned ministries and  departments is  unexceptional.  But the time of taking the decision  and its  background was not without its significance.   However, there is no adequate material on record to establish a nexus between  the MIB/DD and the aforesaid actions of  the  other authorities. 109.      The nexus in question was sought to be established by  the CAB by pointing out to the letter addressed  by  the Deputy Secretary in MIB with the approval of the  Secretary, of  that Ministry to Department of Youth Affairs and  Sports of the Ministry of Human Resources Development.  It in terms refers  to  the meeting of the committee of  Secretaries  on 12th  November,  1993 and states that according to  the  so- called "extant policy" of the Government, as endorsed by the Committee of Secretaries, the telecasting of sporting events is within the exclusive purview of DD/MIB. Accordingly,  the NIB opposes the grant of any permission to M/s.  WPE or  its agency  TWI or any Indian company to cover the  matches  for

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 55 of 109  

general reception in India through uplinking facility except in collaboration with DD with only the latter being the sole agency entrusted with the task of generating TV signal  from the venue of the matches.  It further states that the MIB opposes  [i] import  of any satellite earth station for the  coverage  of the  series, [ii] the grant of any ad-hoc exemption for  the import  of  equipment  by WTE or  TWI  without  their  first producing the approval of the competent authority permitting its  use within India, in terms of the provisions of  Indian Telegraph Act, 1885 and the Wireless Telegraph Act, 1933  in the  absence  of which possession of such  equipment  within India  constitutes an offence, [iii] M/s.  WTE or TWI  being permitted  to undertake shooting of the cricket  matches  at different  places and grant of visa or RAP to its  personnel for visiting India, and [iv] the grant of any permission  to any  aircraft  leased by M/s.  WPE/TWI for  landing  at  any international or national airport. 110.      It  was urged that the question of the absence  of permission/licence  of the requisite authorities  under  the Indian  Telegraph  Act and the Wireless  Telegraph  Act  was never raised or made a ground for denial of the right to the BCCI/CAB  to  telecast the matches or to uplink  the  signal through TWI till after CAB had approached the Calcutta  High Court on 8th November, 1993.  It was contended that the  MIB woke  up suddenly to the relevant provisions of the  statute after the Court proceedings.  We are, however, not satisfied that  these  events conclusively establish  that  the  other Departments acted at the behest of the DD/MIB. 111.      The circumstances in which the High Court case  to pass its interim order dated 12th November, 1993 may now  be noticed.  The MIB and DD’s appeals are directed against  the said  order  ’and  writ petition is filed  by  the  CAB  for direction to respondent Nos.  1 to 9, which include, 176 among others, Union of India. 112.      In  the writ petition filed by the CAB before  the High  Court on 8th November, 1993, the learned Single  Judge on  the  same  day passed an  order  of  interim  injunction commanding   the   respondents  to  provide   all   adequate facilities  and cooperation to the petitioner  and/or  their appointed agency for free and uninterrupted telecasting  and broadcasting of the cricket matches in question to be played between 10th and 20th November, 1993, and restrained the re- spondents from tampering with, removing, seizing or  dealing with any equipment relating to transmission, telecasting  or broadcasting  of the said matches, belonging to the CAB  and their  appointed agency, in any manner whatsoever.   On  the next  day, i.e., 9th November, 1993 the said  interim  order was  made  final.   On  the  11th  November,  1993,  on  the application  of  the  CAB  complaining  that  the  equipment brought by their agency, viz., TWI [respondent No. IO to the petition]  were  seized by the  Bombay  Customs  authorities under the direction issued by the Ministry of Communications and  the MIB, another order was passed by the learned  Judge directing  all  Government  authorities  including   Customs authorities  to  act in terms of the interim  orders  passed earlier on 8th/9th November, 1993.  While passing this order in  the presence of the learned counsel for the  respondents who pleaded ignorance about the seizure of the equipment  by the Customs authorities, the learned Single Judge  observed, among other things, as follows: "It  is  submitted by the learned Counsel on behalf  of  the respondent   that   since  Doordarshan   has   been   denied telecasting  of  the  tournament by the  respondent  No.  6,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 56 of 109  

Akasliban has also decided to stop broad- casting  and  in support of his contention  has  produced  a letter  dated 10th of November, 1993 issued by  the  Station Director, Calcutta, for Director General, All India Radio to Shri S.K. Kundu, Central Government’s Advocate whereupon  it appears  that  it  was admitted, that All  India  Radio  had planned to provide running commentary of the matches of  the above  tournament  organised by the Cricket  Association  of Bengal,  but  as  Doordarshan was  denied  the  facility  of nominating the Host Broadcaster’s Signal and it consequently decided not to cover those matches, All India Radio also had decided  to  drop the coverage of those  matches  since  the principles  on which Doordarshan based its decision,  viz.,, the  protection of inherent interest of the National  Broad- casters to generate the signal of sports, applied equally to the All India Radio. I  fail to understand the logic behind the said  letter  and the  stand taken by the All India Radio in the matter  which appears  to me wholly illogical and ridiculous,  Doordarshan might have some dispute with the.... regarding the right  to be   the  Host  Broadcasters  Signal   including   financial questions, but the All India Radio, which itself volunteered to  broadcast the matches themselves, and when,  admittedly, no  financial transaction is involved between the All  India Radio and the respondent No.6, denial of the All India Radio to broadcast the said matches only on the ground that  since Doordarshan was  denied  by  the  respondent  No.6  to  be  1  the  Host Broadcaster’s   Signal,   the  All   India   Radio   stopped broadcasting  the matches following the same principle,  ap- pears to be absolutely whimsical and capricious. x    x     x     x    x   x Such denial by the All India Radio certainly is an act  done against  the  public interest and thus cannot  be  supported and/ 177 or  upheld  to deprive the general people of India  of  such small satisfaction... x     x      x     x     x    x Accordingly,  I  find the action of the All India  Radio  in stopping the broadcasting of aforesaid tournament is  wholly illegal, arbitrary and mala fide.... This  writ application accordingly succeeds and  allowed  to the extent as stated above, and let a writ in the nature  of mandamus to the extent indicated above be issued." 113. The Union of India preferred an appeal against the said decision and in the appeal moved an application for  staying the  operation  of the orders passed by the  learned  Single Judge  on  8th/9th November, 1993.  Dealing  with  the  said application, the Division Bench in its order dated other things, as follows: "Mr.  R.N. Das, learned Counsel appearing for and on  behalf of  the  Union of India and others  including  the  Director General  of Doordarshan, appearing with Mr. B.  Bhattacharya and  Mr.  Prodosh  Mallick submitted inter  alia,  that  the Doordarshan  authority  is very much inclined  and  keen  to telecast the Hero Cup matches in which several parties  from abroad  are  participating  including  India.   But  it  was pointed  out  that  the difficulties have  been  created  by Cricket Association of Bengal in entering into an  agreement with  Trans World International [UK] Inc.  World  Production the  respondent  No.10  of the  writ  petition  wherein  the Cricket Association of Bengal has given exclusive rights  to telecast  to  that authority.  It was submitted by  Mr.  Das that  under Section 4 of the Indian Telegraph Act, 1885  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 57 of 109  

Central   Government   have  the  exclusive   privilege   of establishing, maintaining and working telegraph and that it was further submitted that the   expression   telegraph  includes   telecasts   through Doordarshan. it was further provided that proviso to Section 4  [1] of the said Act provides that the Central  Government may grant a licence on such conditions and in  consideration of  such  payments  as  it  thinks  fit  to  any  person  to establish,  maintain or work a telegraph within any part  of India.   Relying upon the provisions it was  submitted  that neither  the CAB nor the TWI respondent No. 10 of  the  writ application  have  obtained any licence for the  purpose  of telecasting the matches direct from India." 114.  The Court then referred to the correspondence  between the  CAB and the DD between 31st March, 1993 and 31st  Octo- ber, 1993 and the letters of no objection issued to the  CAB by  the Ministry of Communications and the VSNL and  to  the acceptence by the VSNL  of the payments from TWI as per  the demand  of  the  VSNL  itself  for  granting  facilities  of uplinking  the  signal and recorded its  primafacie  finding that the DD was agreeable to telecast matches live for India on  a  consideration of Rs.5 lakhs per match which  was  ac- cepted  under protest and without prejudice by the  CAB  and the only dispute was with regard to the revenue to be earned through  advertisements  during the period of  the  matches. The  Court said that it was not adjudicating on as  to  what and in what manner the revenue through advertisements  would be created and distributed between the parties.  It left the said  points to be decided on merits in the  appeal  pending before it and proceeded to observe as follows:               "...  but  it  present having  regard  to  the               interest of millions of Indian viewers who are               anxiously expecting to see such live               178               telecast, we record as Doordarshan is inclined               to telecast the matches for the Indian viewers               on receipt of Rs.5 lakh per match and to enjoy               the  exclusive right of signalling within  the               country being host broadcaster, we direct  the               CAB to pay immediately a sum of Rs.5 lakhs per               match  for this purpose and the collection  of               revenue on account of sponsorship or otherwise               in  respect of 28 minutes which  is  available               for  commercial  purpose be  realised  by  the               Doordarshan  on  condition  that  such  amount               shall be kept in a separate account and  shall               not  deal with and dispose of the said  amount               until  further  orders and we  make  it  clear               regarding  the entitlement and the  manner  in               which the said sum will be treated would abide               by the result of the appeal or the writ appli-               cation.   Accordingly, it is made  clear  that               Doordarshan  shall on these  conditions  start               immediately  telecasting the live  matches  of               the  Hero Cup for the subsequent matches  from                             the next match in India.  Mr. Das Id.  counsel               appearing  on behalf of the appellant  submits               that  they were in a position  technically  or               otherwise   to  telecast  immediately.    With               regard  to  the right of TWI to  telecast  the               matches  outside India is concerned,  we  also               record  that  on time of hearing  the  counsel               appearing on behalf of the appellant showed an               order  in  three  lines  that  the   authority               concerned has summarily and without giving any

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 58 of 109  

             reason and/or any hearing whatsoever  directed               to VSNL not to allow the TWI to transmit or to               telecast from India in respect of the Hero Cup               matches  but it was submitted by  the  learned               Counsel appearing for the appellant that  they               are  very much keen to consider the matter  in               proper  perspective in accordance  with  laws,               having  regard to the national impact on  this               question.  It appears that on the basis of the               representation made by VSNL, TWI came into the               picture  and subsequently TWI entered into  an               agreement with the CAB.  At this stage, we are               not  called  upon to decide  the  validity  or               otherwise               of  such  an  agreement entered  into  by  the               parties.   As a matter of fact, we are  refer-               ring this without prejudice to the rights  and               contentions   of  the  parties.   It   further               appears  that the Government of India  through               the  Department of Communication  stated  that               the  said  department had  no  objection  with               regard  to  the  permission  to  the  CAB  for               temporarily   importing   electronic   product               equipments  required for transmitting one  day               matches  of the Hero Cup as a part of  Diamond               Jubilee   Celebration  to  be   started   from               November  7 to 27, 1993, the Ministry  has  no               objection   to   proposal  "subject   to   the               organisers  Co-ordinating with WPC  [DOT]  for               frequency clearance from the Standing Advisory               Committee on frequency allocation {SACFA}  for               TV   uplinking  from  different   places   and               coordinating with VSNL, Bombay for booking  of               TV transponders etc.  It appears that the said               no   objection  certificate  has   created   a               legitimate  expectation, particularly in  view               of the fact that the money demanded by VSNL in               this  behalf was duly paid by TWI and all  ar-               rangements   have   been  made  by   TWI   for               performing the job.  As we find that no formal               permission   is  required  under  proviso   to               Section 4 [1] of Indian Telegraph Act is there               in  favour of the party, having regard to  the               facts  stated  above  and  having  regard   to               National  and  International  impact  on  this               question  and having regard to the  fact  that               any  decision taken will have  the  tremendous               impact on the International sports, we  direct               the  appellant No.5 who is respondent No.6  in               the writ application.  The Secretary, Ministry               of  Telecommunication,  Sanchar  Bhavan,   New               Delhi,  Government  of India to  consider  the               facts  and circumstances of the  case  clearly                             suggesting  that  there had  already  been  an               implied  grant  of permission, shall  grant  a               provisional  permission  or  licence   without               prejudice to the rights and contentions of the               parties   in   this  appeal   and   the   writ               application and subject to the condition  that               the respondent No.6               179               in the writ application will be at liberty  to               impose such reasonable terms and condi-  tions               consistent  with  the provision to  Section  4               [1]of the Indian Telegraph Act, having  regard

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 59 of 109  

             to the peculiar facts and circumstances of the               case.   If  TWI  comply with  such  terms  and               conditions   that  may  be   imposed   without               prejudice  to their rights and contentions  in               the  interest  of sports and  subject  to  the               decision   in   this  appeal   or   the   writ               application shall be entitled to telecast  for               International  viewers outside  India....  The               Secretary,   Ministry  of   Telecommunication,               Sanchar  Bhavan, New Delhi, Government of  In-               dia,  is directed to decide this  question  as               directed  by us within three days  from  today               and  all  the parties will be entitled  to  be               heard, if necessary.  We must put in on record               our anxiety that the matter should be taken in               the  spirit  of sports not on  the  spirit  of               prestige  or  personal  interest  and   should               approach  the problem  dispassionately  rising               above  all  its narrow interest  and  personal               ego.....  In order to comply with  this  order               any  order of detention of the  equipments  of               TWI should not be given effect to." 115.  The Court also made it clear that in order  to  comply with its order, any order of detention of the equipments  of TWI  should  not be given effect to.   Notwithstanding  this order  or  probably  in ignorance of it,  the  Collector  of Customs,  Bombay  wrote  to the CAB that  it  had  given  an undertaking  to  fulfill all the conditions of  the  ad  hoc order  dated  2nd November, 1993 under which  exemption  was given  to it for importing the equipments.  However, it  had not  fulfilled the conditions laid down at [1] and [iii]  of para 2 of the said ad hoc exemption order and, therefore, it should  pay an amount of Rs.3,29,07,711/as customs  duty  on the equipment imported by TWI.  They also threatened that if no  such duty was paid, the goods would be confiscated.   In view  of  the  said show cause notice,  the  CAB  moved  the Division  Bench and on 14th November, 1993.  The  lawyer  of TWI  also wrote a letter in the meanwhile on 13th  November, 1993  to the Customs authorities at Bombay  stating  therein that as TWI had sent a letter enclosing a copy of the  order of  the  Division  Bench  passed  on  12th  November,   1993 directing  them not to give effect to the detention  of  the equipments and complaining that in spite of it they had  not released the goods and, therefore, they had committed a con- tempt  of  the Court.  This grievance of CAB and  TWI  along with  the  complaint of the DD for not  permitting  them  to place  their cameras at the requisite places, were heard  by the Division Bench on 14th November, 1993 when the match was already being played in Bombay.  The Bench observed that the Court  was given to understand that none of the parties  was inclined to go higher up against its earlier order and  that what was required was certain clarification of that order in the changed circumstances.  The learned counsel for the  CAB stated  that  they were not going to oppose the  DD  placing their  cameras  but  the  dispute  had  arisen  as  to   the signalling  to be made for the telecast.  According  to  the learned  counsel for the Union of the India, there could  be only one signalling from the field and DD should be  treated as host broadcaster and the TWI should take signal from  it. This was opposed by the learned counsel for the CAB who con- tended.  that  DD  had been given exclusive  right  as  host broadcaster  so far as the telecasting of matches  in  India was concerned.  The telecasting of matches abroad was to  be done by TWI.  The Division Bench held that the DD will  have the exclusive right of signalling for the purposes of  tele-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 60 of 109  

casting  within the country, and they were to be treated  as host broadcasters so far as 180 telecasting  within India was concerned.  As far as  TWI  is concerned,  if it was authorised and permitted in  terms  of their  earlier  order,  it would  be  entitled  to  telecast outside  the country and to send their  signal  accordingly. They also stated that in case the signalling was required to be  made  by  the TWI separately  the  necessary  permission should  be given by the DD or other  competent  authorities. They  resolved the dispute with regard to the  placement  of cameras by directing that DD will have first priority and if there  was any dispute on that account it would be  resolved by the local head of the Police Administration at the  venue concerned.   They  also directed  the  Customs  authorities, Bombay  to release the equipments imported for the  purposes of  TWI with the condition that the said equipments will  be used only for transmission of the matches and they shall not deal  with  or dispose of the said equipments or  remove  it outside the country without the permission of the Court.  In particular, they also directed the VSNL to take proper steps for  uplinking  and  not  to take any  step  to  defeat  the purpose. 116.  Against  the  said order of the  Division  Bench,  the present appeals are preferred by the Ministry of Information and  Broadcasting  and others whereas the writ  petition  is filed  by  the CAB for restraining the  respondents,  (which include,  among others, Union of India [No.  1],  Secretary, Ministry  of  Information &  Broadcasting  [No.2],  Director General, Doordarshan [No.3], Secretary, Ministry of Communi- cations  [No.5], Director, Department of  Telecommunications [No.6],  and Videsh Sanchar Nigam Limited [No.9], from  pre- venting,  obstructing and interfering with or  creating  any hurdles  in the implementation of agreement dated  14.6.1993 between the petitioner-CAB and respondent No. 10, i.e., TWI. 117.  The matter was heard by this Court on  15th  November, 1993.   It  appears from the record that although  the  High Court had directed the Secretary, Ministry of Communications to decide the question of granting of licence under  Section 4 [1] of the Telegraph Act within 3 days from 12th November, 1993  by its order of the same day, the Secretary had  fixed the meeting for consideration of the application only on the 16th  November, 1993.  ’Mat itself was a breach of the  High Court’s  order.  This Court, therefore, directed the  Secre- tary to hear the matter at 4.30 p.m. on 15th November,  1993 and communicate its decision to TWI or its counsel or to the CAB  or its counsel immediately thereafter but  before  7.30 p.m. on the same day.  This Court also directed the  Customs authorities  to release the equipment forthwith  which  they had  not done in spite of the High Court’s order.   The  TWI and  CAB  were,  however, restrained  from  using  the  said equipment  till  the licence was issued  by  the  Secretary, Department of Telecommunication. 118.      Pursuant to the direction given by this Court, the Secretary by his order of 15th     November,   1993    after referring  to the judgment of the High Court and its  impli- cation and after taking into consideration the arguments  of the respective parties, held as follows: "In  this  connection,  we  have to  take  into  account  an important  point  brought  to our  notice  by  the  Director General  Doordarshan.   It  is true that Section  4  of  the Indian Telegraph Act of 1885 enables the government to  give licences to agencies other than Doordarshan or the  181 government  departments  to  telecast.   In  fact,  such   a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 61 of 109  

permission  had been given in January 1993 when the  cricket matches   were   telecast  by  the   same   TWI.    However, subsequently,  I am given to understand that the  government policy  in the Ministry of I&B has been that  the  uplinking directly by private parties/foreign agencies from India  for the purpose of broadcasting should not be permitted. It  is true that in a cricket match we are  not  considering security  aspects.   But,  the point  to  be  considered  is whether uplinking. given in a particular case will have  its consequences on other such claims which may not be  directly linked  to sports and which will have serious  implications. Within the government, as per Allocation of Business  Rules, it  is the Ministry of I&B which has the responsibility  for formulation  and implementation of the policies relating  to broadcasting/telecasting. As was made clear earlier, in this case, we are  considering two  aspects.   One  is the generation of  signals  and  the second   is   their  communication.    The   Department   of Telecommunication  comes  in  the  picture  so  far  as  the communication aspect is concerned. Taking  into  account the facts mentioned  above,  the  only reasonable  conclusion  I reach is that  permission  may  be given  to TWI for telecast overseas through the VSNL,  while Doordarshan will be telecasting within the country.  The TWI will have to get the signals from Doordarshan for  uplinking through  the VSNL by making mutual arrangements.  So far  as VSNL  is  concerned,  there  should  be  no  difficulty   in transmitting the signals through Intelsat as already  agreed upon. In my view, the above decision takes into account the  needs of  the  millions  of viewers both within  the  country  and abroad who are keen to watch the game and at the same time  ensures that  there is no conflict with the broad government  policy in  the Ministry of I&B which is entrusted with the task  of broadcasting.   It  also  takes  into  account  the  overall aspects  and the reasonable expectation created  within  the TWI  by  the  series of clearances given  by  the  different authorities of the Government of India". 119.  This  order  which was passed  around  7.30  p.m.  was challenged by the CAB, and being an urgent matter, was heard by  the  Court  late at night on the same  day.   The  Court stayed  the  order of the Secretary to the  extent  that  it imposed  a  condition  that the TWI will  have  to  get  the signals from the DD for uplinking through the VSNL by making mutual  arrangements.  The Court directed that the  TWI  can generate its own signal by focusing its cameras only on  the ground  where the matches were being played, as directed  by the  Ministry of Home Affairs and that they will  take  care not to focus their cameras anywhere else. 120.  For  telecasting the triangular series  and  the  West Indies tour to India in 1994 season, the same disputes arose between the parties.  By their letter of 25th August,  1994, the BCCI requested the Director, Sports, of the Ministry  of Human Resources Development, Department of Youth Affairs and Sports to grant permission to it or TWI/SPN to telecast  the triangular series and matches to be played between India and West  Indies.  By their letter of 30th August, 1994  written to the Secretary, Department of Sports, the MIB opposed  the grant  of  uplinking facilities to any foreign  agency.   On 14th  September, 1994, Ishan Television India Ltd.  [with  a tie-up with ESPN which had contract with 182 BCCI,  applied  to  the VSNL for  uplinking  facilities  for telecasting of the said matches.  The VSNL thereafter  wrote

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 62 of 109  

to  the NM for their "no objection" and the NUB opposed  the grant  of  "no objection" certificate and objected  to  VSNL writing  to the MIB directly for the purpose.  The  MM  also stated  that  their view in the matter was very  clear  that satellite  uplinking  from Indian soil would be  within  the exclusive   competence  of  the  MIB/DoT/DOS-and  that   the telecast of sporting events would be the exclusive privilege of DD.  By their letter of 26th September, 1994, the ’nodal’ Ministry,  i.e.,  Ministry of  Human  Resources  Development [Department  of Youth Affairs and Sports  addressed  to  all the Ministries and Departments including the MIB called  for the remarks on the letter of the BCCI addressed to the nodal Ministry.   The MIB again wrote to the Sports Department  of the nodal Ministry, opposing grant of Single Window  service to  the BCCI.  On 3rd October, 1994, the VSNL  returned  the advance  which it had received from Ishan TV  for  uplinking facilities.   On  7th October, 1994, this Court  passed  the following order:               "Pending the final disposal of the matters  by               this  interim order confined to  telecast  the               International Cricket Matches to be played  in               India  from October 1994 to December 1994,  we               direct  respondent Nos.  1 and 6 to 9 in  Writ               Petition   No.836/  93  to   grant   forthwith               necessary  permission/sanctions and  uplinking               facilities  for production,  transmission  and               telecasting of the said matches.               We  also direct respondent Nos.2, 3 and  4  in               writ   petition   No.836/93  and   all   other               Government  Agencies not to  obstruct/restrict               in    any   manner   whatsoever    production,               transmission  and  telecasting  of  the   said               matches for the said period by               the  petitioner-applicant only on  the  ground               where the Cricket Matches would be played  and               the  signals  are generated under  the  direct               supervision of the VSNL personnel.               So  far  as the production,  transmission  and               telecasting  of  these  matches  in  India  is               concerned,  the  Doordarshan  shall  have  the               exclusive  right  in  all  respects  for   the               purpose,  and the  petitioner-applicant  shall               not prevent Doordarshan from doing so, and  in               particular  shall  afford all  facilities  for               Doordarshan to do so.               So  far  as  the  placement  of  cameras   are               concerned both petitioner-applicant as well as               Doordarshan  shall  have equal  rights.   This               shall  be  ensured by Shri Sunil  Gavaskar  in               consultation with such technical experts as he               may   deem  necessary  to  consult.    He   is               requested   to   do  so.   As   far   as   the               remuneration  for Shri Sunil Gavaskar and  the               technical    expert   is    concerned,    both               Doordarshan   as  well  as   the   petitioner-               applicant will share the remuneration  equally               which will be fixed by this Court.               As  regards  the  revenue  generated  by   the               advertisement  by  Doordarshan  is  concerned,               Doordarshan will deposit the said amount in  a               separate   account   and   preferably   in   a               nationalised Bank.  The Doordarshan will  have               the exclusive right to advertisement.  All the               IAs are disposed of accordingly". 121.      Since certain disputes arose between  the parties,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 63 of 109  

on 18th October, 1994, this Court had to pass the  following order:               "The   BCCI  will  ensure  that  all   Cricket               Associations and staging Centres shall  extend               every facility to the personnel authorised  by               the  Doordarshan  to enter  into  the  Cricket               Ground   for  production,   transmission   and               telecasting of the               183               matches without any late or hindrance.               The  BCCI  will also ensure that  all  Cricket               Associations  staging  the matches  will  make               available  every  facility  and  render   such               assistance  as may be necessary and sought  by               the  Doordarshan for effective telecasting  of               the  matches  at the  respective  grounds  and               stadia.               The  BCCI shall not permit the ESPN  to  enter               into  any contract either with A.T.N.  or  any               other Agency for telecasting in any manner all               over  India,  whether  through  the  Satellite               footprints or otherwise, Cricket Matches which               are   being   telecast   in   India   by   the               Doordarshan.  If the ESPN has entered into any               such contract either with A.T.N. or any  other               Agency,  that  contract  should  be  cancelled               forthwith.               Since  this  Court is seized  of  the  present               matter,  no  court should entertain  any  writ               petition,   suit  or  application   which   is               connected in any manner with the discharge  of               obligation  imposed on the respective  parties               to the present proceedings.  If any such  writ               petition   suit  or  application  is   already               entertained,  the  Courts should  not  proceed               with  the  same till further  orders  of  this               Court.               The  BCCI  and the Doordarshan  will  mutually               solve  the  problem of the  Control  Room  and               Storage   Room   facilities  needed   by   the               Doordarshan,  preferably  in  one  meeting  La               Bombay on 20th October, 1994". 122. The law on the subject discussed earlier makes it clear that  the  fundamental  right  to  freedom  of  speech   and expression includes the right to communicate effectively and to  as large a population not only in this country but  also abroad, as is feasible.  There are no geographical  barriers on communication.   Hence every citizen has a right to use  the best   means  available  for  the  purpose.    At   present, electronic  media,  viz.,  T.V.  and  radio,  is  the   most effective  means of communication.  The  restrictions  which the  electronic media suffers in addition to those  suffered by  the print media, are that [i] the airwaves are a  public property  and  they have to be used for die benefit  of  the society at large, [ii] the frequencies are limited and [iii] media  is subject to pre-censorship.  The other  limitation, viz.,  the reasonable restrictions imposed by law  made  for the  purposes mentioned in Article 19 [2] is common  to  all the  media.  In the present case, it was not and  cannot  be the  case  of  the NM that the telecasting  of  the  cricket matches  was not for the benefit of the society at large  or not in the public interest and, therefore, not a proper  use of the public property.  It was not the case of the MIB that it  was  in violation of the provisions of Article  19  [2].

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 64 of 109  

There  was  nothing  to  be  pre-censored  on  the   grounds mentioned  in Article 19 [2].  As regards the limitation  of resources, since the DD was prepared to’telecast the cricket matches, but only on its terms it could not plead that there was  no frequency available for telecasting.  The  DD  could also  not have ignored the rights of the viewers  which  the High  Court  was  at pains to emphasise  while  passing  its orders  and  to which we have also made  a  reference.   The CAB/BCCI  being the organisers of the event had a  right  to sell  the  telecasting rights of its event  to  any  agency. Assuming  that  the  DD  had  no  frequency  to  spare   for telecasting the matches, the CAB could certainly enter  into a  contract  with any agency including a foreign  agency  to telecast  the said matches through that  agency’s  frequency for  the viewers in this country [who could have  access  to those frequen- 184 cies] as well as for the viewers abroad.  The orders  passed by  the  High Court in effect gave a right to DD to  be  the host broadcaster for telecasting in this country and for the TWI, for telecasting for the viewers outside this country as well as those viewers in this country who have an access  to the TWI frequency.  The order was eminently in the interests of  the viewers whatever its merits on the other aspects  of the matter. 123.  The orders passed by the High Court have to be  viewed against  the backdrop of the events and the position of  law discussed above.  The circumstances in which the High  Court passed  the orders and the factual and legal  considerations which weighed with it in passing them speak for  themselves. However,  since  the  cricket  matches  have  already   been telecast,  the question of the legality or otherwise of  the orders  has  become  academic and it  is  not  necessary  to pronounce our formal verdict on the same.  Hence we  refrain from doing so. 124.      We, therefore, hold as follows: [i]  The  airwaves  or frequencies are  a  public  property. Their  use  has to be controlled and regulated by  a  public authority in the interests of the public and to prevent  the invasion  of  their  rights.   Since  the  electronic  media involves the use of the airwaves, this factor creates an in- built  restriction  on its use as in the case of  any  other public property. [ii]  The  right  to impart and  receive  information  is  a species of the right of free- the best means of imparting and receiving information and as such  to  have  an access to telecasting  for  the  purpose. However,  this  right to have an access to  telecasting  has limitations  on account of the use of the  public  property, viz.,  the airwaves, involved in the exercise of  the  right and can be controlled and regulated by the public authority. This limitation imposed by the nature of the public property involved  in the use of the electronic media is in  addition to  the  restrictions  imposed on the right  to  freedom  of speech   and  expression  under  Article  19  [2]   of   the Constitution. [iii]  The Central Government shall take immediate steps  to establish an independent autonomous public authority  repre- sentative  of all sections and interests in the  society  to control and regulate the use of the airwaves. [iv] Since the matches have been telecast    pursuant to the impugned order of the High    Court, it is not necessary  to decide the correctness of the said order. [v]  The High Court ’will now apportion between the CAB  and the DD the revenues generated by the advertisements on  T.V.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 65 of 109  

during  the  telecasting of both the series of  the  cricket matches,  viz., the Hero Cup, and the International  Cricket Matches played in India from October to December 1994, after hearing the parties on the subject. 125.      The civil appeals are disposed of accordingly. 126.      In view of the disposal of the civil  appeals, the writ  petition  filed by the Cricket Association  of  Bengal also stands disposed of accordingly. 185 B.P. JEEVAN REDDY, J. 127.      Leave granted in Special Leave Petitions. 128.      While I agree broadly with the conclusions arrived at  by  my  learned  brother Sawant,J. in  Para  24  of  his judgment,  I propose to record my views and  conclusions  on the  issues arising in these matters in view of  their  far- reaching importance. 129.      Cricket  is an interesting game.  Radio, and  more particularly  the  television has made it the  most  popular game  in  India.  It has acquired  tremendous  mass  appeal. Television  has brought the game into the hearths and  homes of  millions of citizens across the country,  enhancing  its appeal  several-fold.   Men, women and children who  had  no interest in the game earlier have now become its ardent fans -  all  because of its broadcast by  radio  and  television. This  has  also  attracted the  attention  of  business  and commerce.  They see an excellent opportunity of  advertising their  products  and wares.  They are prepared to  pay  huge amounts  therefor.   The cricket clubs which  conduct  these cricket matches have come to see an enormous opportunity  of making  money  through  these  matches.   Previously,  their income  depended  mainly  upon the ticket  money.   Now,  it probably does not count at all.  The real income comes  from the  advertisements  both  in-stadia as  well  as  the  spot advertisements over radio and television.  The value of  in- stadia advertisement has increased enormously on account  of its  constant exposure on television during the progress  of the game.  Lured by this huge revenues, organisers of  these events  now  propose to sell the  broadcasting  rights  used compendiously to denote both radio and  television  rights  - of these events  to  the  highest bidder, be he foreign agency or a local one.  They find that Doordarshan  is  not in a position to or willing to  pay  as much  as the foreign agencies are.  Accordingly,  they  have sold these rights to foreign agencies.  But - and here  lies the rub - broadcasting the event, particularly  telecasting, requires  import,  installation  and  operation  of  certain equipment  by  these  foreign agencies  for  which  the  law (Indian Telegraph Act) requires a prior permission - licence -  to  be  granted by Government of  India.   Earlier,  they wanted  uplinking facility too through Videsh Sanchar  Nigam Ltd.,  a  Government  of  India-owned  company.   Now   they suggest, it may not be necessary.  They say, they can uplink directly  from their earth station installed, or parked,  as the case may be, near the playing field to their  designated communication satellite which will beam it back to earth The revolution  in  communications/  information  technology  is throwing up new issues for the courts to decide and this  is one of them. 130.      The  Doordarshan says that all these years it  has been telecasting the cricket events in India and has  helped it  popularise.   So  also is the plea of  All  India  Radio (AIR).   They  are  Government  agencies  -  departments  of Government.   AIR and Doordarshan enjoy a monopoly  in  this country in the matter of broadcasting and telecasting.  They cannot  think of any other agency doing the same job.   They

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 66 of 109  

are  not  prepared  to reconcile  themselves  to  any  other agency, more particularly, a foreign agency being invited to broadcast/  telecast these events and they themselves  being asked  to  negotiate  and purchase these  rights  from  such foreign agencies.  They say, they alone should be allowed to telecast  and broadcast these events; that they  alone  must act as the ’host broadcaster’, which means they alone  shall generate the host broadcasting signal, which the  interested foreign  agencies  can  purchase from them.   They  are,  of course,  not prepared to pay as much amounts as the  foreign agencies.   They  are  seeking  to  keep  away  the  foreign agencies  with the help of the legal provisions in force  in this  country.   If  they  are successful  in  that,  it  is obvious,  they  may  -  they can  -  dictate  terms  to  the organisers of these events.  If they cannot, the  organisers will  be  in a position to dictate their  terms.   But  here again,  there is another practical, technological,  problem. The  foreign agencies do beam their programmes  over  Indian territory  too,  but  for  receiving  these  programmes  you require - period - a dish antenna, which costs quite a  bit. Our  TV  sets cannot receive these  programmes  through  the ordinary  antenna.   Doordarshan alone has the  facility  of telecasting   programmes  which  can  be  received   through ordinary antennae.  Millions in this country, who arc deeply interested  in the game, cannot afford these  dish  antennae but  they  want to watch the game and that can  be  provided only  by  the  Doordarshan.   And  this  is  its  relevance. Doordarshan  says,  if the organisers choose to  sell  their telecasting  rights  to a foreign agency,  they  would  have nothing  to do with the event.  They would not  telecast  it themselves.  If the foreign agencies can telecast them, well and  good  -  they can do so in the  manner  they  can,  but Doordarshan would not touch the event even by a long  barge- pole.   But,  the  Doordarshan  complains,  they  are  being compelled  by the courts to telecast these events in  public interest;  such  orders have been passed in  writ  petitions filed by individuals or groups of individuals purporting  to represent public interest; the 1995 (2) Doordarshan  is  thus made to lose at both ends  -  and  the organisers  are laughing all the way; telecasting  an  event requires good amount of preparation; advertisements have got to be collected well in time; it cannot be done at the  last minute; without advertisements, telecasting an event results in  substantial loss to public exchequer - it  says.   These are the problems which have given rise to these appeals  and writ petitions.  They raise inter alia grave  constitutional questions  touching  the freedom of  speech  and  expression guaranteed by Article 19(1)(a) of the Constitution.  The in- terpretation  of Section 4(1) of the Indian  Telegraph  Act, the right to establish private broadcasting and  telecasting facilities/ stations - in short, the, whole gamut of the law on  broadcasting and telecasting has become involved in  the issues arising herein. FACTUAL CONSPECTUS- 131.      Cricket  Association of Bengal (CAB) organised  an international cricket tournament under the name and style of "Hero  Cup  Tournament"  to commemorate  and  celebrate  its diamond  jubilee celebrations.  Apart from  India,  national teams  of West Indies, South Africa, Sri Lanka and  Zimbabwe to participate though the national team of Pakistan withdrew therefrom   having  agreed  to  participate  in  the   first instance.  The Hero Cup Tournament comprised several one day matches and its attraction was not confined to India but  to all the cricket loving countries which, in effect, means all

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 67 of 109  

the  commonwealth countries.  The tournament was to be  held during the month of November, 1993.  Until 1993, Doordarshan was  acting  as the host broadcaster in respect of  all  the cricket matches played in India.  It 187 generated the ’host broadcaster signal’, which signal  could be assigned or sold to foreign television organisations  for being  broadcast in their countries.  However, an  exception was made by the Government of India - for reasons we do  not know - in respect of an earlier tournament; a foreign agency was  permitted  to  telecast  the  matches  in  addition  to Doordarshan.    This  exception  appears  to  have   set   a precedent.   On  March 15, 1993 the Cricket  Association  of Bengal wrote to Doordarshan asking it to send their detailed offer  which  could  be  any one  of  the  two  alternatives mentioned  in  the letter.  The two  alternatives  mentioned were: "(a) that you (Doordarshan) would create ’host  broad- caster  signal’ and also undertake live telecast of all  the matches  in the tournament or (b) that’any other  party  may create  the  ’host broadcaster signal’ and  you  would  only purchase  the rights to telecast in India." The  Doordarshan was  requested to clearly spell in their offer  the  royalty amount they were willing to pay.  It was further made  clear that  "in  either  case it may also  please  to  noted  that foreign  T.V. rights will be retained by this  association". The letter also suggested the. manner in which and by  which date  the  royalty amount was to be paid to it.   The  offer from Doordarshan was requested to be sent by March 31, 1993. On March 18, 1993 Doordarshan wrote to CAB asking it to send in  writing the amount it expects as rights’ fee payable  to it  for granting exclusive telecasting rights  "without  the Star  T.V.  getting it".  On March 19, 1993,  CAB  wrote  to Doordarshan stating that "we are agreeable to your  creating the Host Broadcaster Signal and also granting you  exclusive rights  for  India without the Star TV getting it.   And  we would charge you US $ 800,000 (US Dollars Eight Hundred Thousand only) for the same.  We ’Will, however, reserve the right  to sell/licence right worldwide, excluding India  and Star  TV.  You would be under an obligation to  provide  the picture  and  commentary,  subject to the  payment  of  your technical fees".  On March 31, 1993 Doordarshan replied back stating that the exclusive rights for India without Star  TV getting it may be granted to Doordarshan at a cost of Rupees one  crore.   Evidently, because no response  was  forthwith coming  from CAB, the Doordarshan sent a reminder on May  4, 1993.   On May 12, 1993, CAB wrote to Doordarshan.  By  this letter, CAB informed Doordarshan that they have now  decided "to sell/allot worldwide TV Rights for the tournament to one party  only,  instead  of  awarding  separate  areawise  and companywise  contracts".  In view of this revised  decision, the  CAB  called upon Doordarshan to let them  know  whether Doordarshan is in the deal and if so to submit its  detailed offer  for  worldwide  TV  rights  by  May  17,  1993.   The Doordarshan was given an option either to purchase TV rights outright or to purchase TV rights on the basis of sharing of rights fee.  Even before receiving this letter of CAB  dated May  12, 1993, Doordarshan addressed a letter to CAB on  May 14,  1993 stating that while Doordarshan is still  committed to  its bid of Rupees one crore, there is  speculation  that Pakistan  may not participate in the tournament which  would adversely affect the viewership and commercials.  In such an eventuality, the Doordarshan said, it will have to  re-think its bid. 132.      On June 18, 1993 Doordarshan sent a fax message to CAB referring to the press reports that CAB has entered into

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 68 of 109  

amendment with Transworld Image (TWI) for the 188 TV  coverage  of the said tournament  and  that,  therefore, Doordarshan  has  decided  not to  telecast  the  tournament matches   organised   by  paying  TWI.    It   stated   that Doordarshan  is not prepared to enter Into  any  negotiation with TWI to obtain TV    rights    for the event. will not 133. Months passed by and then on October    18,  1993,  CAB wrote a detailed letter to Doordarshan.  In this letter, CAB stated that though they were expecting an offer  Doordarshan was  offering only a sum of Rupees one crore and  that  they have  received  offers from agencies  abroad  including  TWI which  were much higher than Rupees two crores and that  too in  foreign exchange.  Since Doordarshan was not  interested in increasing its offer, the letter stated, CAB entered into a  contract with TWI for the telecast of matches.  Even  so, the  letter stated, the CAB is still keen  that  Doordarshan comes forward to telecast the matches since it does not wish to  deprive  800 millions people of this  country  and  that accordingly they have made TWI agree for co-production  with Doordarshan.  It was also stated that Doordarshan should not claim  exclusive rights and the CAB would be at  liberty  to sell the rights to Star TV.  The letter further stated  that the Doordarshan has not been responding to their letters and that meanwhile several foreign TV organisations and networks have been approaching them to telecast their matches to  the Indian   audience.   The  letter  also  referred  to   their information   received   from  some   other   sources   that Doordarshan  is interested in acquiring the rights  of  tele cast provided its allowed produce some matches directly  and that   matches  produced  by  TWI  are  made  available   to Doordarshan  without payment of technical fees.  The  letter indicated the matches which Doordarshan would be allowed  to telecast directly and the matches which TWI was to  telecast directly.   This  offer  was, however,  subject  to  certain conditions  which inter alia included the condition that Doordarshan will  not  pay  access  fee to  CAB  but  shall  allow  four minutes’ advertising  time per hour 9i.e. a total of  twenty eight  minutes  in  seven hours) and that  CAB  will  be  at liberty to sell such time slots to advertisers  and  receive the proceeds therefor by itself. 134.  On October 27, 1993 Doordarshan replied that they  are not interested in the offer made by CAB in its letter  dated October  18, 1993.  They stated that they have never  agreed to any joint production with TWI.  On October 29, 1993,  CAB again  wrote to Doordarshan expressing their regret  at  the decision  of the Doordarshan conveyed in their letter  dated September 27, 1993 and stated.......... purely in  deference to  your  sensitivity about taking a signal  from  TWI,  CAB would  be  quite happy to allow you production of  your  own picture  of matches; you may like to buy rights and  licence from  CAB, at a price to be mutually agreed upon.  We  would also  like  to  clarify that these rights will  be  on  non- exclusive   basis  for  Indian  territory".    Doordarshan’s response  was  requested at the earliest.   On  October  30, 1993,  Doordarshan  confirmed  its  message  sent  that  day expressing  their refusal to pay any access fee to  CAB  and stating  further  that if Doordarshan has  to  telecast  the matches  live, CAB has to pay technical charges/  production fee  at  the  rate of Rupees five lacs per  match  and  that Doordarshan  shall  have  exclusive rights  for  the  signal generated.   There was a further exchange of letters,  which it is unnecessary to refer. 189 135.      While  the  above  correspondence  was  going   on

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 69 of 109  

between  CAB  and Doordarshan, the CAB applied for  and  ob- tained  the following permissions from certain  departments. They are: (a)  On September 2, 1993, the Government of India, Ministry of  Human Resource Development (Department of Youth  Affairs and  Sports)  wrote to CAB stating that  government  has  no objection to the proposed visit of the cricket teams of  the participating  countries in November 1993.   The  government also  expressed its no objection to provide  the  conversion facility  for  guarantee money and prize money  for  foreign players subject to a particular cell’ing. (b)  Videsh  Sanchar  Nigam  Limited  (VSNL)  indicated  its charges  for  providing uplinking facility to  INTELSAT  and accepted the said charges when paid by the CAB/TWI. (c)  On  October 13, 1993 the Government of India,  Ministry of Home Affairs wrote to CAB expressing its no objection  to the  filming  of cricket matches and to the use  of  walkie- talkie  sets in the playground during the matches.  It  also expressed  its no objection in principle to  the  production and technical staff of TWI visiting India. (d)  On    October    20,   1993,    the    Department    of Telecommunications  addressed a letter to the Central  Board of  Excise and Customs expressing its no objection  to  tem- porary  import of electrical production  equipment  required for transmission of the said matches between November  7-27, 1993  subject to the organisers coordinating  with  wireless planning  committee  for frequency clearance and  also  with VSNI. (e)  On   November   2,  1993,  the  Ministry   of   Finance (Department  of Revenue) addressed a letter to Collector  of Customs,  Sahar Airport, Bombay intimating him of the  grant of   exemption  from  duty  for  the  temporary  import   of electrical  equipment  by  TWI,  valued  at  Rs.4.45  crores subject to certain conditions. 136.      Inasmuch  as  no  agreement could  be  arrived  at between  CAB  and Doordarshan, the  Department  of  Telecom- munications  addressed a letter to VSNL on November 3,  1993 (on the eve of the commencement of the matches) to the  fol- lowing  effect:  "Refer to your letter  No.  18IP(TWI)/93-TG dated  13.10.1993 and discussion of Shri V.Babuji with  W.A. on  2.11.1993 regarding uplink facility for  telecasting  by TWI  of  C.A.B.  Jubilee Cricket matches.   You  are  hereby advised  that uplink facilities for this purpose should  NOT repeat  NOT be provided for T.W.I. This has the approval  of Chairman (TC) and Secretary, DoT.  Kindly confirm  receipt." The VSNL accordingly intimated CAB of its inability to grant uplinking  facility  and also returned the  amount  received earlier in that behalf 137.  Faced with the above developments, the CAB  approached the Calcutta High Court by way of a writ petition being Writ Petition  No.F.M.A.T.Nil of 1993 asserting that  inspite  of their  obtaining all permissions including the TV  uplinking facilities  from  VSNL  as contemplated by  the  proviso  to Section  4  of the Indian Telegraph Act, Doordarshan  -  and other   governmental   authorities  at   the   instance   of Doordarshan - are seeking to block and prevent the  telecast of the matches by TWI. 190 The  reliefs  sought  for  in  the  writ  petition  are  the following: (1)A  mandamus commanding Respondents 1, 3 and 4  (Union  of India,  Director General, Information and  Broadcasting  and Director  General,  Doordarshan) and  other  respondents  to ensure uninterrupted and unobstructed telecast and broadcast of  Hero Cup tournament between November 1028, 1993  and  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 70 of 109  

take   all  appropriate  measures  for  such  telecast   and broadcast. (ii)A   mandamus   to  the  respondents   to   provide   all arrangements  and facilities for telecast and  broadcast  of the  Hero  Cup tournament by the appointed agencies  of  the petitioners. (iii)A  mandamus restraining the respondents from-  seizing, tempering  with,  removing  or dealing  with  any  equipment relating  to  transmission  telecast  and broadcast  of  the said tournament; and (iv)Restraining   the   respondents  from   interfering   or disrupting in any manner the live transmission and broadcast of the said tournament by the petitioners and their agents. 138. A learned Single Judge of the Calcutta High Court heard the matter on November 8, 1993.  The learned Judge  directed the matter to come up on the next day with a view to  enable the  Advocate  for the Union of India  to  obtain  necessary instructions in the matter.  At the same time, he granted an interim order of injunction in terms of prayers (i) and  (j) in the writ petition effective till the end of the next day. Prayers (i) and (j) in the writ petition read as follows:               (i)   Interim     order     commanding     the               Respondents, their servants, agents, employees               or   otherwise   to   provide   all   adequate               assistance and cooperation to the  Petitioners               and/or  their  appointed Agency for  free  and               uninterrupted  telecast and broadcast of  HERO               CUP TOURNAMENT between 10th November, 1993 and               28th November, 1993;               (i)   An interim order of injunction restrain-               ing  the Respondents their  servants,  agents,               employees  and  others  from  tempering  with,               removing,   seizing   or  dealing   with   any               equipments  relating to transmission  telecast               and broadcast of HERO CUP TOURNAMENT belonging               to and/or their appointed agency in any manner               whatsoever. 139.  The order made it clear that the said order shall  not prevent  Doordarshan  from  telecasting  any  match  without affecting any arrangement arrived at between CAB and TWI. 140.On  the  next day, i.e., November 9, 1993,  the  learned Single  Judge heard the Advocate for the Union of India  but declined  to vacate the interim order passed by him  on  the previous day.  He further restrained the respondents to  the writ  petition  from interfering with  the  frequency  lines given to the Respondent No.10, i.e., TWI as per request made by  VSNL to SAT in view of the fact that VSNL  had  accepted the  proposal of CAB and TWI and had also received the  fees therefor.   On November 11, 1993, the learned  Judge  passed another order, on the representation of the learned  counsel for the writ petitioners, that the equipment brought by  TWI for   the   purpose  of  production  of   transmission   and telecasting  of  cricket  matches which was  seized  by  the Bombay customs authorities, allegedly under the instructions of the Ministry of Telecommu- 191 nications  and Ministry of Information and Broadcasting,  be released.    The  learned  Judge  directed  that   all   the governmental  authorities including the customs  authorities shall act in accordance with the interim orders dated  8/9th November, 1993.  Meanwhile, it appears, certain  individuals claiming  to  be interested in watching cricket  matches  on television filed independent writ petitions for a  direction to  the  Doordarshan to telecast the matches.   The  learned Judge  expressed  the opinion that by their  internal  fight

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 71 of 109  

between  Respondents 1 to 5 on one hand and Respondent  No.6 (reference  is to the ranking in the writ petition)  on  the other,  millions  of viewers in India are  deprived  of  the pleasure  of  watching the matches on television.   He  then referred  to  the  representation that at  the  instance  of Doordarshan  and  others,  All-India  Radio  (AIR)  too  has stopped   broadcasting  the  matches.   The  learned   Judge observed  that  there  is no reason for AIR  to  do  so  and accordingly directed the Union of India and others including the  Ministry of Information and Broadcasting  to  broadcast the remaining cricket matches on AIR as well. 141.      Aggrieved  by  the orders of  the  learned  Single Judge   aforementioned,  the  Union  of  India   and   other governmental  agencies  filed a writ appeal (along  with  an application  for stay) which came up for orders on  November 12, 1993 before a Division Bench of the Calcutta High Court. It  was  submitted by the learned counsel for the  Union  of India  that  though  the Doordarshan is very  much  keen  to telecast the matches, the CAB has really created problems by entering  into  an agreement with TWI.   He  submitted  that under  Section  4 of the Telegraph Act,  1885,  the  Central Government  has  the exclusive  provilege  of  establishing, maintaining and working telegraph and that the definition of the expression "telegraph" includes telecast.  He  submitted that  neither  CAB  nor TWI have  obtained  any  licence  or permission as contemplated by the proviso to Section 4(1) of the Indian Telegraph Act and, therefore, TWI cannot telecast the  matches  from  any place in  Indian  territory.   After referring  to the rival contentions of the parties  and  the correspondence that passed between them, the Division  Bench observed  that  there  were two dimensions  to  the  problem arising  before  them, viz., (i) the right  to  telecast  by Doordarshan  within India and (2) right of TWI  to  telecast outside  India for viewers outside India.  Having regard  to the urgency of the matter and without going into the  merits of  the rival contentions, and keeping in view the  interest of  millions  of viewers, the Division Bench  observed:  "we record,  as Doordarshan is inclined to telecast the  matches for  the Indian viewers on receipt of Rs.5 lakhs  per  match and  to enjoy the exclusive right of signalling  within  the country being the host broadcaster, we direct the CAB to pay immediately  a sum of Rs.5 lakhs per match for this  purpose and  the collection of revenue on account of sponsorship  or otherwise  in respect of 28 minutes which is  available  for commercial   purpose  be  realised  by  the  Doordarshan  on condition  that  such  amount shall be kept  in  a  separate account and shall not be dealt with and dispose of the  said amount  until further orders" to be passed in the said  writ appeal.    The  Doordarshan  was  accordingly  directed   to immediately  start telecasting the matches.  The Bench  then took up the question whether TWI is entitled to telecast the matches  from  Indian territory.  It noted  that  no  formal order as required under the proviso to Section 4(1) 192 of  the Telegraph Act has been granted in favour  of  either CAB  or TWI.  Purporting to take notice of the national  and international  impact of the issue, the Bench  directed  the 5th appellant before them, viz.., the Secretary, Ministry of Telecommunications,  Government  of India "to  consider  the facts and circumstances of the case clearly suggesting  that there had already been an implied grant of permission, shall grant a provisional permission or licence without  prejudice to the rights and contentions of the parties in this  appeal and  the writ application and subject to the condition  that Respondent  No.6  (5th  appellant in  appeal)  in  the  writ

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 72 of 109  

application  will  be at liberty to impose  such  reasonable terms  and  conditions  consistent  with  the  provision  to Section  4(1) of the Indian Telegraph Act having  regard  to the peculiar facts and circumstances of the case." (emphasis added).   The  Secretary  was directed to  decide  the  said question  within three days from the date of the said  order after hearing all the parties before the Division Bench,  if necessary, 142. On November 14, 1993, the matter was again taken up  by the Division Bench, on being mentioned by the parties.   The first  problem  placed  before the Bench  was  placement  of cameras.   The Doordarshan authorities complained that  they have  not  been  given suitable place  for  the  purpose  of telecasting.   Doordarshan further submitted that there  can only  be one signalling from the field and that in terms  of the orders of the Division Bench, Doordarshan should be  the host  broadcaster  and  TWI  should  take  the  signal  from Doordarshan.   This request was opposed by the CAB and  TWI. The Bench directed that according to their earlier order the TWI is entitled to telecast outside the country and to  send their  signal  accordingly  and in case  the  signalling  is required  to  be  made  by  TWI  separately,  the  necessary permission  should  be given by the  Doordarshan  and  other competent  authorities  therefor.   Regarding  placement  of cameras, certain directions were given. 143. Aggrieved  by  the orders of the Division  Bench  dated 12/14th November, 1993, the Secretary, Ministry of  Informa- tion   and  Broadcasting,  Government  of  India,   Director General,  Doordarshan and Director General, Akashvani  filed two   Special   Leave  Petitions  in   this   court,   viz., S.L.P.(C)Nos.18532-33  of 993. Simultaneously, CAB filed  an independent writ petition in this court under Article 32  of the Constitution being W.P.(C) No.836 of 1993.  The  prayers in  this writ petition are practically the same as  are  the prayers  in  the writ petition filed in  the  Calcutta  High Court.  The additional prayer in this writ petition  related to  release of equipment imported by TWI which was  detained by  customs  authorities at Bombay.  On November  15,  1993, this    court   directed   the   Secretary,   Ministry    of Telecommunications, Government of India to hold the meeting, as directed by the Calcutta High Court, at 4.30P.M. on  that very  day (November 15, 1993) and communicate  the  decision before  7.30P.M.  to  TWI or its counsel or to  CAB  or  its counsel.   The customs authorities were directed to  release the  equipment forthwith.  The TWI was, however,  restrained from  using  the  equipment for telecast  purpose  unless  a licence   is   issued   by  the   Secretary,   Ministry   of Telecommunications in that behalf. 144.      Pursuant  to  the  orders  of  this  court,   Shri N.Vithal,  Chairman, Telecommunications and  Secretary,  DoT passed orders on 193 November  15, 1993 which were brought to the notice of  this court on that very day.  This court stayed the said order to the  extent it imposed a condition that TWI will  get  their signal from Doordarshan for uplinking through VSNL.  The TWI was  permitted  to generate their own  signal  by  focussing their cameras on the ground.  It was observed that the  said order shall not be treated as a precedent in future since it was  made in the particular facts and circumstances of  that case. 145.      The  matches were telecast in accordance with  the directions  given by this court and the High Court  but  the Special  Leave  Petitions  and the  Writ  Petition  remained pending.   While  so, a new development took place  in  1994

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 73 of 109  

which now requires to be mentioned. 146.      In connection with World Cup Matches scheduled for the  year  1996, certain correspondence took  place  between Doordarshan and the Board of Cricket Control, India  (BCCI). While the said correspondence was in progress, each side re- affirming  their  respective stand,  BCCI  arranged  certain international  cricket  matches  to be  played  between  the national teams of India, West Indies and New Zealand  during the months of October-December, 1994.  BCCI entered into  an agreement  with ESPN, a foreign agency, for telecasting  all the cricket matches organised by BCCI in India for the  next five   years  for  a  consideration  of  US   $30   million. Doordarshan  was  totally excluded.  ESPN in  turn  made  an offer  to Doordarshan to purchase the right to telecast  the matches  in  India from ESPN at a  particular  consideration which the Doordarshan declined. 147.      On September 20, 1994, we commenced the hearing of these matters.  While the hearing was in progress, the  BCCI filed  a writ petition, being Writ Petition No.628 of  1994, for   issuance  of  a  writ,  order  or  direction  to   the respondents (Government of India and its various departments and  agencies)  to issue and grant  the  necessary  licences and/or  permissions  in accordance with law to BCCI  or  its appointed  agencies for production, transmission  and  live, telecast of the ensuing international cricket matches to  be played  during the months of October-December, 1994  and  to restrain   the  Doordarshan  and  other   authorities   from interfering   with   or  obstructing  in  any   manner   the transmission, production, uplinking and telecast of the said matches.  This writ petition was occasioned because the  au- thorities  were  said to be not permitting  ESPN  to  either bring in the necessary equipment or to telecast the  matches from  the  Indian  territory.  The said  writ  petition  was withdrawn later and Interlocutory Applications filed by  the BCCI in the pending special leave petition and writ petition seeking  to be impleaded in those matters and for  grant  of reliefs similar to those prayed for in Writ Petition  No.628 of  1994.   Since the hearing was yet to  be  concluded,  we passed certain orders similar to those passed by this  court earlier  - confined, of course, to the matches to be  played during the months of October-December, 1994. CONTENTIONS  URGED BY THE PARTIES AND THE QUESTIONS  ARISING FOR CONSIDERATION. 148.      The  CAB and BCCI have taken a common stand,  were represented  by the same counsel and have also filed  common written  submissions.  It is not possible to  reproduce  all their   contentions   as  put  forward  in   their   written submissions because 194 of the number of pages they run into.  It would suffice if I set out their substance.  The submissions are: (a)  CAB    and   BCCI   are   non-profit-making    sporting organisations  devoted to the promotion of cricket  and  its ideals.  They organise international cricket tournaments and series from time to time which call for not only good amount of  Organisation but substantial expense.  Payments have  to be   made  to  the  members  of  the  teams   participating. Considerable  amount  of  money has to be  expended  on  the training of players and providing infrastructural facilities in  India.  All this requires funds which have to be  raised by  these  organisations  on their  own.   Accordingly,  CAB entered into an agreement with TWI for telecasting the  Hero Cup  Tournament matches to be played in the year 1993.   The necessary  permissions were applied for and granted  by  the Ministries of Home, Defence, Human Resource Development  and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 74 of 109  

Telecommunications.  The Ministry of Telecommunications/VSNL accepted  the monies for the purpose of providing  uplinking facilities, which does amount to implied grant of permission under the proviso to Section 4(1) of the Telegraph Act.   In any  event, the acceptance of the monies made it  obligatory upon  the ministries to grant the said licence.  It is  only on  account of the interference and lobbying by  Doordarshan and Ministry of Information and Broadcasting that the  other ministries  went  back and refused to permit  the  telecast. The   action  of  the  Doordarshan  and  the   Ministry   of Information  and Broadcasting is malafide, unreasonable  and authoritarian besides being illegal. (b)  The  game of cricket provides entertainment to  public. It  Is  a  form of expression and  is,  therefore,  included within  the freedom of speech and expression  guaranteed  by Article  19(1)(a) of the Constitution.  This right  includes the right to telecast and broadcast the matches.  This right belongs  to  the organiser of the matches  which  cannot  be interfered with by anyone.  The organiser is free to  choose such  agency  as it thinks appropriate for  telecasting  and broadcasting  its matches.  The Doordarshan or the  Ministry of   Information  and  Broadcasting  can  claim   no   right whatsoever  to telecast or broadcast the said  matches.   If they  wish to do so, they must negotiate with the  organiser and  obtain  the right.  They have no inherent  right,  much less   a  monopoly,  in  the  matter  of   telecasting   and broadcasting these matches.  It is not their events.  If the organisers, CAB and BCCI herein, choose to entrust the  said rights to a foreign agency, such foreign agency is merely an agency  of the organisers and the mere fact that it  happens to  be  a  foreign agency is no  ground  for  depriving  the organisers,  who  as Indian citizens, are  entitled  to  the fundamental right guaranteed by Article 19(1)(a).  The  said right can be restricted or regulated only by a law made with reference to the grounds mentioned in clause (2) of  Article 19 and on no other ground. (c)  Section 4 of the Indian Telegraph Act   must         be understood  and construed in the light of Article  19(1)(a). So  read and understood, it is only a regulatory  provision. If  a  person  applies  for a  licence  for  telecasting  or broadcasting  his speech and expression - in this  case  the game  of  cricket - the appropriate authority  is  bound  to grant  such  licence unless it can seek refuge under  a  law made in terms of clause (2) of Article 19.  The  appropriate authority cannot also impose such conditions as would 195 nullify or defeat the guaranteed freedom.  The conditions to be imposed should be reasonable and relevant to the grant. (d)  Doordarshan  or  AIR has no monopoly in the  matter  of telecasting/broadcasting.   Radio and television are only  a medium  through  which freedom of speech and  expression  is expressed.   Article 19(2) does not permit any  monopoly  as does clause (6) in the matter of Article 19(1)(g).   Section 4, which contemplates grant of telegraph licences is  itself destructive of the claim of monopoly by Doordarshan/AIR. (e)  Right to disseminate and receive information is a  part of the right guaranteed by Article 19(1)(a).  Televising the cricket  match  is a form of dissemination  of  information. The mere fact that the organisers earn some income from such activity  does not make it anytheless a form of  expression. It  has been held repeatedly by this court in the matter  of freedom  of  press that the mere fact  that  publication  of newspaper has also certain business features is no ground to treat  it as a business proposition and that it  remains  an activity  relatable to Article 19(1)(a).  Business  activity

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 75 of 109  

is  not  the  main  but  only  an  incidental  activity   of CAB/BCCI,. the main activity being promotion of cricket.  It follows  that whenever any citizen of this country seeks  to exercise  this right, all necessary permissions have  to  be granted  by  the appropriate authorities.  The  only  ground upon  which it can be refused is with reference to law  made in  the  interest of one or the other  ground  mentioned  in Article 19(2) and none else. (f)  With the technological advance and the availability  of a  large number of frequencies and channels, being  provided by  the  increasing number of satellites,  the  argument  of limited  frequencies  and/or scarce resource  is  no  longer tenable.   The BCCI does not want allotment of  frequency  - not  even the uplinking facility, since it has the  facility to uplink directly from the earth station to Gorizon-Russian satellite  with which ESPN has an arrangement All  that  the BCCI  wants  is  a  licence/permission  for  importing   and operating  the  station, wherever the match is  played.   In such an eventuality, Doordarshan does not come into  picture at all.  Of course, in connection with Hero Cup matches, the CAB wanted uplinking facility for the reason that it  wanted uplinking to INTELSAT, which is provided only through  VSNL. If an organiser does not want uplinking to INTELSAT, he need not even approach VSNL.  As a matter of fact, major networks in United States have their own satellites. 149. On  the  other hand, the submissions on behalf  of  the Doordarshan and the Ministry of Information and Broadcasting are the following: (i)  The CAB or for that matter BCCI did not even apply  for a licence under the proviso to Section 4(1) nor was such li- cence granted by the appropriate authority at any time or on any occasion.  The grant of permission by other  departments including the collection of fees by VSNL does not amount  to and  cannot take the place of licence under the  proviso  to Section  4(1).   In  the  absence of  such  a  licence,  the CAB/BCCI  or  their  agents  had no  right  to  telecast  or broadcast  the  matches  from  the  Indian  territory.   The argument  of implied permission - or the alternate  argument that  the authorities were bound to grant such permission  - is misconceived, more par-                             196 ticularly,  in the absence of even an application for  grant of licence under Section 4 of the Telegraph Act. (ii) The  Calcutta  High Court was not right in  giving  the directions it did.  Particularly the direction given in  its order dated November 12, 1993 to the Secretary, Ministry  of Telecommunications,  Government  of India, was  contrary  to law.   While directing the Secretary to consider  the  facts and  circumstances  of the case, the  High  Court  expressly opined  that there was already an implied grant  of  permis- sion.   After expressing the said opinion, the direction  to consider  was a mere formality and of  little  significance. The  charge  of malafides and  arbitrary  and  authoritarian conduct  levelled  against Doordarshan and the  Ministry  of Information   and  Broadcasting  is  wholly  unfounded   and unsustainable  in the facts and circumstances of  the  case. In the absence of a licence under Section 4 of the Telegraph Act,  VSNL could not have granted uplinking facility and  it is for that reason that the Department of Telecommunications wrote its letter dated November 3, 1993 to VSNL. (iii)  Realising the lack of coordination among the  various ministries  concerned  in  granting  permission  in  such  a matter,  the  Government of India has since taken  a  policy decision in the meeting of the Committee of Secretaries held on  November 12, 1993.  It has been decided  that  satellite

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 76 of 109  

uplinking  from  the  Indian  soil  should  be  within   the exclusive  competence  of the Ministry  of  Information  and Broadcasting/   Department  of  Space/Department  of   Tele- communications  and  that similarly the telecast  of  sports events  shall  be  within  the  exclusive  purview  of   the Doordarshan/Ministry of Information and Broadcasting who  in turn could market their rights to other par-ties on occasion in  whole or in part.  It has been further decided  that  in respect  of any such event, the organiser shall contact  the specified nodal ministry which in turn will coordinate  with all  other  concerned departments.  In short,  what  may  be called  a ’single window system’ has been evolved  which  is indeed in the interest of organisers of such events. (iv) So far as the contention based upon Article 19(1)(a) is concerned,  the contentions of CAB/BCCI are  misleading  and over-simplistic.   The right guaranteed by Article  19(1)(a) is  not  limited to organisers of such sports  events.   The said right is guaranteed equally to the broadcaster and  the viewers.   Among them, the right of the viewers is the  more important one.  The decisions rendered by this court in  the matter of freedom of press are not strictly relevant in  the matter of broadcast/telecast.  Telecasting a sports event is distinct  from the event itself It is evident that the  CAB/ BCCI are seeking to earn as much as possible by selling  the telecasting  rights.   It  is nothing but  commerce  and  an activity  solely  relatable to Article 19(1)(g) and  not  to Article 19(1)(a).  Inviting bids from all over the world and selling  the  telecast  rights to  the  highest  bidder  has nothing  to  do with Article 19(1)(a).  In  any  event,  the predominant  element in such activity is that  of  business. The  interest  of general public is, therefore,  a  relevant consideration in such matters.  The public interest  demands that foreign agencies should not be freely permitted to come and  set  up  their telecasting facilities in  India  in  an unrestricted  fashion.   The occasion for  inviting  foreign agencies  may  possibly arise only if  Doordarshan  and  AIR refuse to telecast or 197 broadcast  the  event  which  they  have  never  done.   The Doordarshan  was  and  is  always  ready  to  undertake  the telecasting  on reasonable terms but the CAB and  BCCI  were more  interested in deriving maximum profit from the  event. Doordarshan  cannot certainly compete with foreign  agencies who  are  offering more money not merely for  obtaining  the right  to  telecast  these  events but  with  the  real  and ultimate  object  of  gaining  a  foothold  in  the   Indian telecasting  scene.   Through  these  events,  the   foreign telecasting  organisations, particularly ESPN,  are  seeking entry into Indian market and it is for this reason that they are prepared to pay more.  Their interest is something  more than mere commercial. (v)The present situation is that the Doordarshan and AIR has got  all the facilities of telecasting and broadcasting  the events in India.  They have been doing it for over the  last several decades and they have the necessary  infrastructure. The  Doordarshan  is  taking  all  steps  for  updating  its equipment  and  for training its technicians to  handle  the latest  equipment.  It is also entering into  tic,-ups  with certain foreign agencies for the purpose.  They have  always been  prepared for any reasonable terms.   Both  Doordarshan and  AIR are agencies of the State.  Until recently, 97%  of the  telecasts made by Doordarshan did not earn any  income. They  only involved expense.  Its income was derived  mainly from  the  remaining  three  per  cent  of  its   activities including  sports events like cricket.  Recently, there  has

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 77 of 109  

been  a  slight  change in policy but  the  picture  largely remains   the  same.   There  is  nothing  illegitimate   or unreasonable  in Doordarshan seeking to earn some  money  in the matter of telecast of such events. (vi)The  very  nature of television media is  such  that  it necessarily involves the marshaling of the resource for  the greatest  public good.  The state monopoly is created  as  a device  to  use  the resource for public good.   It  is  not violative  of  the  right  of free speech  so  long  as  the paramount interest of the viewers is subserved and access to media is governed by the ’fairness doctrine’.  Section 4  of the Telegraph Act cannot be faulted on any ground.   Indeed, in  none  of  the petitions filed by the  CAB/BCCI  has  the validity of the monopoly of Doordarshan questioned.  If  the argument  of  the  CAB/BCCI  is accepted  it  would  mean  a proliferation   of  television  stations   and   telecasting facilities  by  all and sundry, both domestic  and  foreign, which would not be in the interest of the country.   Indeed, the other side has not placed any material to show that such free grant of licences would serve the public interest. (vii)Section   4  of  the  Telegraph  Act  is  in   no   way inconsistent with the monopoly of Doordarshan/AIR.   Indeed, it  supports  it.  The American  decisions  are  not  really relevant to the Indian context.  The availability of more or unlimited number of frequencies or channels is no ground  to permit  free  and  unrestricted  import,  establishment  and operation  of Radio/Television stations, earth  stations  or other such equipment. 150. In the light of the contentions advanced, the following questions arise for consideration: 1.(a) Whether a licence or permission can be deemed to  have been  granted to CAB under the proviso to Section 4  of  the Indian  Telegraph  Act, 1885 for telecasting  the  Hero  Cup Tournament matches played 198 in November, 1993? (b)  If  it is found that there was no such permission,  was it  open  to the Calcutta High Court to  give  the  impugned directions? (c)  Whether  the  charge  of malafides  and  arbitrary  and authoritarian  conduct  attributed  to  Doordarshan  by  CAB justified? 2.(a)  Whether  organising a cricket match or  other  sports event a form of speech and expression guaranteed by  Article 19(1)(a) of the Constitution? (b)  If  the  question  in clause (a)  is  answered  in  the affirmative,  the further question is whether the  right  to telecast  such  event is also included within the  right  of free speech and expression? (c)  Whether  the organiser of such sports events can  claim the  right to sell the telecasting rights of such events  to such  agency as they think proper and whether they have  the right  to  compel  the government  to  issue  all  requisite permissions,  licences and facilities to enable such  agency to telecast the events from the Indian soil?  Does the right in Article 19(1)(a) take in all such rights? (d)  If  the  organiser  of  sports  does  have  the  rights mentioned in (c), whether the government is not entitled  to impose any conditions thereon except charging technical fees or service charges, as the case may be? 3. Whether the impact of Article 19(1)(a) upon Section 4  of the Telegraph Act is that. whenever a citizen applies for  a licence  under  the  proviso to Section 4(1)  it  should  be granted unless the refusal can be traced to a law within the meaning of Article 19(2)?

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 78 of 109  

4.   Whether the virtual monopoly existing   in  favour   of Doordarshan in the matter of  telecasting  from Indian  soil violative of Article 19(1)(a) of the Constitution?                   ANSWERS TO THE QUESTIONS QUESTION NO. 1: 151.      The facts narrated in Part-II show that neither CAB nor BCCI ever applied for a    licence  under the  first proviso  to  sub-section (1) of Section 4 of  the  Telegraph Act.  The permissions obtained from other departments, viz., from the Ministry of Human Resource, VSNL, Ministry of  Home Affairs, Ministry of Finance or the Central Board of  Excise and  Customs cannot take the place of licence under  Section 4(1).   Indeed,  this fact was recognised  by  the  Division Bench  of  the Calcutta High Court and it is  for  the  said reason  that  it  directed  the  Secretary  to  the  Telecom Department  to  decide  the question  whether  such  licence should  be  granted  to  CAB in  connection  with  Hero  Cup matches.  But while directing the Secretary to consider  the said  question, it chose to make certain observations  which had  the effect of practically foreclosing the issue  before the  Secretary.  The Division Bench observed that  the  Sec- retary  should proceed on the assumption that there  was  an implied  grant  of  permission.  As a matter  of  fact,  the Secretary  was  directed  to grant the licence  in  so  many words,  thus  leaving no discretion in him  to  examine  the matter   in  accordance  with  law.   It  became  an   empty formality.  I am of the opinion that while asking the Secre- tary to decide the issue under proviso to 199 Section  4(1),  his discretion and judgment could  not  have been restricted or forestalled in the above manner.  Be that as  it  may,  in pursuance of the said  directions  and  the directions  of  this Court - the  Secretary  passed  certain orders,  the legality of which has now become  academic  for the reason that both the events, viz., the Hero Cup  matches as  well  as  the  recent  international  matches  (October- December, 1994) are over.  The only thing that remains to be considered is whether the charge of malafides and  arbitrary and authoritarian conducted attributed to the Doordarshan by CAB and BCCI is justified.  Firstly neither the CAB nor  its foreign   agent   had   applied   for   or   obtained    the licence/permission  under  Section  4(1).   The  permissions granted  by  other  departments are no  substitute  for  the licence under the proviso to Section 4(1).  ’Mere is nothing to  show  that  seizure of  imported  equipment  by  customs authorities  was at the instance of Doordarshan; it  appears to  be for non-compliance with the requirements  subject  to which  permission  to import was  granted.   Secondly,  this issue,  in my opinion, cannot be examined in  isolation  but must be judged in the light of the entire relevant  context. The  Doordarshan did enjoy monopoly of telecasting in  India which  is  the  product of and appears to  be  sustained  by Section  4(1) of the Telegraph Act.  There was  no  occasion when  a  foreign agency was allowed into India  without  the consent  of or without reference to Doordarshan to  telecast such events.  All these years, it was Doordarshan which  was telecasting  these  matches.  On one  previous  occasion,  a foreign  agency was allowed but that was by the  Doordarshan itself or at any rate with the consent of and in cooperation with  the  Doordarshan.   It is for  this  reason  that  the Doordarshan  was asserting its exclusive right  to  telecast the  event taking place on Indian soil and was not  prepared to purchase the said right from a foreign agency to whom the CAB  and  BCCI  sold all their rights.   It  is  also  worth noticing  that neither CAB nor BCCI or for that  matter  any

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 79 of 109  

other sports organisation had ever before invited a  foreign agency to telecast or broadcast their events - at any  rate, not without the consent of Doordarshan.  The agreement  with TWI entered into by CAB and the agreement with ESPN  entered into  by the BCCI were unusual and new developments for  all concerned.   Like  the bureaucracy  everywhere,  the  Indian bureaucracy  is  also  perhaps  slow  in  adjusting  to  the emerging realities, more particularly when they see a threat to  their power and authority in such developments.  In  the circumstances, their objection to a foreign agency coming in and telecasting such events without even obtaining a licence under  the  proviso  to Section 4(1) of  the  Telegraph  Act cannot  be  termed  malafide or arbitrary.  So  far  as  the charge  of  authoritarianism  is concerned,  it  is  equally unsustainable for the reason that the CAB/ BCCI had no legal right  nor any justification in insisting  upon  telecasting their events through foreign agencies without even  applying for  and/or  obtaining  a  licence  required  by  law.   The correspondence  between them shows that each was  trying  to get the better of the other; it was like a game of  fencing. In  my  opinion, therefore, the charge of malafides  or  for that  matter,  the  charge  of  arbitrary  or  authoritarian conduct  levelled  against  the  Doordarshan  and/or   other governmental  authorities is unacceptable in the  facts  and circumstances of this case. QUESTION NOS. 2.3 AND 4: 152.      The contentions of Sri Kapil Sibal,                             200 learned   counsel  for  the  BCCI/CAB  have  been  set   out hereinbefore.   What do they really mean and imply?   It  is this:  the game of cricket provides entertainment to  public at  large.  The entertainment is organised and  provided  by the  petitioners.   Providing  entertainment is  a  form  of expression  and, therefore, covered by Article  19(1)(a)  of the  Constitution.  Except in accordance with a law made  in terms  of  clause (2) of Article 19, no restriction  can  be placed thereon.  The organiser of the game has the right  to telecast and broadcast the game.  None can stop it - neither the  Doordarshan  nor  AIR.   The  monopoly  in  favour   of Doordarshan and AIR is inconsistent with Article 19(1)(a) as well as Section 4 of the Telegraph Act.  If Section 4(1)  is construed  as conferring or affirming such monopoly,  it  is void and unconstitutional may fall foul of Article 19(1)(a). The  first  proviso  to Section 4(1) is bad  for  the  added reason  that it or the Act does not furnish any guidance  in the  matter  of exercise of discretion  conferred  upon  the Central Government thereunder.  The organiser of the Same is free  to  choose such agency as he  thinks  appropriate  for telecasting and broadcasting the game - whether domestic  or foreign - and if the organiser asks for a licence under  the proviso  to  Section 4(1) for importing  and  operating  the earth station or other equipment for the purpose, it must be granted.   No conditions can be placed while  granting  such permits  except collection of technical fees.  This in  sub- stance is the contention.  It must be said at once that this may indeed be the first decision in this country, when  such an  argument is being addressed, though such arguments  were raised in certain European courts and the European Court  of Human Rights, with varying results as we shall indicate in a little while. 153.      There may be no difficulty in agreeing that a game of   cricket   like   any  other   sports   event   provides entertainment  -  and entertainment is a facet, a  part,  of free speech. [See Burstyn v. Wilson (96 L.Ed.1098)], subject to the caveat that where speech and conduct are joined in  a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 80 of 109  

single  course  of action, the free speech  values  must  be balanced against competing societal interests. [Los  Angeles v.  Preferred  Communications  (1986 -  476   U.S.488  =  90 L.Ed.2d.480)].  It  attracts  a  large  audience.   But  the question is whether the organiser of the event can say  that his freedom of expression takes in the right to telecast  it from   the   Indian  soil  without   any   restrictions   or regulations.  The argument really means this, I have a right to propagate my expression, viz., the game, by such means as I  think  appropriate,  I may choose to  have  a  television station of my own or I may invite a foreign agency to do the job.   Whatever I wish, the State must provide to enable  me to  propagate my game.  I may make money in the process  but that is  immaterial’. In effect, this is an assertion of  an absolute  and unrestricted right to establish private  radio and  television stations, since there is no  distinction  in principle between having a mobile earth station (which beams its  programmes  to  a satellite via  VSNL  or  directly  to another satellite which in turn beams it back to earth)  and a  stationary  television station.  Similarly, there  is  no distinction in law between a permanent telecasting  facility and a facility for a given occasion.  Question is, is such a stand  acceptable within the framework of our  Constitution? (The question relating to interpretation of Section 4(1),  1 will  deal  with  it separately.) I may clarify  that  I  am concerned  herein  with ’live telecast’ which  requires  the telecast  equipment to be placed at or near the field  where the 201 event is taking place, i.e., telecasting from     the Indian territory.   This clarification is appended in view  of  the contention urged that nothing prevents the organisers - 1 or for  that matter, anybody - from video recording  the  event and  then  take the video cassette out of this  country  and telecast it from outside stations.  Undoubtedly, they can do so.   Only thing is that it will not be a live telecast  and it would also not be a telecast from the Indian soil. 154.      Article 19(1)(a) declares that all citizens  shall have the right of freedom of speech and expression.   Clause (2)  of Article 19, at the same time, provides that  nothing in  sub-clause (1) of clause (1) shall affect the  operation of  any  existing law or prevent the State from  making  any law, insofar as such law imposes reasonable restrictions  on the  exercise of the right conferred by the said  sub-clause in the interests of the sovereignty and integrity of  India, the  security  of  the State, friendly  relations  with  the foreign  States,  public order, decency or  morality  or  in relation  to contempt of court, defamation or incitement  of an offence.  The grounds upon which reasonable  restrictions can be placed upon the freedom of speech and expression  are designed  firstly  to  ensure that the  said  right  is  not exercised  in such a manner as to threaten  the  sovereignty and  integrity  of India, security of  the  State,  friendly relations with the foreign States, public order, decency  or morality.  Similarly, the said right cannot be so  exercised as to amount to contempt of court, defamation or  incitement of  an offence.  Existing laws providing  such  restrictions are  saved  and  the State is free to make  laws  in  future imposing  such  restrictions.   The  grounds  aforesaid  are conceived  in  the  interest  of  ensuring  and  maintaining conditions  in  which  the said right  can  meaningfully  ad peacefully be exercised by the citizens of this country. 155.  The freedom of speech and expression is a right  given to  every citizen of this country and not merely to  a  few. No one can exercise his right of speech in such a manner  as

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 81 of 109  

to  violate another man’s right of speech.  One man’s  right to  speak ends where the other man’s right to speak  begins. Indeed, it may be the duty of the State to ensure that  this right  is available to all in equal measure and that  it  is not  hijacked by a few to the detriment of the  rest.   This obligation  flows  from the preamble  to  our  Constitution, which  seeks  to  secure. to all  its  citizens  liberty  of thought,  expression,  belief and worship.   State  being  a product  of  the Constitution is as much committed  to  this goal  as any citizen of this country.  Indeed, this  obliga- tion also flows from the injunction in Article 14 that  "the State shall not deny to any person equality before the  law" and  the  direction  in Article 38(2) to  the  effect:  "the State,  shall,  in  particular  -  endeavour  to   eliminate inequalities  in status, facilities and  opportunities,  not only   amongst  individuals  but  also  amongst  groups   of people........ Under our Constitutional scheme, the State is not  merely under an obligation to respect  the  fundamental rights guaranteed by Part-III but under an equal  obligation to   ensure  conditions  in  which  those  rights   can   be meaningfully and effectively enjoyed by one and all. 156.The  fundamental significance of this freedom  has  been stressed by this Court In a large number of decisions and it is unnecessary to burden this judgment with those decisions. Freedom   of  speech  and  expression,  it  has  been   held repeatedly, is 202 basic  to  and  indivisible from a  democratic  polity.   It encompasses  freedom of press.  It includes right to  impart and receive information.  The question now in issue is: does it  include  the  freedom to broadcast  and  telecast  one’s views,  ideas and opinions and whether, if one wishes to  do so,  is the State bound to provide all  necessary  licences, permits   and   facilities  therefor?   This   requires   an examination  of the history of broadcasting and  telecasting in this country as well as in certain leading democracies in the  world.  In this judgment, the expression  "broadcasting media"  wherever used denotes the electronic media of  radio and television now operated by AIR and Doordarshan - and not any other radio/TV services INDIA: 157.      Though several countries have enacted laws on  the subject   of  broadcasting,  India  has  not.   The   Indian Telegraph  Act,  enacted in 1885 (as amended  from  time  to time)  is the only enactment relevant in this behalf  Clause (1)  of Section 3 defines the expression "telegraph" in  the following words:               ""Telegraph"  means any appliance,  instrument                             material  or apparatus used or capable of  use               for   transmission   or  reception  of   signs               signals,writing,   images   and   sounds    or               intelligence  of any  nature  by wire,  visual               or  other  electromagnetic  emissions,   Radio               waves or Hertzian waves, galvanic, electric or               magnetic means.               Explanation.-   "Radio  waves"  or   "Hertzian               waves"   means   electromagnetic   waves    of               frequencies  lower than 3,000 giga-cycles  per               second propagated in space without  artificial               guide. 158.  Sub-section (1) of Section 4 which occurs  in  Part-11 entitled  "Privileges and Powers of the Government"  confers the  exclusive  privilege of establishing,  maintaining  and working telegraphs In India upon the Central Government.  At the same time, the first proviso to sub-section empowers the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 82 of 109  

Central  Government  itself  to  grant  a  licence  on  such conditions  and  in  consideration of such  payments  as  it thinks  fit,  to  establish, maintain or  work  a  telegraph within  any  part of India.  Section 4 may be  set  out  for ready reference:               "4.(1)  Within  India the  Central  Government               shall   have   the  exclusive   privilege   of               establishing,               maintaining    and               working telegraphs:               Provided that the Central Government may grant               a   licence,   on  such  conditions   and   in               consideration  of such payments as  it  thinks               fit,  to any person to establish, maintain  or               work a telegraph within any part of India:               Provided  further that the Central  Government               may,   by  rules  made  under  this  Act   and               published  in  the Official  Gazette,  permit,               subject to such restrictions and conditions as               it thinks fit, the establishment,  maintenance               and working-               (a)   of  wireless telegraphs on ships  within               Indian  territorial  waters  and  on  aircraft               within  or above India, or Indian  territorial               waters, and               (b)   of   telegraphs   other   Om    wireless               telegraphs within any part of India.               (2)   The    Central   Government   may,    by               notification in the Official Gazette, delegate               to  the telegraph authority all or any of  its               powers under the first proviso to  sub-section               (1).               The exercise by the telegraph author-               203               ity of any power so delegated shall be subject               to   such  restrictions  and  conditions   the               Central  Government may, by the  notification,               think fit to impose." 159.  The arguments before us have proceeded on the  footing that the radio broadcasting and telecasting fall within  the definition  of  "telegraph", which means that  according  to Section   4,  the  Central  Government  has  the   exclusive privilege and right of establishing, maintaining and working the  radio  and television stations and/or  other  equipment meant for the said purpose.  The power to grant licence to a third  party  for a similar purpose is also  vested  in  the Central  Government itself the monopoly-holder.   The  first proviso  says that the Central Government may grant  such  a licence  and  if  it chooses to grant, it  can  impose  such conditions and stipulate such payments therefor as it thinks fit.   The  section  is absolute in  terms  and  as  rightly pointed out by the petitioners’ counsel, it does not provide any  guidance  in the matter of grant of licence,  viz.,  in which matters the Central Government shall grant the licence and  in which matters refuse.  The provision must,  however, be  understood  in the context of and having regard  to  the times in which it was enacted. 160. In Life Insurance Corporation of India etc. v. Manubhai D.Shah (1992 (3) S.C.C.637), Ahmadl,J. (as the learned Chief Justice  then was) held that the refusal of  Doordarshan  to telecast  a  film "Beyond Genocide" on Bhopal  gas  disaster (which  film was certified by censors and had also  received the Golden Lotus Award) on the ground of lacking moderation, restraint,  fairness  and balance is bad.  The  court  noted that  while the Doordarshan conceded that the film  depicted the  events  faithfully,  it failed to  point  out  in  what

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 83 of 109  

respects it lacked in moderation etc.  Merely because it was critical  of  government, it was  held,  Doordarshan  cannot refuse to telecast it.  It was pointed out pertinently  that the  refusal to telecast was not based upon the ground  that the  list  of award-winning films was long and  that  having regard  to  inter  se  priorities among  them,  it  was  not possible  to  telecast  the film or that the  film  was  not consistent  with the accepted norms evolved by  Doordarshan. In  this  connection, the learned Judge,  speaking  for  the Bench, observed:               "The words "freedom of speech and  expression"               must,  therefore,  be  broadly  construed   to               include  the freedom to circulate one’s  views               by  words  of mouth or in writing  or  through               audio-visual      instrumentalities.       11,               therefore,  includes  the right  to  propagate               one’s views through the print media or through               any other communication channel e.g. The radio               and  the  television.  Every citizen  of  this               free country, therefore, has the right to  air               his  or her views through the printing  and/or               the  electronic  media subject  of  course  to               permissible restrictions imposed under Article               19(2)  of the Constitution.  The print  media,                             public educators, so VItal to the growth of  a               healthy democracy.  Freedom to air one’s views               is the lifeline of any democratic  institution               and  any attempt to stifle, suffocate  or  gag               this  right would sound a death-knell  to  de-               mocracy  and would help usher in autocracy  or               dictatorship.   It  cannot  be  gainsaid  that               modern  communication mediums  advance  public               interest by informing the public of the events               and  developments  that have taken  place  and               thereby   educating   the   voters,   a   role               considered   significant   for   the   vibrant               functioning of a democracy.  Therefore, in any               set-up,  more so in a democratic  set-up  like               ours, dissemi-               204               nation  of  news and views  for  popular  con-               sumption is a must and any attempt to deny the               same  must  be frowned upon  unless  it  falls               within  the mischief of Article 19(2)  of  the               Constitution.   It follows that a citizen  for               propagation of his or her ideas has a right to               publish   for   circulation   his   views   in               periodicals, magazines and journals or through               the  electronic media since it is  well  known               that  these communication channels  are  great               purveyors  of news and views and make  consid-               erable impact on the minds of the readers  and               viewers and are known to mould public  opinion               on vital issues of national importance.   Once               it  is  conceded,  and  it  cannot  indeed  be               disputed,   that   freedom   of   speech   and               expression includes freedom of circulation and               propagation  of ideas, there can be  no  doubt               that  the right extends to the  citizen  being               permitted  to  use  the media  to  answer  the               criticism levelled against the view propagated               by  him.  Every free citizen has an  undoubted               right to lay what sentiments he pleases before               the  public;  to forbid this,  except  to  the               extent permitted by Article 19(2), would be an

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 84 of 109  

             inroad  on  his freedom.  This  freedom  must,               however, be exercised with circumspection  and               care must be taken not to trench on the rights               of  other  citizens or  to  jeopardise  public               interest.  It is manifest from  Article  19(2)               that  the right conferred by Article  19(1)(a)               is   subject  to’  imposition  of   reasonable               restrictions  in  the  interest  of,   amongst               others,  public order, decency or morality  or               in relation to defamation or incitement to  an               offence.   It  is,  therefore,  obvious   that               subject  to  reasonable  restrictions   placed               under  Article 19(2) a citizen has a right  to               publish,  circulate and disseminate his  views               and  any  attempt to thwart or deny  the  same               would offend Article 19(1)(a)."                                          (Emphasis added) 161.  Similarly,  it  was  held  in  Odyssey  Communications Pvt.Ltd.  v.  Lokvidayan Sanghatana & Ors.  (1988  Suppl.(1) S.C.R.486):               "It  can no longer be disputed that the  right               of   a  citizen  to  exhibit  films   on   the               Doordarshan  subject  to the  terms  and  con-               ditions to be imposed by the Doordarshan is  a               part  of the fundamental right of  freedom  of               expression  guaranteed under Article  19(1)(a)               of  the  Constitution of India  which  can  be               curtailed  only under circumstances which  are               set  out  in clause (2) of Article 19  of  the               Constitution  of India.  The right is  similar               to the right of a citizen to publish his views               through  any other media such  as  newspapers,               magazines,  advertisement boardings etc.  sub-               ject to the terms and conditions of the owners               of  the media.  We hasten to add that what  we               have  observed  here  does  not  mean  that  a               citizen has a fundamental right to establish a               private  broadcasting station,  or  television               centre.   On  this question,  we  reserve  our               opinion.    It  has  to  be  decided   in   an               appropriate case." The-   Court  held  that  since  the  Union  of  India   and Doordarshan have failed to produce any material to show that "the exhibition of the serial was prima facie prejudicial to community", the refusal cannot be sustained. 162.  Be that as it may, by virtue of Section 4,  radio  and television   have  remained  a  monopoly  of   the   Central Government  Though in the year 1990, Parliament enacted  the ’Prasar  Bharati  (Broadcasting Corporation of  India)  Act, 1990,  it  never came into force because  the  Central  Gov- ernment  did not choose to issue a  notification  appointing the  date  (from  which the Act shall come  into  force)  as contemplated by Section 1(3) of the said Act.  Be that as it may, Government monopoly over broadcasting media is  nothing unusual and it is 205 not  solely  because  of  the fact that  India  was  not  an independent country, or a democracy, until 1947-50.  Even in well-established  democracies,  the position  has  been  the same, to start with, as would be evident from a brief resume of the broadcasting history in those countries which we  may now proceed to examine.  It would help us understand how the freedom  of speech and expression is understood  in  various democracies with reference to and in the context of right to broadcast  and  telecast - compendiously referred  to  here-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 85 of 109  

inafter as broadcasting. Broadcasting Law in other Countries: 163.      The history of broadcasting in United   States and other  European  countries  has  been  basically  different, perhaps because of historical factors besides constitutional principles.   In  the United States,  courts  have  regarded freedom  of speech almost entirely as a liberty against  the State, while the constitutional courts in Europe have looked upon it as a value which may sometimes compel the government to  act to ensure the right.  Constitutions of most  of  the countries  in western Europe, e.g Germany, Italy and  France are of post World War-II vintage whereas the First Amendment to  the  United States Constitution is more than  200  years old.  These modem European Constitutions cast an  obligation upon  their governments to promote broadcasting freedom  and not  merely  to  refrain  from  interfering  with  it.   The Constitution  of  Germany expressly refers to the  right  to broadcast  as part of freedom of speech and expression.   So far  as  the United Kingdom is  concerned,  the  development there  has to be understood in the context of  its  peculiar constitutional history coupled with the fact that it has  no written  constitution.   Even  so, freedom  of  thought  and expression  has been an abiding faith with that nation.   It has  been a refuge for non-conformists and radical  thinkers all  over the world - a fact, which does not beg  any  proof And yet broadcasting in all these countries was a State or a public  monopoly to start with.  Only much later have  these countries  started licensing private broadcasting  stations. The  main catalyst for this development has been Article  10 of the European Convention on Human Rights which  guarantees freedom  of  expression to all the citizens  of  the  member countries  and refers specifically to radio and  television. It says:               "10(1)  Everyone has the right to  freedom  of               expression.  This right shall include  freedom               to  hold  opinions and to receive  and  import               information and ideas without interference  by               public authority and regardless of  frontiers.               This  Article  shall not prevent  States  from               requiring   the  licensing  of   broadcasting,               television or cinema enterprises.               (2)The  exercise of these freedoms,  since  it               carries  with it duties and  responsibilities,               may   be   subject   to   such    formalities,               conditions,  restrictions or penalties as  are               prescribed  by  law  and are  necessary  in  a               democratic  society, in the interests  of  na-               tional security, territorial integrity or pub-               lic safety, for the prevention of disorder  or               crime, for the protection of health or morals,               for the protection of the reputation or rights               of  others, for preventing the  disclosure  of               information  received  in confidence,  or  for               maintaining the authority and impartiality  of               the judiciary."                                      (Emphasis added)               More about this provision later. 164.  In the United States, of course, radio and  television have been operated by 206 private  undertakings from the very beginning.   As  pointed out   by  the  United  States  Supreme  Court  in   Columbia Broadcasting System v. Democratic National Committee [(1973) 412  U.S.94 - 36 L.Ed.2d.772], at the advent of  the  radio, the  government  had a choice either to opt  for  government

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 86 of 109  

monopoly or government control and that it chose the latter. The  role of the government has been described as one of  an overseer"  and that of the licensee as a  "public  trustee". The  position  obtaining in each country may  now  be  noted briefly. UNITED KINGDOM*: 165.  The first licence to operate eight radio stations  was granted  to British Broadcasting Company (BBC) in 1922.   In 1927,  British Broadcasting Company was replaced by  British Broadcasting Corporation.  The Sykes Committee, appointed in 1920s,  considered  the  overall  state  control  of   radio essential  in  view of its influence on public  opinion  but rejected  operation of the medium by the State.   The  other committee appointed in 1920s, viz., Crawford Committee, also recommended  that radio should remain a public  monopoly  in contra-distinction to the United States system of ’free  and uncontrolled  transmission’.  It, however, recommended  that the government company should be reorganised as a commission either under               *This  part of the judgment dealing  with  the               broadcasting  law obtaining in United  Kingdom               and other European countries is drawn  largely               from the Book "Broadcasting Law A  Comparative               Study" (1993 Edition) by Eric Barendt, Goodman               Professor  of Media Law,  University  College,               London  and his article "The influence of  the               German  and Italian Constitutional  courts  on               their    National    Broadcasting    systems",               published in ’Public Law, Spring 1991’. a  statute or as a public company limited by guarantee.   In 1927, a Royal Charter was granted with a view to ensure  the independence  of  BBC, which charter has been  renewed  from time to time.  It prohibits the BBC from expressing its  own opinion  on  current political and social  issues  and  from receiving   revenue   from   advertisement   or   commercial sponsorship.   The power to give directions is  reserved  to the  government.  In 1935, the Corporation was  licensed  by the  Post-Master  General  to provide  a  public  television service,  which was introduced in the following  year.   The monopoly  of  BBC continued till 1954.  In  that  year,  the British  Parliament  enacted the Television  Act,  1954  es- tablishing  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  adver- tising,  rejected  the idea but  advocated  deregulation  of radio and television.  The government accepted the  proposal and,  accordingly, the Parliament enacted  the  Broadcasting Act, 1990.  Section 1 established the Independent Television Commission  (ITC)  with effect from January 1, 1991  in  the place  of  IBA and the Cable Authority.  The ITC  is  vested with the power to licence and regulate non-BBC 207 television  services  including  Channels 3 and  4  and  the proposed  Channel  5 besides cable and  satellite  services. Section  2 requires that the ITC discharge its functions  in the  manner it considers best to ensure a wide range  of  TV programme  services and also to ensure that  the  programmes are  of  high quality and cater to a variety of  tastes  and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 87 of 109  

interests.  In 1991, ITV decided to grant 16 new channels  3 licences to private bodies with effect from January 1, 1993. The  allocation was to be made by calling for tenders -  the highest  bidder  getting  it - subject, of  course,  to  the bidder satisfying the qualifying criteria.  The  eligibility criteria prescribed guards against granting licences to non- EEC  nationals, political bodies, religious bodies  and  ad- vertising agencies.  It also guards against concentration of these  licences in the hands of few individuals  or  bodies. Sections  6  and 7 impose strict programme controls  on  the licencees   while   Sections   8   and   9   regulate    the advertisements.   The programme controls  include  political impartiality,  eschewing of excessive violence,  due  regard for  decency  and good taste among others.   The  programmes should not also offend religious feelings of any  community. Section  10  provides for government control  over  licenced services.  Section 11 provides for monitoring by ITC of  the programmes  broadcast by licenced services.  It  is  obvious that  this Act has no application to BBC, which is  governed by  the Royal Charter, as stated hereinabove.  The  Act  has also set up a Radio Authority to exercise comparable  powers over  radio services.  It is said that this  Act  ultimately imposed as many restraints on broadcasters freedom as  there were in force earlier.                           FRANCE: 167. Para II of the Declaration of the Rights of Man adopted by  the National Assembly in 1789** - affirmed in  the  pre- amble  to the Constitution of the Fifth Republic (1958)  and treated as binding on all branches of the government - guar- antees  freedom  of dissemination of  thought  and  opinion. This  provision - the child of the French Revolution  -  has greatly  influenced the development of broadcasting  freedom in  that  country.   Initially,  licences  were  granted  to private  radio  stations to function along side  the  public network  but  with  the out-break of the  WorldWar  11,  the licences  of private broadcasters were suspended  and  later revoked.   From 1945 to 1982, broadcasting remained a  State monopoly.   The government exercised tight control over  the radio.   An  ordinance issued in 1959  legalised  government control.   In 1964, public monopoly was re-affirmed by  law. In   1974,   the   State   Organisation,   Office   de    la radiodiffusion-television Francaise (ORTF) was divided  into seven separate institutions catering to radio and television broadcasts in the country.  This was done with a               **Para  11 reads: "XI.  The unrestrained  com-               munication of thoughts and opinions being  one               of  the  most precious rights  of  man,  every               citizen  may speak, write and publish  freely,               provided  he is responsible for the  abuse  of               this liberty in cases determined by law.  " At               the same time, Para 4 sets out the  limitation               implicit  in  all freedoms  comprised  in  the               concept    of    political    liberty.      It               says:  .......  The exercise  of  the  natural               rights  of every man has no other limits  than               those  which are necessary to secure to  every               other  man  the  free  exercise  of  the  same               rights; and these limits are determinable only               by the law."                                    208 view  to introduce competition among the  public  television companies.  The government exercised a significant degree of control  over all these units.  No private broadcasting  was allowed   since  broadcasting  services  were  regarded   as essentially  public.  The State monopoly in  the  matter  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 88 of 109  

broadcasting   was   upheld   by   Conseil   constitutionnel (Constitutional  Court)  in  1978.   In  1982,  however,   a significant  change  took place.  The State  recognised  the right of citizens to have a "free and pluralist broadcasting system".   Even  so,  permission  to  institute  a   private broadcasting station was dependent on prior authorization of the  government.  This provision was upheld by  the  Conseil Constitutionnel   as   compatible  with  Para  11   of   the Declaration  of  the  Rights of Man, In 1985,  the  law  was amended  providing for private broadcasting  and  television stations.   In 1986, the government sought to privatise  one of the public television channels which immediately provoked controversy.   The Conseil constitutionnel ruled  (in  1986) that principle of pluralism of sources of opinion was one of constitutional  significance,  against  which  the  concrete provisions of the proposed Bill must be assessed II observed that access to a variety of views was necessary for the  ef- fective guarantee of the freedom of speech protected by  the Declaration  of  the Rights of man.  At the  same  time,  it found  nothing  wrong with the decision  to  favour  private television  but  held  that it was  for  the  Parliament  to determine the appropriate structure for broadcasting in  the light  of  freedom  of  communication  and  other   relevant constitutional  values, like public order, rights  of  other citizens and pluralism of opinion.  The law was  accordingly amended.   Wherever  private broadcasting is allowed  it  is governed  by  a  contract  between  the  applicant  and  the administrative authority. GERMANY. 168.  After  the occupying authorities  withdrew  from  West Germany  in 1949, the pattern that emerged was one  of  nine regional  public  broadcasting organisations.   They  formed into an association, the Arbeitsgemeinschaft der offentlich- techtlichen     Rundfunkanstalten    der     Bundersrepublik Deutschland (ARD), in 1950 and under its auspices the  first public  television  channel was formed.  Article  5  of  the Basic Law of 1949 states, "(E)very one shall have the  right freely  to  express and disseminate his opinion  by  speech, writing,  and  pictures and freely to  inform  himself  from generally  accessible  sources.  Freedom of  the  press  and freedom  of reporting by means of broadcasts and  films  are guaranteed.   There shall be no censorship." In  a  decision rendered  in  1961, the Federal  Constitutional  Court  held inter  alia that in view of the shortage of frequencies  and the heavy cost involved in establishing a TV station, public broadcasting  monopoly is justifiable, though not  constitu- tionally  mandatory.   It held  further  that  broadcasting, whether public or private, should not be dominated by  State or  by  commercial  forces  and  should  be  open  for   the transmission of a wide variety of opinion. [(12 BVerfGE 205- 196)].   There was a long battle before  private  commercial broadcasting  was  introduced.  Many of the States  in  West Germany  were  opposed to private  commercial  broadcasting. The Constitutional Court ruled in 1981 The Third  Television Case  - 57 BVer EfG 295) that private broadcasting  was  not inconsistent with Article 5 of the Basic Law but it observed that unlike the press, private  209 broadcasting  should  not be left to market  forces  in  the interest  of  ensuring that a wide variety of  voices  enjoy access to it.  It recognised that the regulation of  private broadcasting can be different in content from the regulation applying to public broadcasting.  In course of time, private television   companies  came  into  existence  but  in   the beginning  they  were  confined to  cable.   In  the  Fourth

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 89 of 109  

Television Case decided in 1986 (73 BVerfGE 118), the  court held  in  the present circumstances,  the  principal  public service functions of broadcastings are the responsibility of the public institutions whereas private broadcasters may  be subjected  to  less onerous  programme  restrictions.   Only after the decision of the Constitutional Court in 1987  were the private companies allocated terrestrial frequencies.  It appears  that notwithstanding the establishment  of  private companies  , it is the public broadcasting  companies  which dominate  the scene and attract more advertisement  revenue. The  German  constitutional  court  has  exercised  enormous influence  in shaping the contours of broadcasting law.   It has interpreted the broadcasting freedom in a manner  wholly different  from the United States Supreme Court  casting  an obligation upon the State to act to ensure the right to  all citizens. ITALY: 169. In Italy too, the broadcasting was under State control, to  start with.  In 1944, Radio audizioni Italia  (RAI)  was created  having a monopoly in broadcasting.  It still  holds the  concession for public radio and broadcasting.   Article 21(1)  of  the  Italian  Constitution,  1947  provides  that "(E)veryone   has  the  right  to  express  himself   freely verbally,  in  writing,  and  by  any  other  means".   This provision was relied upon by potential private  broadcasters in support of their claim for setting up private  commercial stations.   In a decision rendered in 1960  (Decision  59/60 (1960)     Giurisprudenza    Constituzionale    759)     the Constitutional  Court  of Italy upheld RAI’s  monopoly  with reference  to Article 43 of the Constitution  which  enables legislation  to  reserve  (or expropriate  subject  to  com- pensation)  for  the state, businesses which  are  concerned with  vital  public service or are  natural  monopolies  and which  are  of pre-eminent public interest.  It  denied  the right of applicants to establish private radio or television stations.   it-opined   that  private   broadcasting   would inevitably   be  dominated  by  a  few   corporations   and, therefore,  not  in  public interest, an  aspect  which  was reaffirmed  in a decision in 1974. (Decision  225/74  (1974) Giurisprudenza   Constituzionale   1775).   It   held   that broadcasting  provides an essential service in a  democratic society  and  could legitimately be reserved  for  a  public institution,  provided  certain  conditions  were  met.   In particular, it said that radio and television should be  put under  parliamentary,  and not executive control  to  ensure their  independence  and that rules should be  drawn  up  to guarantee  the  access of significant political  and  social groups.   Accordingly, the Parliament enacted the  Legge  in April,  1975  which  provided for a  greater  control  by  a Parliamentary  Commission  over  the  programmes  and  their content.  In 1976, the Constitutional Court ruled  (Decision 202/76  (1976)  Giurisprudenza  Constituzionale  1276)  that while  at the national level, the monopoly of RAI is  valid, at  the  local level, it is not, since at  the  local  level there  is  no danger of private  monopolies  or  oligopolies emerging a hope belied by subsequent developments. 210 This ambiguous decision resulted in establishment of a large number  of private radio stations in  Italy  notwithstanding the re-affirmation of RAI’s national monopoly in 1981 by the court.   One  of  the major rather  the  largest  -  private television and radio networks which thus came into existence is  the $7 billion Fininvest Company, controlled  by  Silvio Berlusconi (the Ex-Prime Minister of Italy, who resigned  in December, 1994).  It owns three major TV networks in  Italy.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 90 of 109  

This development prompted the Constitutional Court, in 1988, to call for a prompt and comprehensive regulation of private broadcasting containing adequate anti-trust and other  anti- monopolistic    provisions    to    safeguard     pluralism. Accordingly,  a law was made in 1990 which devised a  system for licensing private radio and television stations. AUSTRIA: 170.  Broadcasting  has  been a State  monopoly  in  Austria throughout.   This monopoly was challenged -as  inconsistent with  Article  IO  of the  European  Convention  before  the Austrian Constitutional Court which repelled the attack with reference  to  clause  (2)  of Article  10.   It  held  that inasmuch  as a law made by the State,  viz.,  Constitutional Broadcasting  Law had introduced a licencing  system  within the  meaning  of the last sentence in Article 10(1)  of  the Convention and since the said system was intended to  secure objectivity  and diversity of opinions, no further  need  be done.   It held that the Austrian  Broadcasting  Corporation with the status of an autonomous public law corporation is a sufficient  compliance not only with the national  laws  but also  with  Article 10 of the Convention and  that  granting licence  to every applicant would defear the  objectives  of pluralism,   diversity  of  views  and  range  of   opinions underlying  the said Austrian law.  Several individuals  and organisations,  who were refused television/radio  licences, lodged complaints with the European Human Rights Commission, which  referred the matter for the opinion of  the  European Human  Rights Court [EHRC] (at Strasbourg).  The court  held that  the refusal to consider the applications  for  licence amounted  to a violation of Article  10  (Informationsverein Lentia & Ors. v. Austria - 15 Human Rights law Journal 31  - judgment  dated 24th November, 1993).  The reasoning of  the Court  is  to be found in paragraphs 38 and  39  which  read thus:               "38.   The Court has frequently  stressed  the               fundamental role of freedom of expression in a               democratic   society,  in  particular   where,               through   the  press,  it  serves  to   impart               information  and  ideas of  general  interest,               which  the  public  is  moreover  entitled  to               receive  (see, for example, mutatis  mutandis,               the  Observer  and  Guardian  v.  the   United               Kingdom judgment of 26 November 1991, Series A               no.216,  pp. 29-30, $59 - 13 HRLJ 16  (1992)).               Such  an  undertaking cannot  be  successfully               accomplished  unless  it is  grounded  in  the               principle of pluralism, of which the State  is               the  ultimate guarantor.  This observation  is               especially  valid in relation to  audio-visual               media,  whose programmes are  often  broadcast               very widely.                39.  0 ’all the means of ensuring that  these               values are respected, a public monopoly is the               one which imposes the greatest restrictions on               the  freedom of expression, namely  the  total               impossibility  of broadcasting otherwise  than               through a national station and, in some cases,               to a very limited extent through a local cable               station.  The far reaching character of such               211               restrictions  means  that  they  can  only  be               justified where they correspond to a  pressing               need.               As  a  result of the technical  progress  made               over the last decades, justification of  these

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 91 of 109  

             restrictions  can no longer today be found  in               considerations  relating  to  the  number   of               frequencies   and  channels   available;   the               Government  accepted this.  Secondly, for  the               purposes  of the present case they  have  lost               much  of  their raison d’etre in view  of  the               multiplication of foreign programmes aimed  at               Austrian  audiences  and the decision  of  the               Administrative   Court   to   recognise    the               lawfulness  of their retransmission  by  cable               (see  paragraph 21 above).  Finally and  above               all,  it  cannot be argued that there  are  no               equivalent  less restrictive solutions; it  is               sufficient  by  way  of example  to  cite  the               practice  of  certain countries  which  either               issue licences subject to specified conditions               of  variable  content or  make  provision  for               forms  of  private participation  in  the  ac-               tivities of the national corporation." The Court then dealt with the argument that "Austrian market was too small to sustain a sufficient number of stations  to avoid  regroupings  and  the  constitution  of  the  private monopolies" and rejected it in the following words:               "42.   The  court  is  not  persuaded  by  the               Government’s  argument.  Their assertions  are               contradicted  by  the  experience  of  several               European  States,  of  a  comparable  size  of               Austria,  in which the coexistence of  private               and public stations, according to rules  which               vary  from country to country and  accompanied               by  measures  preventing  the  development  of               private monopolies, shows the fears  expressed               to be groundless."               171.  The Court finally concluded;               "43.  In short, like the Commission, the Court               considers that the interferences in issue were               disproportionate to the aim pursued and  were,               accordingly,  not  necessary in  a  democratic               society.  There has therefore been a violation               of Article IO." 172.  In our opinion, the reasoning of EHRC is  unacceptable for  various  reasons which we shall set out at  the  proper stage. OTHER WESTERN EUROPEAN COUNTRIES. 173.  In  Denmark,  private broadcasting  was  permitted  by Legislation   enacted   in  1985.   In   Portugal,   private broadcasting  was  allowed  only in 1989,  by  amending  the Constitution.  In Switzerland too, private broadcasting  has been  allowed  only  recently.   Private  broadcasting   is, however, subject to strict programme control. UNITED STATES OF AMERICA: 174.      In the United States, there was no law  regulating the establishment and working of broadcasting companies till 1927.  In that year, Radio Act, 1927 was enacted by Congress creating  the  Federal Radio Commission  with  authority  to grant  three year licences to operate radio stations  on  an assigned frequency.  In the year 1934, the Congress  enacted the  Federal Communications Act.  This Act placed the  tele- phone 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  ap- plications. The only guideline issued to the Commission  was that it should exercise its powers keeping in view the "pub-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 92 of 109  

212 lic interest, convenience and necessity".. It is under these guidelines  that  the FCC evolved the Fairness  Doctrine  in 1949.   Notwithstanding  the  First  Amendment,  the  United States Supreme Court held that the freedom of speech did not entail  a  right to broadcast without a licence.   It  held: "unlike  other modes of expression, radio inherently is  not available  to all" vide N.B.C. v. U.S. [319 US 190  (1943)]. The  Fairness Doctrine was approved by the Supreme Court  in Red Lion Broadcasting Company v. F.C.C. [395 US 367 (1969)]. The  Court  observed: "Although broadcasting  is  clearly  a medium  affected by a First Amendment interest,  differences in the characteristics of news media justify differences  in the  First Amendment standards applied to them  Where  there are  substantially  more individuals who want  to  broadcast than there are frequencies to allocate, it is idle lo  posit an  unbridgeable  First Amendment right  to  broadcast  com- parable to the right of every individual to speak, write  or publish  ...  those who are licenced stand  no  better  than those  to  whom  licences  are  refused  A  license  permits broadcasting,  but the licensee has no constitutional  right to be the one who holds the license or to monopolize a radio frequency  to the exclusion of his fellow citizens ....  The people  as a whole retain their interest in free  speech  by radio and their collective right to have the medium function consistently  with  the  ends  and  purposes  of  the  First Amendment.   It is the right of the viewers  and  listeners, not the right of the broadcasters which is paramount.  It is the  right  of  the public to  receive  suitable  access  to social, political, esthetic moral and other ideas and  expe- riences   which   is  crucial  here   In   1967’70,   public broadcasting was established on a national basis through the institution  of  the  Corporation  for  Public  Broadcasting (CPB),  viz.,  the  Public Broadcasting  Service  (PBS)  for television and National radio service.  The CPB is funded by appropriations  made by the Congress.  In 1978, the  Supreme Court  affirmed in FCC. v. National Citizens  Committee  for Broadcasting (436 U.S.775) that:               "in  making [its] licensing decisions  between               competing applicants, the Commission has  long               given      "primary      significance"      to               "diversification  of control of the  media  of               mass    communications."   This   policy    is               consistent with the statutory scheme and  with               the  First  Amendment goal of  achieving  "the               widest  possible dissemination of  information               from diverse and antagonistic sources."*** Pe-               titioners  argue that the regulations are  in-               valid  because  they  seriously  restrict  the               opportunities  for expression of  both  broad-               casters  and newspapers.  But as we stated  in               Red  Lion, "to deny a station licence  because               ’the  public interest’ requires it ’is  not  a               denial of free speech’." The regulations are a               reasonable  means  of  promoting  the   public               interest  in diversified mass  communications;               thus  they do not violate the First  Amendment               rights  of those who will be denied  broadcast               licenses pursuant to them. 175. It is significant to notice the statement that "to deny a station licence because ’the public interest’ requires  it ’is  not a denial of free speech"’ - a holding to  which  we shall  have  occasion  to  advert  to  later.   Yet  another relevant  observation  of Burger,C.J. is  to  the  following effect:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 93 of 109  

             *** As far back as 1948, the Court held in  US               v.  Paramount Pictures (92 L. Ed. 126 1)  that               no monopoly can be countenanced in the  matter               of First Amendment rights.               213               "The  Commission  (F.C.C.)  was  justified  in               concluding   that  the  public   interest   in               providing access lo market place of "ideas and               expressions  " would scarcely be served  by  a               system  so heavily weighted in favour  of  the               financially  affluent or those with access  to               wealth........                                             (Emphasis added) 176. In  1970s,  however,  it was  argued  that  programming restraints  were  contrary to the  First  Amendment  besides being  unproductive. and that broadcasting licencees  should enjoy  the same rights as newspaper editors and owners.   In course of time. the government moved towards deregulation of broadcasting  and ultimately in 1987 the  Fairness  doctrine was repealed by FCC.  An attempt by Congress to restore  the said rule by an enactment was vetoed by the President. 177. Having  examined  the systems obtaining in  the  United States and major west European countries, Eric Barendt says:               "These  developments  illustrate  the   widely               divergent    approaches    to     broadcasting                             regulation  in the United States and (for  the               most  part)  in  Europe.  This  is  partly  an               aspect  of  the  more  sceptical  attitude  to               government  and to  administrative  regulation               which  has prevailed in the USA, at any  rate.               in the last twenty years.  The First Amendment               has   been   interpreted  as   conferring   on               broadcasters  rights,  which  have  not   been               derived  from  the  comparable  provisions  in               continental countries.  Another explanation is               that    in   the   USA   private    commercial               broadcasting  enjoyed  for a long  time  a  de               facto  monopoly,  while  in  Britain,  France,               Germany and Italy there was a public monopoly.               It  is  interesting  that  there  has  been  a               continuity  to  US  broadcasting  law,   which               (perhaps sadly) is not found in these European               jurisdictions.  The Federal Communications               Act has remained in force since its passage in               1934, though it has been amended on a  handful               of occasions."               (Eric Barendt: Broadcasting Law - Page31) 178. We may now proceed to examine what does   "Broadcasting freedom" mean and   signify? BROADCASTING FREEDOM Meaning and content of. 179. There  is  little doubt that  broadcasting  freedom  is implicit  in  the  freedom of speech  and  expression.   The European Court of Human Rights also has taken the view  that broadcasting  like  press is covered by Article  10  of  the Convention guaranteeing the right to freedom of  expression. But  the  question is what does broadcasting  freedom  mean? Broadly  speaking, broadcasting freedom can be said to  have four facets, (a) freedom of the broadcaster, (b) freedom  of the listeners/viewers to a variety of view and plurality  of opinion, (c) right of the citizens and groups of citizens to have access to the broadcasting media, and (d) the right  to establish private radio/TV stations.  We shall examine  them under separate heads. (a)  FREEDOM OF THE BROADCASTER: 180. The first facet of the broadcasting freedom is  freedom

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 94 of 109  

from  State or Governmental control, in particular from  the censorship by the Government.  As the Peacock Committee  put it,  pre-publication  censorship  has no  place  in  a  free society.   Pre-publication censorship is prohibited in  Ger- many by Article 5 of the Basic Law.  This principle  applies in  equal measure both to public and  private  broadcasting. It is, however, necessary to clarify here that public 214 broadcasting  is not to be equated with State  broadcasting. Both are distinct.  Broadcasting freedom in the case of pub- lic broadcasting means the composition of these bodies in  a manner so as to genuinely guarantee their independence.   In Germany,  the  Constitutional Court has ruled  that  freedom from  State control requires the legislature to  frame  some basic rules to ensure that Government is unable to  exercise any  influence over the selection, content or scheduling  of programmes.   Laws providing to the contrary were held  bad. Indeed, the court also enunciated certain guidelines for the composition  and selection of the  independent  broadcasting authorities on the ground that such a course is necessary to ensure freedom from Government control.  It should be  noted that  an  unfettered freedom for licensees to  select  which programmes   appear  on  their  schedule  to  the   complete disregard  of  the interests of public appears more  like  a property  right than an attribute of freedom of speech.   It is  for  this reason that the  German  constitutional  court opined  in 1981 (57 BVerfGE 295) and in 1987 (73 BVerfGE  II 8)  that  television and radio is an instrument  of  freedom serving  the more fundamental freedom of speech in  the  in- terest  of  both  broadcasters and the  public.   The  court opined that broadcasting freedom is to be protected  insofar as it’s exercise promotes the goals of free speech, i.e., an informed  democracy  and lively discussion of a  variety  of views.   The freedom of broadcaster cannot be understood  as merely an immunity from government intervention but must  be understood  as a freedom to safeguard free speech  right  of -all the people without being dominated either by the  State or any commercial group.  This is also the view taken by the Italian and French courts. (b)  LISTENERS/VIEWERS RIGHT. 181. Broadcasting freedom involves and includes the right of the viewers and listeners who retain their interest in  free speech.   It is on this basis that the European courts  have taken  the view that restraints on freedom  of  broadcasters are  justifiable on the very ground of free speech.  It  has been  held that freedom of expression includes the right  to receive  information and ideas as well as freedom to  impart them.   "The free speech interests of viewers and  listeners in exposure to a wide variety of material can best be  safe- guarded  by the imposition of programme standards,  limiting the  freedom  of radio and television  companies.   What  is important   according  to  this  perspective  is  that   the broadcasting  institutions  are  free  to  discharge   their responsibilities  of  providing the public with  a  balanced range  of  programmes and a variety of  views.   These  free speech  goals  require  positive  legislative  provision  to prevent  the domination of the broadcasting  authorities  by the  government or by private corporations and  advertisers, and perhaps for securing impartiality........ 182.  The Fairness Doctrine evolved by FCC and  approved  by the  United States Supreme Court in Red Lion  protected  the interest  of  persons  by  providing a  right  of  reply  to personal  attacks.   But  difficulties have  arisen  in  the matter  of enforcing the listeners’/viewers’ rights  through courts.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 95 of 109  

(c)  ACCESS TO BROADCASTING: 183. The third facet of broadcasting freedom is the  freedom of  individuals and groups of individuals to have access  to broadcasting media to express their views. 215 The first argument in support of this theory is that  public is  entitled  to hear range of opinions  held  by  different groups so that it can make sensible choices on political and social issues.  In particular, these views should be exposed on  television, the most important contemporary medium.   It is  indeed  the  interest of  audience  that  justified  the imposition  of  impartiality rules  and  positive  programme standards upon the broadcasters.  The theoretical foundation for the claim for access to broadcasting is that freedom  of speech  means  the freedom to communicate effectively  to  a mass audience which means through mass media.  This is  also the view taken by our court as pointed out supra. 184.  An important decision on this as’pect is that  of  the United States Supreme Court in Columbia Broadcasting  System v.  Democratic National Committee [412 US 94  (1973)].   The CBS denied to Democrats and a group campaigning for peace in Vietnam  any advertising time to comment  upon  contemporary political  issues.  Its refusal was upheld by the  FCC,  but the District of Columbia Circuit Court of Appeals ruled that an  absolute ban on short pre-paid editorial  advertisements infringed the First Amendment and constituted  impermissible discrimination.   The  Supreme Court, however,  allowed  the plea of CBS holding that recognition of a right of access of citizens   and  groups  would  be  inconsistent   with   the broadcasters’  freedom.   They observed that if  such  right were  to  be recognised, wealthy  individuals  and  pressure groups   would  have  greater  opportunities   to   purchase advertising time. It rejected the "view that every potential speaker  is  ’the best judge of what  the  listening  public ought  to  hear ". (Burger,C.J.) Some Judges  expressed  the opinion   that  the  broadcaster  enjoyed  the  same   First Amendment  rights  as the newspapers  whereas  the  minority represented by Brennan and Marshall,JJ. was of the view that freedom  of groups and individuals to  effective  expression justified  recognition  of some access rights to  radio  and television. 185.  It  appears  that this aspect has  been  debated  more intensively in Italy.  The Italian constitutional court held that  the monopoly of RAI can be justified only  on  certain conditions, one of them being that access must be allowed so far  as  possible  to the political,  religious  and  social groups, representing various strands of opinion in  society. It  opined that statutory provision for access was  required by  Article 21 of the Constitution guaranteeing  freedom  of expression.  The Italian courts viewed access as a goal or a policy  rather than a matter- of fundamental right while  at the  same time protecting the individual’s right  of  reply. On  this  aspect,  Barendt says: There  are  also  practical objections  to access rights.  It may be very  difficult  to decide, for example, which group are to be given access, and when  and how often such programmes are shown.  There  is  a danger some groups will be unduly privileged........ (d)THE RIGHTS TO ESTABLISH PRIVATE BROADCASTING STATIONS: 186. The French Broadcasting Laws of 1982 and 1989 limit the right of citizens to establish private broadcasting stations in the light of the necessity to respect individual  rights, to  safeguard  pluralism of opinion and  to  protect  public interests  such as national security and public  order.   No private radio or television channel or sta- 216

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 96 of 109  

tion can be established without prior authorisation from the regulatory  body,  Conseil superieur de  l’audiovisuel.   In Britain,  the  ITC and the Radio Authority  must  grant  the necessary  licence for establishing a private television  or radio  station.  In none of the European countries is  there an  unregulated right to establish private  radio/television station.  It is governed by law.  Even in United States,  it requires a licence from FCC. 187.  Let  us examine the position obtaining  in  Italy  and Germany  where  constitutional provisions  corresponding  to Article  19(1)(a)  -  indeed more explicit in  the  case  of Germany  - obtain.  Notwithstanding Article 21, referred  to hereinbefore, the Italian Constitutional Court continues  to hold  that  public monopoly of  broadcasting  is  justified, atleast at national level till adequate anti-trust laws  are enacted  to  prevent the development of private  media  oli- gopolies.   In fact, this principle has been applied in  the case of local broadcasting and private broadcasting  allowed at local level.  The Italian Constitutional Court is of  the view  that  Article 21 of the Italian Constitution  does  no doubt  confer right to speak freely but this right is to  be exercised  by "using means already at one’s disposal, not  a right  to use public property, such as the airwaves  ".  The analogy with the right to establish private schools was held to  be a weak one and rejected by the Constitutional  Court. More  particularly, it is of the view that it is  impossible to  justify recognition of a right which only a  handful  of individuals and media companies can enjoy in practice. 188.  In  Germany  too, the  Constitutional  Court  has  not recognised  a  right in the citizens  to  establish  private television/radio stations at their choice.  The question was left open in what is called the Third Television case.  This question has, however, lost its significance in view of  the laws made in 1980s permitting private broadcasting.  What is relevant is that even after the enactment of the said  laws, the  Constitutional  Court  held in  Sixth  Television  case (decided in 1991) that establishment of private broadcasting stations is not a matter of right but a matter for the State (legislature)  to  decide.  If the State,  legislation  does permit  such private broadcasting, it has been held  at  the same   time,   it  cannot  impose  onerous   programme   and advertising  restrictions upon them so as to  imperil  their existence. 189.      So  far  as the United States  is  concerned,where licencing of private broadcasting stations has been in vogue since  the very beginning, the Supreme Court said in  C.B.S. v.   Democratic  Committee  [36  L.Ed.2d.772  (1973)]   that "(B)ecause  the broadcast media utilize a valuable and  lim- ited public resource, there is also present an unusual order of First Amendment values".  It then affirmed the holding in Red  Lion  that  "no one has a First Amendment  right  to  a license  or  to  monopolize a radio  frequency;  to  deny  a station  license because ’the public interest’  requires  it ’is not a denial of free speech ... ****.  The               **** It is true that reference to "the  public               interest" in the above extract must be  under-               stood in the light of the guidance provided to               F.C.C., which inter alia directs the F.C.C. to               perform  its functions consistent with  public               interest,  the fact yet remains that even  the               guidance  so  provided was  understood  to  be               within  the  ambit  of  First  Amendment   and               consistent with the free speech right  guaran-               teed  by it.  It was held in  National  Broad-               casting  Company  v. United States  (1943  319

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 97 of 109  

             U.S. 190) that the guidance provided to F.C.C.               to exercise its powers "as public convenience,               interest   or  necessity  requires"  did   not               violate the First Amendment.                217 court   also  affirmed  that  "it  is  idle  to   posit   an unabridgeable First Amendment right to broadcast  comparable to  the  right of every individual to speak, write  or  pub- lish."  It is relevant to mention here that the  distinction made between the Press and the broadcasting media  vis-a-vis the First Amendment has been justified by an American jurist Bollinger  as  based on First Amendment values  and  not  on notions   of  expediency.   He  says  that  in   "permitting different  treatment  of the  two  institutions......  (the) Court has imposed a compromise - a compromise, however,  not based on notions of expediency, but rather on a reasoned and principled  accommodation of competing First Amendment  val- ues".  [75  Michigan law Review 1, 26-36  (1976)  quoted  in "Constitutional  Law" by Stone, Seidman and  others  (Second Edition) at 1427-28]. 190.  It is true that with the advances in  technology,  the argument of few or limited number of frequencies has  become weak.   Now,  it  is claimed that  an  unlimited  number  of frequencies  are available.  We shall assume that it is  so. Yet the fact remains that airwaves are public property  that they  are to be utilised to the greatest public  good;  that they  cannot be allowed to be monopolised or hijacked  by  a few  privileged persons or groups; that granting license  to everyone  who asks for it would reduce the right to  nothing and that such a licensing system would end up in creation of oligopolies as the experience in Italy has shown - where the limited experiment of permitting private broadcasting at the local  level though not at the national level, has  resulted in  creation  of giant media empires and media  magnates,  a development  not  conducive  to free  speech  right  of  the citizens.  It would be instructive to note the lament of the United States Supreme Court regarding the deleterious effect the  emergence of media empires had on the freedom of  Press in that country.  In Miami Herald Publishing Company v. Tor- nillo (1974 - 418 U.S. 24 1), the Court said:               "Access  advocates submit that .... the  press               of  today  is in reality very  different  from               that known in the early years of our  national               existence.....               The  elimination  of competing  newspapers  in               most   of   our   large   cities,   and    the               concentration of control of media that results               from  the only newspaper’s being owned by  the               same interests which own a television  station               and a radio station, are important  components               of this trend towards concentration of control               of outlets to inform the public.               The  result of these vast changes has been  to               place  in a few hands the power to inform  the               American  people  and  shape  public  opinion.               Much  of the editorial opinion and  commentary               that   is  printed  is  that   of   syndicated               columnists  distributed nationwide and,  as  a               result,  we  are told, on national  and  world               issues  there  tends to be  a  homogeneity  of               editorial     opinion,     commentary,     and               interpretive analysis.  The abuses of bias and               manipulative reportage are, likewise, said  to               be  the  result of the vast  accumulations  of               unreviewable power in the modem media empires.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 98 of 109  

             In effect, it is claimed, the public has  lost               any  ability to respond or to contribute in  a               meaningful way to the debate on issues....               The  obvious solution, which was available  to               dissidents at an earlier time when entry  into               publishing  was relatively inexpensive,  today               would  be to have additional newspapers.   But               the  same economic factors which  have  caused               the   disappearance   of   vast   numbers   of               metropoli-                                    218               tan  newspapers,  have  made  entry  into  the               market  place  of ideas served  by  the  print               media almost impossible.  It is urged that the               claim of newspapers to be "surrogates for  the               public"   carries   with  it   a   concomitant               fiduciary  obligation  to  account  for   that               stewardship.  From this premise it is reasoned               that the only effective way to insure fairness               and   accuracy   and  to  provide   for   some               accountability  is  for  government  to   take               affirmative   action.  The   First   Amendment                             interest  of the public in being  informed  is               said  to be in peril because the  "marketplace               of  ideas " is today a monopoly controlled  by               the owners of the market........               (Emphasis added) Of course, there is another side to this picture: the  media gaints  in  United States are so  powerful  that  Government cannot  always  manipulate  them  - as  was  proved  in  the Pentagon  Papers’  case [New York Times  v.United  States  - (1971) 403 U.S.713)] and in the case of President’s Claim of Privilege  [United States v. Nixon - (1974)  418  U.S.683)]. These  considerations  - all of them emphasised  by  Consti- tutional  Courts  of United States and  major  west-European countries  -  furnish  valid grounds  against  reading  into Article  19(1)(a) a right to establish private  broadcasting stations,  whether  permanent or  temporary,  stationary  or mobile.   Same  holding holds good for  earth  stations  and other  telecasting equipment which the petitioners  want  to bring  in  through  their  chosen  agencies.   As  explained hereinbefore, there is no distinction in principle between a regular TV station and an earth station or other telecasting facility.  More about this aspect later. 191.      Having   noticed  the  judicial  wisdom   of   the Constitutional Courts in leading democracies, we may turn to the issues arising herein.               The  Nature  of grounds specified  in  Article               19(2) of the Constitution 192.      A look at the grounds in clause (2) of Article 19, in  the  interests  of  which a  law  can  be  made  placing reasonable  restrictions  upon  the freedom  of  speech  and expression  goes to show that they are all conceived in  the national  interest  as well as in the interest  of  society. The  first  set of grounds, viz., the  sovereignty  and  in- tegrity  of  India,  the security  of  the  State,  friendly relations  with foreign States and public order are  grounds referable  to  national interest whereas the second  set  of grounds,   viz.,  decency,  morality,  contempt  of   court, defamation  and incitement to offence are conceived  in  the interest  of society.  The inter-connection and  the  inter- dependence of freedom of speech and the stability of society is  undeniable.  They indeed contribute to and promote  each other.   Freedom  of speech and expression  in  a  democracy ensures  that the change desired by the people,  whether  in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 99 of 109  

political,  economic  or  social sphere,  is  brought  about peacefully  and  through law.  That change  desired  by  the people  can  be  brought  about in  an  orderly,  legal  and peaceful  manner is by itself an assurance of stability  and an  insurance against violent upheavals which are the  hall- mark  of  societies  ruled by dictatorships,  which  do  not permit  this  freedom.  The stability of, say,  the  British nation  and  the  periodic  convulsions  witnessed  in   the dictatorships  around  the  world is  ample  proof  of  this truism.  The converse is equally true.  The more stable  the society  is,  the more scope, it provides  for  exercise  of right of free speech and expression.  A society which  feels secure can and does permit a greater latitude than a society whose stability is in 219 constant  peril.   As observed by Lord Sumner in  Bowman  v. Secular Society Ltd. (1917 A.C.406): "The  words,  as well as the acts, which  tend  to  endanger society differ from time to time in proportion as society is stable or insecure in fact, or is believed by its reasonable members to be open to assault.  In the present day  meetings or  processions are held lawful which a hundred  and  fifty’ years ago would have been deemed seditious, and this is  not because  the law is weaker or has changed, but because,  the times  having changed, society is stronger than  before..... \.  After  all, the question whether a given  opinion  is  a danger  to  society  is a question of the  times  and  is  a question of fact.  I desire to say nothing that would  limit the  right  of society to protect itself by process  of  law from  the dangers of the movement, whatever that  right  may be,  but only to say that, experience having proved  dangers once  thought  real to be now negligible, and  dangers  once very  possibly  imminent to have now passed away,  there  is nothing   in   the  general  rules  as  to   blasphemy   and irreligion  ....  which  prevents  us  from  varying   their application  to the particular circumstances of our time  in accordance with that experience. 193.  It is for this reason that our founding fathers  while guaranteeing  the freedom of speech and expression  provided simultaneously that the said right cannot be so exercised as to  endanger the interest of the nation or the  interest  of the  society,  the case may be.  This is not merely  in  the interest  of nation and society but equally in the  interest of  the freedom of speech and expression itself, the  reason being the mutual relevance and inter-dependence aforesaid. 194.      Reference  may also be made in this connection  to the decision of the United States Supreme Court in F.C.C. v. National  Citizens  Committee for Broadcasting  [(1978)  436 U.S.775],  referred to hereinbefore, where it has been  held that "to deny a station licence because the public  interest requires  it  is  riot  a denial of  free  speech".   It  is significant  that this was so said with reference  to  First Amendment to the United States Constitution which guarantees the freedom of speech and expression in absolute terms.  The mason is obvious.  The right cannot rise above the  national interest  and the interest of society which is  but  another name  for the interest of general public.  It is  true  that Article  19(2) does not use the words  "national  interest", "interest  of society" or "public interest" but  as  pointed hereinabove, the several grounds mentioned in clause (2) are ultimately  referable to the interests of the nation and  of the  society.   As observed by White,j.,  speaking  for  the United States Supreme Court, in Red Lion:               "It  is the purpose of the First Amendment  to               preserve  an uninhibited marketplace of  ideas

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 100 of 109  

             in which truth will ultimately prevail, rather               than  to  countenance monopolization  of  that               market, whether it be by the Government itself               or  a  private licensee.  Associated  Press  v               United  States,  326 US 1, 20, 89 L  Ed  2013,               2030, 65 S Ct 1416 (1945); New York Times  Co.                             v  Sullivan, 376 US 254, 270, 11 L Ed 2d  686,               700, 84 S Ct 710, 95 ALR2d 1412 (1964); Abrams               v  United  States, 250 US 616, 630,  63  L  Ed               1173, 1180, 40 S Ct 17 (1919) (Holmes,J., dis-               senting).  "[S]peech concerning public affairs               is more Om self-expression; it is the  essence               of self-government." Garrison v Louisiana, 379               US 64, 74-75, 13 L Ed 2d 125, 133, 85 S Ct 209               (1964).   See Brennan, The Supreme  Court  and               the               220               Meiklejohn   interpretation   of   the   First               Amendment, 79 Hary L Rev 1 (1965).  It is  the               right of the public to receive suitable access               to  social,  political, esthetic,  moral,  and               other  ideas and experiences which is  crucial               here."               (Emphasis added) 195.      We may have to bear this in mind while delineating the   parameters  of  this  freedom.   It  would   also   be appropriate  to  keep in mind the observations  in  Columbia Broadcasting  System  v. Democratic National  Committee  (36 L.Ed.2d.772),  Burger,C.J. quoted the words of Prof,  Chafee to the following effect:               "Once we -get away from the bare words of  the               First  Amendment, we must construe it as  part               of  a Constitution which creates a  government               for  the  purpose of performing  several  very               important tasks. The First Amendment should be               interpreted  so as not to cripple the  regular               work of the government. 196.      We  must also bear in mind that the obligation  of the  State to ensure this right to all the citizens  of  the country (emphasised hereinbefore) creates an obligation upon it to ensure that the broadcasting media is not monopolised, dominated  or  hijacked  by privileged,  rich  and  powerful interests.  Such monopolisation or domination cannot but  be prejudicial  to the freedom of speech and expression of  the citizens  in general - an aspect repeatedly stressed by  the Supreme Court of United States and the Constitutional Courts of Germany and Italy. 197. The  importance and significance of television  in  the modern world needs no emphasis.  Most people obtain the bulk of  their  information on matters of  contemporary  interest from the broadcasting medium. The  television  is unique in the way in which  it  intrudes into our homes.  The combination of picture and voice  makes it an irresistibly attractive medium of presentation.   Call it  idiot  box  or by any other pejorative name,  it  has  a tremendous  appeal  and influence over millions  of  people. Many  of  them are glued to it for hours on  end  each  day. Television  is  shaping the food  habits,  cultural  values, social  mores  and what not of the society in  a  manner  no other  medium  has  done  so  far.   Younger  generation  is particularly  addicted to it.  It is a powerful  instrument, which can be used for greater good as also for doing immense harm to the society.  It depends upon how it is used.   With the advance of technology, the number of channels  available has   grown  enormously.   National  borders   have   become

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 101 of 109  

meaningless.   The  reach of some of the major  networks  is international  they are not confined to one country  or  one region.   It  is no longer possible for  any  government  to control or manipulate the news, views and information avail- able   to  its  people.   In  a  manner  of  speaking,   the technological  revolution is forcing inter-nationalism  upon the world.  No nation can remain a fortress or an island  in itself  any  longer.  Without a  doubt,  this  technological revolution is presenting new issues, complex in nature -  in the  words of Burger,C.J., "complex problems with many  hard questions and few easy answers".  Broadcasting media by  its very  nature is different from Press.  Airwaves  are  public property.     The    fact   that   a   large    number    of frequencies/channels  are  available  does  not  make   them anytheless  public  property.  It is the obligation  of  the State  under our constitutional system to ensure  that  they are used for public good. 198. Now, what does this public good mean and signify in the context of the 221 broadcasting   medium?   In  a  democracy,   people   govern themselves and they cannot govern themselves properly unless they  are aware - aware of social, political,  economic  and other  issues  confronting them.  To enable them to  make  a proper judgment on those issues, they must have the  benefit of  a range of opinions on those issues.  Right  to  receive and  impart  information is implicit in free  speech.   This plurality of opinions, views and ideas is indispensable  for enabling  them to make an informed judgment on those  issues to   know  what  is  their  true  interest,  to  make   them responsible citizens, to safeguard their rights as also  the interests  of  society and State.   All  the  constitutional courts  of leading democracies, reference to which has  been made  hereinbefore,  have  recognised  and  reiterated  this aspect.   This  is also the view of the  European  Court  of Human  Rights.  In Castells v. Spain (14 EHRR 445) -  quoted in  1994  Public  Law  at 524 - the  court  held  that  free political  debate is "at the very core of the concept  of  a democratic society". 199.  From  the  standpoint of  Article  19(1)(a),  what  is paramount is the right of the listeners and viewers and  not the  right of the broadcaster - whether the  broadcaster  is the  State,  public corporation or a private  individual  or body.   A monopoly over broadcasting, whether by  government or  by  anybody else, Is inconsistent with the  free  speech right   of  the  citizens.   State  control   really   means governmental  control, which in turn means, control  of  the political  party  or parties in power for  the  time  being. Such  control is bound to colour the views, information  and opinions  conveyed by the media.  The free speech  right  of the  citizens is better served in keeping  the  broadcasting media under the control of public.  Control by public  means control   by   an   independent   public   corporation    or corporations,  as the case may be, formed under  a  statute. As  held by the Constitutional Court of Italy,  broadcasting provides  an essential service in a democratic  society  and could  legitimately  be reserved for a  public  institution, provided  certain  conditions are met.   The  corporation(s) must  be  constituted and composed in such a  manner  as  to ensure its independence from government and its impartiality on  public issues.  When presenting or discussing  a  public issue,  it  must  be  ensured that all  aspects  of  it  are presented in a balanced manner, without appearing to espouse any  one  point  of  view.   This  will  also  enhance   the credibility  of  the  media  to  a  very  large  extent;   a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 102 of 109  

controlled  media cannot command that level of  credibility. For  the purpose of ensuring the free speech rights  of  the citizens guaranteed by Article 19(1)(a), it is not necessary to  have  private  broadcasting stations,  as  held  by  the Constitutional Courts of France and Italy.  Allowing private broadcasting  would  be  to  open  the  door  for   powerful economic, commercial and political interests, which may  not prove beneficial to free speech right of the citizens -  and certainly  so,  if  strict  programme  controls  and   other controls  are  not prescribed.  The analogy  with  press  is wholly   inapt.   Above  all,  airwaves  constitute   public property.  While, the freedom guaranteed by Article 19(1)(a) does include the right to receive and impart information, no one  can  claim the fundamental right to do so by  using  or employing  public property.  Only where the statute  permits him  to use the public property, then only - and subject  to such conditions and restrictions as the law may impose -  he can  use  the  public property, viz.,  airwaves.   In  other words, Article 19(1)(a) does not 222 enable  a  citizen  to impart  his  information,  views  and opinions by using the airwaves.  He can do so without  using the  airwaves.   It  need  not  be  emphasised  that   while broadcasting  cannot  be effected  without  using  airwaves, receiving  the  broadcast  does not involve  any  such  use. Airwaves, being public property must be utilised to  advance public  good.   Public good lies in  ensuring  plurality  of opinions, views and ideas and that would scarcely be  served by  private broadcasters, who would be and who are bound  to be  actuated  by  profit motive.  There  is  a  far  greater likelihood  of these private broadcasters indulging in  mis- information,  disinformation  and manipulation of  news  and views  than  the government-controlled media,  which  is  at least  subject  to public and parliamentary  scrutiny.   The experience in Italy, where the Constitutional Court  allowed private broadcasting at the local level while denying it  at the  national level should serve as a lesson;  this  limited opening  has  given  rise  to  giant  media  oligopolies  as mentioned  supra.  Even with the best of programme  controls it  may prove counter-productive at the present juncture  of our development; the implementation machinery in our country leaves   much   to  be  desired  which  is  shown   by   the ineffectiveness of the several enactments made with the best of the intentions and with most laudable provisions; this is a reality which cannot be ignored.  It is true that even  if private  broadcasting is not allowed from Indian soil,  such stations  may spring up on the periphery of or  outside  our territory,  catering  exclusively  to  the  Indian   public. Indeed, some like stations have already come into existence. The  space,  it  is said, is  saturated  with  communication satellites  and that they are providing and are able to  pro vide   any  number  of  channels  and   frequencies.    More technological developments must be in the offing.  But  that cannot  be a ground for enlarging the scope of Article  19(1 (a).   It  may  be a factor in favour  of  allowing  private broadcasting  - or it may not be.  It may also be  that  the Parliament decides to increase the number of channels  under the  Doordarshan,  diversifying them  into  various  fields, commercial,  educational, sports and so on.  Or the  Parlia- ment  may decide to permit private broadcasting, but  if  it does  so  permit,  it  should not  only  keep  in  mind  the experience  of  the countries where such a course  has  been permitted  but also the conditions in this country  and  the compulsions of technological developments and the  realities of situation resulting from technological developments.   We

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 103 of 109  

have  no doubt in our mind that it will so bear in mind  the above factors and all other relevant circumstances.  We make it  clear, we are not concerned with matters of  policy  but with  the content of Article 19(1)(a) and we say that  while public broadcasting is implicit in it, private  broadcasting is  not.   Matters  of  policy are  for  the  Parliament  to consider and not for courts.  On account of historical  fac- tors, radio and television have remained in the hands of the State  exclusively.   Both the networks have been  built  up over  the  years  ’With public funds.   They  represent  the wealth and property of the nation.  It may even be said that they  represent  the  material resources  of  the  community within the meaning of Article 39(b).  They may also be  said to  be ’facilities’ within the meaning of Article  38,  They must  be  employed consistent with the  above  articles  and consistent  with the constitutional policy as adumbrated  in the  preamble to the Constitution and Parts III and IV.   We must  reiterate that the Press whose freedom is implicit  in Article 19(1)(a) stands 223 on a different footing.  The petitioners - or the  potential applicants for private broadcasting licenses - cannot invoke the  analogy of the press.  To repeat, airwaves  are  public property  and better remain in public hands in the  interest of the very freedom of speech and expression of the citizens of this country. 200. It would be appropriate at this stage to deal with  the reasoning of the European Court of Human Rights in the  case of Informationsverein Lentia.  The first thing to be noticed in  this  behalf  is the language of Article  10(1)  of  the European  convention, set out hereinbefore.  Clause  (1)  of Article  10  not only says that everyone has  the  right  to freedom  of  expression but also says that  the  said  right shall  include freedom to hold opinions and to  receive  and impart information and ideas without interference by  public authority and regardless of frontiers.  The clause then adds that  Article 10 shall not, however, prevent the State  from requiring  the  licensing  of  broadcasting,  television  or cinema enterprises.  Clause (2) of course is almost in  para materia  with clause (2) of Article 19 of our  Constitution. What   is,  however,  significant  is  that  Article   10(1) expressly  conferred  the  right  "to  receive  and   impart information   and  ideas  without  interference  by   public authority".  The only power given to public authority, which in the context means the State/Government, is to provide the requirement of license and nothing more.  It is this feature of clause (1) which has evidently influenced the decision of the European court.  The decision cannot, therefore, be read as  laying down that the right of free expression by  itself implies   and  includes  the  right  to  establish   private broadcasting stations.  It is necessary to emphasise another aspect.  While I agree with the statement in Para 38 to  the effect  that  freedom  of expression  is  fundamental  to  a democratic  society  and  that the  said  right  "cannot  be successfully  accomplished  unless  it is  grounded  in  the principle  of pluralism, of which the State is the  ultimate guarantor", I find it difficult to agree that such pluralism cannot  be ensured by a public/statutory corporation of  the nature  already  in  existence in Austria  and  that  it  is necessary  to  provide for private  broadcasting  to  ensure pluralism, as held in Para 39.  The fact that as a result of technological  advances, the argument of limited  number  of frequencies  is no longer available, cannot be a ground  for reading  the right to private broadcasting into  freedom  of expression.   The  decision  as  such  is  coloured  by  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 104 of 109  

particular  language of clause (1) of Article 10, as  stated above.  I must also say that the last observation in Para 39 viz., that there can be other less restrictive solutions  is also  not  a ground which we can give effect  to  under  the legal  system  governing  us.  The question  in  such  cases always  is  whether  the particular  restriction  placed  is reasonable and valid and not whether other less  restrictive provisions  are  possible.   I may  also  mention  that  the arguments  which weighed with other  constitutional  courts, viz., that airwaves represent public property and that  they cannot be allowed to be dominated or monopolised by powerful commercial, economic and political interests does not appear to have been argued or considered by the European Court.  As has been emphasised by other constitutional courts, the very free  speech  interest  of the citizens  requires  that  the broadcasting  media is not dominated or controlled  by  such powerful interests. 201.     There is yet another aspect of the                             224 petitioners’   claim   which  requires  to   be   explained. According to their own case, they have sold the  telecasting rights  with  respect to their matches to a  foreign  agency with the understanding that such foreign agency shall  bring in its own equipment and personnel and telecast the  matches from  the  Indian  territory.  Once  they  have  sold  their rights,  the  foreign  agency  is not  their  agent  but  an independent party.  It is a principal by itself The  foreign agency  cannot  claim  or enforce the  right  guaranteed  by Article  19(1)(a).   Petitioners cannot also  claim  because they  have  already sold the rights.  In  other  words,  the right  to  telecast  is no longer with  them  but  with  the foreign  firm  which has purchased the  telecasting  rights. For this reason too, the petitioners’ claim must be held  to be unacceptable. 202.  Having held that Article 19(1)(a) does  not  encompass the  right  to  establish,  maintain  or  run   broadcasting stations or broadcasting facilities, we feel it necessary to clarify the true purport of the said freedom in the  context of  broadcasting media.  This is necessary to ensure that  I am  not  misunderstood or misinterpreted.   Indeed,  what  I propose  to say hereafter flows logically from what  I  have said heretofore. 203.  It  has  been held by this  Court  in  Life  Insurance Corporation v. Manubhai Shah that the freedom of speech  and expression  guaranteed  to  the  citizens  of  this  country "Includes  the right to propagate one’s views through  print media or through any other communication channel, e.g.,  the radio  and  the  television.  Every  citizen  of  this  free country,  therefore, has the right to air his or  her  views through  the  printing course  to  permissible  restrictions imposed  under Article 19(2) of the Constitution".   It  has also  been held in the said decision that "the print  media, the radio and the tiny screen play the role of public educa- tors,  so  vital  to  the growth  of  a  healthy  democracy. Freedom to air one’s views is the lifeline of any democratic institution and any attempt to stifle, suffocate or gag this right would sound a death-knell to democracy and would  help usher  in autocracy or dictatorship..... It follows  that  a citizen  for propagation of his or her ideas has a right  to publish for circulation his views in periodicals,  magazines and  journals  or through the electronic media since  it  is well  known  that  these communication  channels  are  great purveyors of news and views and make considerable impact  on the minds of the readers and viewers and are known to  mould public  opinion on vital issues of national importance."  To

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 105 of 109  

the  same  effect is the holding in  Odyssey  Communications referred  to  supra.  Once this is so, it  follows  that  no monopoly  of  this media can be conceived  for  -the  simple reason  that  Article 19(2) does not permit  State  monopoly unlike  clause  (6)  of  Article  19  vis-a-vis  the   right guaranteed by Article 19(1)(g). 204. All the Constitutional Courts whose opinions have  been referred to hereinbefore have taken the uniform view that in the interest of ensuring plurality of opinions, views, ideas and ideologies, the broadcasting media cannot be allowed  to be  under  the monopoly of any one - be it the  monopoly  of Government  or  or  an  individual,  body  or  Organisation. Government  control in effect means the control of  the  po- litical party or parties in power for the time being.   Such control  is  bound  to colour and/or  the  electronic  media subject of and in some cases, may even distort the 225 news, views and opinions expressed through the media.  It is not  conducive to free expression of  contending  viewpoints and opinions which is essential for the growth of a  healthy democracy.   I have said enough hereinbefore in  support  of the  above propositions and we do not think it necessary  to repeat  the  same over again here.  I  have  also  mentioned hereinbefore that for ensuring plurality of views,  opinions and also to ensure a fair and balanced presentation of  news and  public  issues, the broadcast media  should  be  placed under the control of public, i.e., in the hands of statutory corporation  or corporations, as the case may be.   This  is the  implicit  command  of Article 19(1)(a).   I  have  also stressed the importance of constituting and composing  these corporations in such a manner that they ensure  impartiality in political, economic and social and other matters touching the  public and to ensure plurality of views,  opinions  and ideas.   This  again  is the  implicit  command  of  Article 19(1)(a).  This medium should promote the public interest by providing  information, knowledge and entertainment of  good quality  in  a balanced way.  Radio  and  Television  should serve  the role of public educators as well.   Indeed,  more than  one corporation for each media can be provided with  a view to provide competition among them (as has been done  in France) or for convenience, as the case may be. 205.  Now, coming to the Indian Telegraph Act, 1885, a  look at  its  scheme and provisions would disclose  that  it  was meant  for  a  different purpose altogether.   When  it  was enacted,  there  was  neither  Radio*****  nor,  of  course, television,  though it may be that radio or television  fall within  the  definition  of  "telegraph"  in  Section  3(1). Except  Section  4  and the  definition  of  the  expression "telegraph",  no  other provision of the Act appears  to  be relevant  to  broadcasting  media.  Since  the  validity  of Section 4(1) has not been specifically challenged before us, we decline to express any opinion thereon.  The situation is undoubtedly  unsatisfactory.   This  is the  result  of  the legislation  in  this  country not  keeping  pace  with  the technological  developments.  While all the  democracies  in the  world  have  enacted laws  specifically  governing  the broadcasting  media, this country has lagged behind,  rooted in the Telegraph Act of 1885 which is wholly inadequate  and unsuited  to an important medium like radio and  television, i.e.,  broadcasting media.  It is absolutely  essential,  in the interests of public, in the interests of the freedom  of speech  and  expression guaranteed by Article  19(1)(a)  and with  a view to avoid confusion, uncertainty and  consequent litigation that Parliament steps in soon to fill the void by enacting  a law or laws, as the case may be,  governing  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 106 of 109  

broadcasting  media, i.e., both radio and television  media. The  question whether to permit private broadcasting or  not is  a matter of policy for the Parliament to decide.  If  it decides  to permit it, it is for the Parliament  to  decide, subject  to  what conditions and restrictions should  it  be permitted. (This aspect has been dealt with supra.) The fact remains  that private broadcasting, even if allowed,  should not  be left to market forces, in the interest  of  ensuring that a wide variety of voices enjoy access to it. SUMMARY 206. In this summary too, the expres-               ***** It was only in  1895 that G.Marconi suc-               ceeded  in transmitting wireless  signals  be-               tween sending and receiving points without the                             use of connecting wires over a distance of  tw o               kilometers.               226 sion  "broadcasting  media" means the electronic  media  now represented and operated by AIR and Doordarshan and not  any other services. I (a).Game of cricket, like any other sports event,provides entertainment.  Providing     entertainment  is  implied  in freedom  of  speech  and expression  guaranteed  by  Article 19(1)(a)  of  the Constitution subject to  this  rider  that where  speech and conduct are joined in a single  course  of action,  the  free speech values must  be  balanced  against competing societal interests, The petitioners (CAB and BCCI) therefore have a right to organise cricket matches in India, whether with or without the participation of foreign  teams. But what they are now seeking is a license to telecast their matches through an agency of their choice - a foreign agency in  both  the  cases -  and  through  telecasting  equipment brought in by such foreign agency from outside the  country. In  the  case  of Hero Cup Matches organised  by  CAB,  they wanted uplinking facility to INTELSAT through the government agency  VSNL  also.   In the  case  of  later  international matches organised by BCCI they did not ask for this facility for the reason that their foreign agent has arranged  direct uplinking  with  the  Russian satellite  Gorizon.   In  both cases, they wanted the permission to import the  telecasting equipment  along with the personnel to operate it by  moving it to places all over the country wherever the matches  were to be played.  They claimed this license, or permission,  as it  may be called, as a matter of right said to  be  flowing from  Article 19(1)(a) of the Constitution.  They  say  that the authorities are bound to grant such license/ permission, without any conditions, all that they are entitled to do, it is  submitted, is to collect technical fees  wherever  their services are availed, like the services of VSNL in the  case of Hero Cup Matches.  This plea is in principle no different from the right to establish and operate private  telecasting stations.   In principle, there is no difference  between  a permanent TV station and a temporary one; similarly there is no distinction in principle between a stationary TV facility and a mobile one; so also is there no distinction between  a regular  TV facility and a TV facility for a given event  or series  of events.  If the right claimed by the  petitioners (CAB  and  BCCI) is held to be  constitutionally  sanctioned one,  then each and every citizen of this country must  also be  entitled to claim similar right in respect of his  event or events, as the case may be.  I am of the opinion that  no such right flows from Article 19(1)(a). (b)Airwaves constitute public property and must be  utilised for  advancing  public good.  No individual has a  right  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 107 of 109  

utilise them at his choice and pleasure and for purposes  of his  choice  including  profit.  The right  of  free  speech guaranteed by Article 19(1)(a) does not include the right to use  airwaves, which are public property.  The airwaves  can be  used by a citizen for the purpose of  broadcasting  only when  allowed to do so by a statute and in  accordance  with such  statute.   Airwaves being public property, it  is  the duty of the State to see that airwaves are so utilised as to advance  the  free  speech right of the  citizens  which  is served  by  ensuring  plurality  and  diversity  of   views, opinions  and ideas.  This is imperative in every  democracy where  freedom of speech is assured.  The free speech  right guaranteed  to  every  citizen  of  this  country  does  not encompass  the right to use these airwaves at his  choosing. Conceding such a right would be 227 detrimental  to the free speech rights of the       body  of citizens  inasmuch  as only the privileged  few  -  powerful economic, commercial and political interests - would come to dominate  the  media.  By manipulating the news,  views  and information,    by   indulging   in    misinformation    and disinformation, to suit their commercial or other interests, they  would  be harming and not serving - the  principle  of plurality and diversity of views, news, ideas and  opinions. This has been the experience of Italy where a limited right, i.e.,  at the local level but not at the national level  was recognised.   It  is also not possible to imply or  infer  a right from the guarantee of free speech which only a few can enjoy. (c)Broadcasting media is inherently different from Press  or other  means of communication/information.  The  analogy  of press  is  misleading and inappropriate.  This is  also  the view  expressed by several Constitutional  Courts  including that of the United States of America. (d)  I must clarify what I say; it is that the right claimed by  the petitioners (CAB and BCCI) - which in effect  is  no different in principle from a right to establish and operate a private TV station - does not flow from Article  19(1)(a); that  such  a  right is not Implicit in  it.   The  question whether  such right should be given to the citizens of  this country  is a matter of policy for the  Parliament.   Having regard  to the revolution in information technology and  the developments all around, Parliament may, or may not,  decide to confer such right.  If it wishes to confer such a  right, it can only be by way of an Act made by Parliament.  The Act made  should be consistent with the right of free speech  of the  citizens and must have to contain strict programme  and other  controls as has   been provided for example,  in  the Broadcasting  Act, 1991 in the United Kingdom.  This is  the implicit  command  of Article 19(1)(a) and is  essential  to preserve and promote plurality and diversity of views, news, opinions and ideas. (e)  There   is  an  inseparable  inter-connection   between freedom  of speech and the stability of the  society,  i.e., stability of a nation-State.  They contribute to each other. Ours is a nascent republic.  We are yet to achieve the  goal of  a  stable society.  This country cannot also  afford  to read   into  Article  19(1)(a)  an  unrestricted  right   to licensing   (right  of  broadcasting)  as  claimed  by   the petitioners herein. (f)  In  the case before us, both the petitioners have  sold their  right  to telecast the matches to a  foreign  agency. They have parted with the right.  The right to telecast  the matches, including the right to import, install and  operate the requisite equipment is thus really sought by the foreign

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 108 of 109  

agencies and not by the petitioners.  Hence, the question of violation  of their right under Article  19(1)(a)  resulting from refusal of license/permission to such foreign  agencies does not arise. 2.  The  Government monopoly of broadcasting media  in  this country is the result of historical and other factors.  This is  true of every other country, to start with.  That  India was  not a free country till 1947 and its citizens  did  not have  constitutionally guaranteed fundamental freedoms  till 1950  coupled  with the fact that our Constitution  is  Just about   forty  five  years  into  operation   explains   the Government  monopoly.   As pointed out in the  body  of  the judgment, broadcasting media was a mo- 228 nopoly  of the Government, to start with, in  every  country except  the  United States where a  conscious  decision  was taken at the very beginning not to have State monopoly  over the medium.  Until recently, the broadcasting media has been in the hands of public/statutory corporations in most of the West   European   countries.    Private   broadcasting    is comparatively a recent phenomenon.  The experience in  Italy of  allowing  private  broadcasting at  local  level  (while prohibiting  it  at  national level) has  left  much  to  be desired.  It has given rise to powerful media empires  which development is certainly not conducive to free speech  right of the citizens. 3 (a).  It has been held by this Court - and rightly -  that broadcasting  media is affected by the free speech right  of the  citizens guaranteed by Article 19(1)(a).  This is  also the  view expressed by all the Constitutional  Courts  whose opinions have been referred to in the body of the  judgment. Once  this  is  so, monopoly of  this  medium  (broadcasting media),  whether by Government or by an individual, body  or Organisation is unacceptable.  Clause (2) of Article 19 does not permit a monopoly in the matter of freedom of speech and expression  as  is  permitted by clause (6)  of  Article  19 vis-a-vis the right guaranteed by Article 19(1)(g). (b)  The  right of free speech and expression  includes  the right  to receive and impart information.  For ensuring  the free  speech  right of the citizens of this country,  it  is necessary that the citizens have the benefit of plurality of views  and  a  range of opinions on all  public  issues.   A successful democracy posits an ’aware’ citizenry.  Diversity of  opinions,  views, ideas and ideologies is  essential  to enable  the citizens to arrive at informed judgment  on  all issues  touching them.  This cannot be provided by a  medium controlled  by a monopoly - whether the monopoly is  of  the State or any other individual, group or Organisation.  As  a matter of fact, private broadcasting stations may perhaps be more  prejudicial to free speech right of the citizens  than the government controlled media, as explained in the body of the  judgment.  The broadcasting media should be  under  the control of the public as distinct from Government.  This  is the  command  implicit in Article 19(1)(a).   It  should  be operated by a public statutory corporation or  corporations, as the case may be, whose constitution and composition  must be  such as to ensure its/their impartiality  in  political, economic and social matters and on all other public  issues. It/they  must be required by law to present news, views  and opinions in a balanced way ensuring pluralism and  diversity of opinions and views.  It/they must provide equal access to all the citizens and groups to avail of the medium. 4.   The Indian Telegraph Act, 1885 is totally inadequate to govern  an important medium like the radio  and  television, i.e.,  broadcasting  media.   The Act was  intended  for  an

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 109 of 109  

altogether  different purpose when it was enacted.  This  is the result of the law in this country not keeping pace  with the  technological advances in the field of information  and communications.  While all the leading democratic  countries have  enacted laws specifically governing  the  broadcasting media,  the law in this country has stood still,  rooted  in the  Telegraph  Act of 1885.  Except Section  4(1)  and  the definition  of telegraph, no other provision of the  Act  is shown  to have any relevance to broadcasting media.  It  is, therefore,                             229 imperative  that  the  parliament makes a  law  placing  the broadcasting  media  in  the  hands  of  a  public/statutory corporate or the corporations, as the case.may be.  This  is necessary  to  safeguard  the interests of  public  and  the interests of law as also to avoid uncertainty, confusion and consequent litigation. 5.   The  CAB  did not ever apply for a  license  under  the first proviso to Section 4 of the Telegraph Act nor did  its agents  ever  make such an  application.   The  permissions, clearances  or  exemption obtained by it  from  the  several departments (mentioned in judgment) are no substitute for  a license under Section 4(1) proviso.  In the absence of  such a  license, the CAB had no right in law to have its  matches telecast  by  an  agency of its  choice.   The  legality  or validity of the orders passed by Sri N.Vithal, Secretary  to the Government of India, Telecommunications Department  need not  be  gone into since it has become,  academic.   In  the facts and circumstances of the case, the charge of malafides or  of  arbitrary and authoritarian  conduct  attributed  to Doordarshan and Ministry of Information and Broadcasting  is not  acceptable.  No  opinion  need  be  expressed   on  the allegations   filed   by  BCCI  in   these   matters.    Its intervention was confined to legal questions only. 6.   Now the question arises, what is the position till  the Central Government or the Parliament takes steps as  contem- plated  in  Para (4) of the summary, i.e., if  any  sporting event or other event is to be telecast from the Indian soil? The obvious answer flowing from the judgment [and Paras  (1) and (4) of this summary is that the organiser of such  event has to approach the, nodal Ministry as specified in the  de- cision  of the Meeting of the Committee of Secretaries  held on November 12, 1993.  I have no reason to doubt that such a request  would be considered by the nodal Ministry  and  the AIR  and  Doordarshan  on its merits, keeping  in  view  the public  interest.  In case of any difference of  opinion  or dispute regarding the monetary terms on which such  telecast is  to  be  made,  matter  can  always  be  referred  to  an Arbitrator  or a panel of Arbitrators.  In case,  the  nodal Ministry    or   the   AIR   or   Doordarshan   find    such broadcast/telecast not feasible, then they may consider  the grant of permission to the organisers to engage an agency of their  own for the purpose.  Of course, it would be  equally open  to the nodal Ministry (Government of India) to  permit such foreign agency in addition to AIR/ Doordarshan, if they are  of the opinion that such a course is called for in  the circumstances. 207.      For the above reasons, the appeals, writ  petition and  applications  are disposed of in the above  terms.   No costs. 232