W.P,(C) 7982/2013 and connected matters Page 1 of 68

$~

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment reserved on: 07.04.2026

Judgment pronounced on: 29.05.2026

Judgment uploaded on: 29.05.2026

+ W.P.(C) 7982/2013, CM APPL. 18654/2015 and CM APPL.

300/2016

9X MEDIA PVT. LTD. & ORS .....Petitioners

Through:

versus

TELECOM REGULATORY AUTHORITY OF INDIA

.....Respondent

Through:

+ W.P.(C) 7983/2013

B4U BROADBAND (INDIA) PVT. LTD. & ORS

.....Petitioners

Through:

versus

TELECOM REGULATORY AUTHORITY OF INDIA

.....Respondent

Through:

+ W.P.(C) 7984/2013

TV VISION LIMITED & ORS

.....Petitioner

Through:

versus

TELECOM REGULATORY AUTHORITY OF INDIA

.....Respondent

Through:

+ W.P.(C) 7985/2013

SUN TV NETWORKS LIMITED .....Petitioner

Through:

W.P,(C) 7982/2013 and connected matters Page 2 of 68

versus

TELECOM REGULATORY AUTHORITY OF INDIA

.....Respondent

Through:

+ W.P.(C) 7987/2013

E 24 GLAMORU LIMITED .....Petitioner

Through:

versus

TELECOM REGULATORY AUTHORITY OF INDIA

.....Respondent

Through:

+ W.P.(C) 7988/2013

PIONEER CHANNEL FACTORY PVT. LTD .....Petitioner

Through:

versus

TELECOM REGULATORY AUTHORITY OF INDIA

.....Respondent

Through:

+ W.P.(C) 7989/2013, CM APPL. 4541/2014 and CM APPL.

74139/2025

M/S NEWS BRADCASTER ASSOCIATION & ORS

.....Petitioners

Through:

versus

TELECOM REGULATORY AUTHORITY OF INDIA

.....Respondent

Through:

+ W.P.(C) 1150/2014 and CM APPL. 2408/2014

M/S. MAA TELEVISION NETWORK LIMITED .....Petitioner

Through:

W.P,(C) 7982/2013 and connected matters Page 3 of 68

versus

TELECOM REGULATORY AUTHORITY OF INDIA

.....Respondent

Through:

+ W.P.(C) 276/2014 and CM APPL. 5897/2014

SARTHAK ENTERTAINMENT PVT. LTD. .....Petitioner

Through:

versus

TELECOM REGULATROY AUTHORI TY OF INDIA

.....Respondent

Through:

+ W.P.(C) 2944/2014

MEDIAWATCH - INDIA ( A REGISTERED SOCIETY)

.....Petitioner

Through:

versus

TELECOM REGULATORY AUTHORITY OF INDIA (TRIA)

.....Respondent

Through:

+ W.P.(C) 312/2014

KALAIGNAR TV PVT. LTD. .....Petitioner

Through:

versus

TELECOM REGULATORY AUTHORITY OF INDIA

.....Respondent

Through:

+ W.P.(C) 3804/2014 and CM APPL. 7659/2014

M/S. NDTV LIFESTYLE LIMITED AND ANR.

.....Petitioners

Through:

W.P,(C) 7982/2013 and connected matters Page 4 of 68

versus

TELECOM REGULATORY AUTHORITY OF INDIA

.....Respondent

Through:

+ W.P.(C) 544/2014

CELEBRITIES MANAGEMENT PVT LTD & ANR.

.....Petitioners

Through:

versus

TELECOM REGULATORY AUTHORITY OF INDIA

.....Respondent

Through:

+ W.P.(C) 6602/2014

ODISHA TELEVISION LIMITED .....Petitioner

Through:

versus

TELECOM REGULATORY AUTHORITY OF INDIA

.....Respondent

Through:

+ W.P.(C) 724/2014

EENADU TELEVISION PRIVATE LIMITED .....Petitioner

Through:

versus

TELECOM REGULATOR Y AUTHORITY OF INDIA AND

ANR .....Respondents

Through:

+ W.P.(C) 739/2014

RAJ TELEVISION PRIVATE LIMITED .....Petitioner

Through:

W.P,(C) 7982/2013 and connected matters Page 5 of 68

versus

TELECOM REGULATORY AUTHORITY OF INDIA &

ANR .....Respondents

Through:

+ W.P.(C) 4307/2021

NEWS BROADCASTERS ASSOCIATION ORS

.....Petitioners

Through:

versus

UNION OF INDIA .....Respondent

Through:

Present for Petitioners:

Mr. Abhinav Mukerji, Sr. Adv. with Ms. Payak Kakra, Mr.

Akash Tyagi, Mr. Pranav, Ms. Khushboo, Advs. in Item No.104

Mr. Kunal Tandon, Sr. Adv. with Ms. Aanchal Tandon, Ms.

Niti Jain, Ms. Niharika Sharma, Mr. Nitai Agarwal, Advs. in

Item Nos.104 and 105.

Ms. Aanchal Tandon, Ms. Niti Jain, Mr. Nitai Agarwal, Advs.

in Item No.106.

Ms. Srishti Gupta, Adv. in Item No.107.

Ms. Nisha Bhambhani, Mr. Rajat Arora, Ms. Mariya Shahab,

Advs. in Item Nos.110 and 120.

Mr. Tribhuvan, Mr. Chandan, Ms. Anushka Sarraf, Advs. in

Item No.117.

Mr. Balaji Srinivasan, Mr. Rohan Dewan, Advs. with Prabhat

Ranjan AR of Petitioner in Item No.118.

Mr. Rajshekhar Rao, Sr. Adv. with Mr. Maanav Kumar, Ms.

Gauri Ramachandran, Advs. in Item No.119.

Present for Respondents:

Mr. Chetan Sharma, ASG with Mr. Vikram Jetly, CGSC with

Ms. Laavanya Kaushik, Ms. Shreya Jetly, Ms. Khyaati Bansal

for UOI in Item Nos.104 to 120.

Mr. Ashish Mehta, Adv. for TRAI in Item Nos.104 to 120.

Mr. Abhishek Malhotra, Sr. Adv. with Ms. Srishti Gupta, Adv.

W.P,(C) 7982/2013 and connected matters Page 6 of 68

for IBF – Intervenor in Item No.104.

Ms. Anushree Rauta, Mr. Nittin Bhatia, Mr. Shwetank Tripathi,

Ms. Devangini Rai, Advs. for Intervenor: Culver Max

Entertainment Private Limited in Item No.104.

Mr. Abhishek Malhotra, Sr. Adv. with Ms. Srishti Gupta, Adv.

in Item No.107.

Ms. Aanchal Tandon, Ms. Niti Jain, Mr. Nitai Agarwal, Advs.

for Applicant in Item No.104.

CORAM:

HON'BLE MR. JUSTICE ANIL KSHETARPAL

HON'BLE MR. JUSTICE AMIT MAHAJAN

J U D G M E N T

ANIL KSHETARPAL , J.:

1. The present batch of 17 Writ Petitions have been filed under

Article 226 of the Constitution of India

1

, by three group of Petitioners,

namely, general entertainment channels (GECs), news broadcasters

and regional channels. The aforestated channels, being major

stakeholders have assailed Rule 7(11) of the Cable Television

Network Rules, 1994

2

inserted by way of R. 452(E) dated 31.07.2006.

Similarly, the constitutional validity of Regulation 3 of Standard of

Quality of Service (Duration of Advertisements in Television

Channels) Regulations, 2012

3

, as amended by way of Standard of

Quality of Service (Duration of Advertisements in Television

Channels) (Amendments) Regulations, 2013

4

, framed by the Telecom

Regulatory Authority of India (TRAI) in exercise of powers under

Sections 11(1)(b)(i) and (v) read with Section 36 of Telecom

Regulatory Authority of India Act, 1997

5

, has also been challenged.

1

Hereinafter referred to as „the Constitution‟

2

Hereinafter referred to as „Impugned Rule‟

3

Hereinafter referred to as „Impugned Regulation of 2012‟

4

Hereinafter referred to as „Impugned Regulation of 2013‟

5

Hereinafter referred to as „Act of 1997‟

W.P,(C) 7982/2013 and connected matters Page 7 of 68

2. The common ground of challenge by the Petitioners pertains to

the fixation of a time ceiling of 10+2 minutes per clock hour for

broadcasting of advertisements, with a 10-minute cap fixed for

commercial advertisements and a 2-minute cap pertaining to self-

promotional advertisements. It is the case of the Petitioners herein that

the aforesaid cap is violative of Articles 14 and 19 of the Constitution.

3. Before turning to the detailed background, followed by

consideration of the rival submissions, we deem it appropriate to

delineate, at the outset, that the primary challenge of the Petitioners is

directed at the Impugned Regulation of 2012 as amended in 2013,

which, as on date, constitutes the latest regulatory framework

governing the permissible duration of advertisements on a „per clock

hour‟ basis. By virtue of the said Regulations, Impugned Rule, stands

effected to the extent of the modifications so introduced. Pithily put,

the core issue raised in the present proceedings does not pertain to the

12-minute ceiling on advertising time per se; rather, the Petitions are

directed towards the stipulation that the said time ceiling is operational

on a „per clock hour‟ computation.

A. BRIEF BACKGROUND AND REGULATORY

FRAMEWORK :

4. The regulatory framework governing broadcasting and cable

television in India traces its origin to the enactment of the Cable

Television Networks (Regulation) Ordinance, 1994

6

, which was

followed by the Cable Television Networks (Regulation) Act, 1995

7

.

The said statutory framework was complemented by the enactment of

Rules of 1994, which were notified pursuant to the aforesaid

6

Hereinafter referred to as „Ordinance of 1994‟

7

Hereinafter referred to as „Act of 1995‟

W.P,(C) 7982/2013 and connected matters Page 8 of 68

Ordinance of 1994. Originally, the Telecom Regulatory Authority of

India Act, 1997 stood confined to telecommunication services,

however, a pivotal shift in the framework occurred by way of a

subsequent notification dated 09.01.2004 bearing no.39 of 2004,

whereby broadcasting and cable services were brought within the

ambit of telecommunication services under Section 2(k) of the Act of

1997. Additionally, the regulatory reach of TRAI was expanded by

empowering its recommendatory domain over matters such as

duration of advertisements.

5. Further, the Cable TV framework came to be crystallised in the

year 2006, with the introduction of the Impugned Rule, thereby

prescribing a ceiling of upto 10+2 minutes of advertisements per hour

for commercial advertisements and self-promotional programmes,

respectively. Thereafter, this regulatory intent came to be refined

through a consultative process, culminating in the promulgation of the

Impugned Regulation of 2012, followed by an amendment by way of

Impugned Regulation of 2013. The Impugned Regulations, when read

conjointly for the purpose of the present petitions, lie at the heart of

the dispute, as by way of Regulation 3, they prescribed a uniform „per

clock-hour‟ ceiling on advertisement duration, to ensure an

uninterrupted and satisfactory viewing experience, thereby giving an

operational effect to the Impugned Rule.

6. As is evident, the Impugned Regulations did not travel

unchallenged. Primarily, the said Regulations became a subject matter

for scrutiny of the Telecom Disputes Settlement and Appellate

Tribunal (TDSAT). However, such proceedings were overtaken by a

jurisdictional pronouncement of the Hon‟ble Supreme Court in Bharat

W.P,(C) 7982/2013 and connected matters Page 9 of 68

Sanchar Nigam Limited vs TRAI

8

, wherein, it was held that TDSAT

does not possess the authority to adjudicate upon such challenges

raised against the Impugned Regulations framed by TRAI.

Accordingly, the appeals stood dismissed, though liberty was granted

to approach the constitutional courts.

7. It is in this continuum that the present Petitions came to be

instituted before this Court, wherein the Petitioners challenged

Regulation 3 of the Impugned Regulations, whereas the Impugned

Rule came to be challenged in the year 2014 by way of W.P.(C)

724/2014. In the interlude, Discovery Communications India entered

the fray as an intervener. Against the aforesaid backdrop, the present

dispute invites this Court to scrutinize the equilibrium between

commercial speech of broadcasting channels and the power of TRAI

to regulate advertisement duration, in the interest of viewers, by way

of imposing a uniform per clock hour ceiling on advertisement

duration.

8. At this stage, it may also be relevant to underscore that the

expansion of definition of Telecommunication Service under the Act

of 1997, to bring within its ambit broadcasting and cable services,

brought an overlapping interplay between the Impugned Rule and the

Act of 1997. Consequently, TRAI, in exercise of its powers under

11(1)(b)(i) and (v), read with Section 36 of the Act of 1997,

introduced a corresponding amendment by way of Impugned

Regulation of 2012, as amended by Impugned Regulation of 2013.

9. Although, at first blush, the challenge before this Court may

8

(2014) 3 SCC 222

W.P,(C) 7982/2013 and connected matters Page 10 of 68

appear to be twofold. However, upon a closer scrutiny, it becomes

apparent that, in substance, the challenges raised separately against the

Impugned Rule and Regulation 3 of the Impugned Regulation of

2012, are directed towards one common object, namely, the

imposition of a per clock hour ceiling on the advertisements. The said

ceiling finds its substantive manifestation in Regulation 3 of the

Impugned Regulation of 2012. Whereas, the Impugned Rule, when

read in conjunction with the notification of the year 2004 operates in

aid of, and derives content from, the Regulation 3. Consequently, the

validity of the Impugned Rule is inextricably linked to, and dependent

upon, the validity of Regulation 3 of the Impugned Regulation of

2012. Accordingly, for the purpose of adjudication, the controversy in

the present batch rests upon the validity of Regulation 3 of the

Impugned Regulation of 2012.

10. Before adverting towards the rival submissions made by the

parties herein, this Court deems it appropriate to reproduce relevant

provisions of the Act of 1995, Act of 1997, Impugned Rule and

Regulations along with other statutes, which have been relied upon by

the learned senior counsels for the parties during their submissions,

which are as follows:

Cable Television Networks (Regulation) Act, 1995-

2. Definitions-In this Act, unless the context otherwise requires,-

(g) ―programme‖ means any television broadcast and

includes—

(i) exhibition of films, features, dramas, advertisements and

serials;

(ii) any audio or visual or audio-visual live performance or

presentation, and the expression ―programming service‖ shall

be construed accordingly;

5. Programme code.—No person shall transmit or re-transmit

through a cable service any programme unless such programme

W.P,(C) 7982/2013 and connected matters Page 11 of 68

is in conformity with the prescribed programme code.

6. Advertisement code.—No person shall transmit or re-transmit

through a cable service any advertisement unless such

advertisement is in conformity with the prescribed advertisement

code.

Cable Television Networks Rules, 1994 (Impugned Rule)-

7. Advertising Code. –

(11) No programme shall carry advertisements exceeding 12

minutes per hour, which may include up to 10 minutes per hour

of commercial advertisements, and up to 2 minutes per hour of a

channel‘s self-promotional programmes.

TELECOM REGULATORY AUTHORITY OF INDIA ACT, 1997

2. Definitions.-(1) In this Act, unless the context otherwise

requires,-

(k) "telecommunication service" means service of any description

(including electronic mail, voice mail, data services, audio tex

services, video tex services, radio paging and cellular mobile

telephone services) which is made available to users by means of

any transmission or reception of signs, signals, writing, images

and sounds or intelligence of any nature, by wire, radio, visual or

other electro-magnetic means but shall not include broadcasting

services.

11. Functions of Authority - (1) Notwithstanding anything

contained in the Indian Telegraph Act, 1885 (13 of 1885), the

functions of the Authority shall be to—

(a) make recommendations, either suo motu or on a request from

the licensor, on the following matters, namely:-

(i) need and timing for introduction of new service provider;

(ii) terms and conditions of licence to a service provider;

(iii) revocation of license for non-compliance of terms and

conditions of licence;

(iv) measures to facilitate competition and promote efficiency in

the operation of telecommunication services so as to facilitate

growth in such services;

(v) technological improvements in the services provided by the

service providers;

(vi) type of equipment to be used by the service providers after

inspection of equipment used in the network;

(vii) measures for the development of telecommunication

technology and any other matter relatable to telecommunication

industry in general;

W.P,(C) 7982/2013 and connected matters Page 12 of 68

(viii) efficient management of available spectrum;

(b) discharge the following functions, namely:--

(i) ensure compliance of terms and conditions of licence;

(ii) notwithstanding anything contained in the terms and

conditions of the licence granted before the commencement of

the Telecom Regulatory Authority of India (Amendment) Act,

2000 (2 of 2000), fix the terms and conditions of inter-

connectivity between the service providers;

(iii) ensure technical compatibility and effective interconnection

between different service providers;

(iv) regulate arrangement amongst service providers of sharing

their revenue derived from providing telecommunication

services;

(v) lay-down the standards of quality of service to be provided

by the service providers and ensure the quality of service and

conduct the periodical survey of such service provided by the

service providers so as to protect interest of the consumers of

telecommunication service;

(vi) lay-down and ensure the time period for providing local and

long distance circuits of telecommunication between different

service providers;

(vii) maintain register of inter-connect agreements and of all

such other matters as may be provided in the regulations;

(viii) keep register maintained under clause (vii) open for

inspection to any member of public on payment of such fee and

compliance of such other requirement as may be provided in the

regulations;

(ix) ensure effective compliance of universal service obligations;

36. Power to make regulations.-(1) The Authority may, by

notification, make regulations consistent with this Act and the

rules made thereunder to carry out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the

foregoing power, such regulations may provide for all or any of the

following matters, namely:—

(a) the times and places of meetings of the Authority and the

procedure to be followed at such meetings under sub-section (1) of

section 8, including quorum necessary for the transaction of

business;

(b) the transaction of business at the meetings of the Authority

under sub-section (4) of section 8;

****

(d) matters in respect of which register is to be maintained by the

W.P,(C) 7982/2013 and connected matters Page 13 of 68

Authority [under sub-clause (vii) of clause (b)] of sub-section (1) of

section 11;

(e) levy of fee and lay down such other requirements on fulfilment

of which a copy of register may be obtained [under sub-clause

(viii) of clause (b)] of sub-section (1) of section 11;

(f) levy of fees and other charges [under clause (c)] of sub-section

(1) of section 11;

Standards of Quality of Service (Duration of Advertisements in Television

Channels) Regulations, 2012 (Impugned Regulation of 2012)-

― 3. Duration of advertisements in TV channels.—(1) No broadcaster

shall carry in its broadcast of a programme, advertisements exceeding

twelve minutes in a clock hour and any shortfall of advertisement

duration in any clock hour shall not be carried over.

(2) The advertisements in the clock hour shall include all types of

advertisements including advertisements promoting the channel(s) of the

broadcaster.

Explanation: The clock hour shall commence from 00.00 of the

hour and end at 00.60 of the hour (example: 14.00 to 15:00 hours).‖

Standards of Quality of Service (Duration of Advertisements in Television

Channels) (Amendment) Regulations, 2013 (Impugned Regulation of

2013)-

―2. For regulation 3 of the Standards of Quality of Service (Duration of

Advertisements in Television Channels) Regulations, 2012 (15 of 2012)

(hereinafter referred to as the principal regulations), the following

regulation shall be substituted, namely:-

―3. Duration of advertisements in a clock hour.- No broadcaster shall,

in its broadcast of a programme, carry advertisements exceeding twelve

minutes in a clock hour.

Explanation: The clock hour means a period of sixty minutes

commencing from 00.00 of an hour and ending at 00.60 of the hour.

(example: 14.00 to 15:00 hours).‖

Article 14 of the Constitution of India

14. Equality before law.—The State shall not deny to any person

equality before the law or the equal protection of the laws within

the territory of India.

Article 19 of the Constitution of India

19. Protection of certain rights regarding freedom of speech,

etc.—(1) All citizens shall have the right—

(a) to freedom of speech and expression;

(g) to practise any profession, or to carry on any occupation, trade

or business.

[(2) Nothing in sub-clause (a) of clause (1) shall affect the

W.P,(C) 7982/2013 and connected matters Page 14 of 68

operation of any existing law, or prevent the State from making any

law, in so far as such law imposes reasonable restrictions on the

exercise of the right conferred by the said sub-clause in the

interests of 4 [the sovereignty and integrity of India], 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.]

(6) Nothing in sub-clause (g) of the said clause shall affect the

operation of any existing law in so far as it imposes, or prevent the

State from making any law imposing, in the interests of the general

public, reasonable restrictions on the exercise of the right

conferred by the said sub-clause, and, in particular, 1 [nothing in

the said sub-clause shall affect the operation of any existing law in

so far as it relates to, or prevent the State from making any law

relating to,—

(i) the professional or technical qualifications necessary for

practising any profession or carrying on any occupation, trade

or business; or

(ii) the carrying on by the State, or by a corporation owned or

controlled by the State, of any trade, business, industry or

service, whether to the exclusion, complete or partial, of citizens

or otherwise.]

Article 31C of the Constitution of India

31C. Saving of laws giving effect to certain directive principles.—

Notwithstanding anything contained in article 13, no law giving

effect to the policy of the State towards securing 4 [all or any of the

principles laid down in Part IV] shall be deemed to be void on the

ground that it is inconsistent with, or takes away or abridges any of

the rights conferred by 5 [article 14 or article 19;] 6 [and no law

containing a declaration that it is for giving effect to such policy

shall be called in question in any court on the ground that it does not

give effect to such policy]:

Provided that where such law is made by the Legislature of a State,

the provisions of this article shall not apply thereto unless such law,

having been reserved for the consideration of the President, has

received his assent.]

Article 39 of the Constitution of India

39. Certain principles of policy to be followed by the State.—The

State shall, in particular, direct its policy towards securing—

(b) that the ownership and control of the material resources of the

community are so distributed as best to subserve the common

good;

(c) that the operation of the economic system does not result in

the concentration of wealth and means of production to the

W.P,(C) 7982/2013 and connected matters Page 15 of 68

common detriment;

(Emphasis Supplied)

11. Since the Petitioners herein represent diverse categories of

broadcasters, namely, GECs, news channels and regional channels,

learned senior counsel for each category have advanced independent

submissions. However, in view of the substantial overlap in issues, the

same are being considered conjointly. For the sake of convenience,

W.P.(C) 4307/2021 is treated as the lead matter for news broadcasters,

W.P.(C) 739/2014 for regional broadcasters, and W.P.(C) 7983/2013

for GECs. The submissions advanced on behalf of Discovery

Communications India, as an intervener in W.P.(C) 7982/2013, shall,

also be dealt with separately.

B. CONTENTIONS ON BEHALF OF THE PARTIES:

12. This Court has heard learned senior counsel for the parties at

length, and with their able assistance, have perused the paperbook

alongwith the judgments and written submissions forming part of the

pleadings.

13. At the threshold, it may be noted that although Mr. Chetan

Sharma, learned ASG appearing on behalf of the Respondent/UOI,

has assailed the maintainability of the present petitions in his written

submissions, however, the said challenge was not raised before this

Court at the time of oral arguments. Accordingly, this Court is

consciously not dealing with the issue pertaining to the maintainability

of the petitions. Even otherwise, the present regulatory framework, by

its very design, imposes an immediate obligation and has a direct

bearing on the Petitioners herein, making the present petitions

maintainable.

W.P,(C) 7982/2013 and connected matters Page 16 of 68

14. Before proceeding to examine the arguments on the merits of

the case, we deem it appropriate to note that, as stated in preceeding

paragraphs of this judgment, three distinct classes of broadcasters

have been separately represented before this Court. Accordingly, the

contentions of the Petitioners are considered and addressed in four

corresponding segments, so as to ensure clarity, coherence, and

category-specific adjudication. Similarly, the submissions advanced

on behalf of the Union of India (UOI) and TRAI, as well as the

rejoinder arguments advanced in response thereto, are also dealt with

separately.

Submissions on behalf of News Broadcasters:

15. Mr. Arvind P. Datar, learned senior counsel appearing on behalf

of News Broadcasters, has made the following submissions:

15.1 At the outset, it has been highlighted that in 2017, TRAI issued

Interconnection Regulations and Tariff Order, imposing structured

price caps on television channels, including a ceiling of Rs. 19 per

channel and Rs. 12 for bouquet offerings, along with restrictions on

bouquet composition, discounting, promotional schemes, and

distribution arrangements. These regulations, however, came to be

upheld by the Hon‟ble Supreme Court in Star India (P) Ltd. v.

Department of Industrial Policy and Promotion

9

. It is their case that

the aforesaid regulation has already constrained the revenue streams of

broadcaster, particularly news channels, whose subscription rates are

substantially lower ranging between 25 paise to Rs. 3.5/- per month,

with several operating on a Free-to-Air (FTA) model.

9

(2019) 2 SCC 104

W.P,(C) 7982/2013 and connected matters Page 17 of 68

15.2 Against the aforesaid backdrop, it is the case of the News

Broadcasters that, after the imposition of the price cap over

subscription fee, the primary source of sustenance for channels alike is

the advertising revenue. However, an additional imposition of uniform

time ceiling of 12 minutes of advertisements per clock hour across all

time slots aversely impacts the commercial speech guaranteed under

Article 19(1)(a) of the Constitution.

15.3 Reliance is placed on the judgment of TATA Press Limited v

Mahanagar Telephone Nigam Limited

10

, to argue that in the said

judgment, the Hon‟ble Supreme Court, while dealing with the issue of

whether or not Telephone Nigam could restrain TATA Press from

publishing yellow page containing paid advertisements of business,

traders and association, held that commercial speech forms a part of

freedom of speech and expression provided under Article 19(1)(a) of

the Constitution, and advertisements cannot be denied protection

merely because they are issued by the businessmen.

15.4 Further, it has been argued that the restriction on duration of

advertisements by way of Impugned Rule is violative of Article

19(1)(a) of the Constitution, in light of the jurisprudence established

by the Supreme Court in Sakal Papers (P) Ltd. And Others v The

Union Of India

11

, Bennett Colemon & Co. v Union Of India

12

and

Hindustan Times & Ors. vs. State of UP

13

. A common thread running

through all the three decisions, as has been argued by the learned

senior counsel, is that the Hon‟ble Supreme Court has already settled

the law that any restriction either direct or indirect, on advertisement

10

(1995) 5 SCC 139

11

AIR 1963 SC 305

12

(1972) 2 SCC 788

13

(2003) 1 SCC 591

W.P,(C) 7982/2013 and connected matters Page 18 of 68

space or revenue, forming the primary source of media funding,

necessarily impacts the circulation and editorial freedom leading to an

infringement of Article 19(1)(a) of the Constitution.

15.5 On the strength of the aforesaid authorities, it has been urged

that if indirect impact on advertisement revenue is impermissible, a

direct restriction under Impugned Rule is a fortiori violative of Article

19(1)(a) of the Constitution. Further, it is contended that, the

Impugned Rule/Regulations alongwith the 2017 tariff and distribution

controls, imposes a dual restriction on revenue streams, rendering it

arbitrary under Articles 14 and 19(1)(a) of the Constitution. It has

been emphasized that the principles applicable to print media apply

with greater force to broadcasting, being a more potent medium of

expression.

15.6 It has been urged by learned senior counsel that the Impugned

Rule is violative of Article 14 of the Constitution on three grounds.

Firstly, it fails to differentiate between prime time and non-prime

time; secondly, it treats unequal entities as equals, thereby failing to

recognise the disparities in revenue models between news channels

and GEC/sports channels and between pay and FTA channels.

Thirdly, it fails to distinguish between commercial advertisements,

public service advertisements and self-promotional advertisements.

Therefore, it has been contended that the uniform cap imposed is

unreasoned and lacks a valid classification leading to violation of

Article 14 of the Constitution as held in Kunnathat Thathunni

Moopil Nair Vs State of Kerala

14

.

15.7 While highlighting that the Impugned Rule is disproportionate,

14

(1961) 3 SCR 77

W.P,(C) 7982/2013 and connected matters Page 19 of 68

the reliance placed by the UOI on pricing regulations of foreign

jurisdictions, is distinguished contending that the said data pertains to

the year 2013 and the economic as well as regulatory conditions of

foreign countries are not similar to that of India. By relying upon the

judgments in Star India Pvt Limited Vs Telecom Regulatory

Authority of India

15

and Star India (P) Limited (Supra), it has been

submitted that, lower subscription charges enhance viewership and

public access, especially for FTA and low-cost channels. However,

sufficient advertisement time is essential to sustain affordability and

ensure wider dissemination of television content.

Submissions on behalf of GECs/Broadcasters:

16. Mr. Kunal Tandon, learned senior counsel appearing on behalf

of B4U Broadband (India) Pvt. Ltd., in addition to the arguments

made by learned senior counsel for news broadcasters, has made the

following submissions on the merits of the case:

16.1 An additional reliance has been placed on the judgment in

Indian Express Newspaper (Bombay) Pvt. Ltd. v Union of India

16

, to

argue that all commercial advertisements cannot be denied the

protection under Article 19(1)(a) of the Constitution merely because

the same is issued by a businessman.

16.2 Reference has been made to Section 2(g) of the Act of 1995, to

argue that the definition of programme provided therein also includes

advertisements, which form a part of content, as such the Impugned

Rule and Regulations is violative of Article 19(1)(a) and (g) of the

Constitution. It is urged that the restriction imposed by TRAI on the

15

(2007) SCC Online Del 951

16

1985 (1) SCC 641

W.P,(C) 7982/2013 and connected matters Page 20 of 68

advertisement does not fall within either of the reasonable restrictions

enshrined under Articles 19(2) and 19(6) of the Constitution.

16.3 Further reliance has been placed on Ministry of Information

and Broadcasting, Govt. of India vs. Cricket Association of Bengal

& Ors.

17

, to argue that merely because an organisation may profit

from an activity whose character is predominantly covered under

Article 19(1)(a) of the Constitution, it would not convert the activity

into one involving Article 19(1)(g) of the Constitution.

16.4 Learned senior counsel has also argued that TRAI lacks the

jurisdiction to regulate advertisements. In support of this contention,

reference is made to its functions under Section 11(1)(b)(i) and (v) of

the Act of 1997, to argue that such Regulations can only be brought by

the UOI and not TRAI.

16.5 Reference is also made to Section 2(1)(k) of the Act of 1997, to

argue that the role of TRAI is limited to technical and interconnection

aspects, while content regulation, including advertisements, falls

under the Programme and Advertisement Codes of Rules of 1994. It is

his case that the broadcasting comprises of two distinct spheres,

namely, the aspect of transmission, reception as well as dissemination

of signals and the aspect of programming services, i.e. the content

shown on channels.

16.6 While dealing further with the aforesaid aspects, it has been

argued that while the former falls within the domain of TRAI, the

latter falls outside the scope of its regulatory jurisdiction, and as such

Quality of Service (QoS) under Section 11(1)(b)(v) of the Act of

17

1995 (2) SCC 161

W.P,(C) 7982/2013 and connected matters Page 21 of 68

1997, cannot be expanded to include regulation of viewing experience

or advertisement time.

Submissions on behalf of Regional Channels/Broadcaster:

17. Mr. Rajshekhar Rao, learned senior counsel appearing on behalf

of Raj Television Pvt. Ltd., a regional channel of Tamil Nadu, in

addition to the aforesaid averments, has made the following

submissions on the merits of the case:

17.1 At the outset, it has been argued that with subscription revenue

being negligible, the Petitioner, a regional broadcaster with a

predominantly Tamil-speaking audience, derives the overwhelming

part of its income from advertisements. Thus, any restriction on the

duration of advertisements directly threatens its economic viability

and continued existence as a broadcaster.

17.2 It is contended that the functions under Section 11(1)(a) of the

Act of 1997, are purely recommendatory, either suo motu or on a

request from the licensor (Ministry of Information and Broadcasting).

It is urged that TRAI cannot use these to directly regulate or set

binding norms regarding the duration and format of advertisements,

nor can it convert a recommendatory function into a legislative power.

17.3 It has been argued that the impugned subordinate legislation is

„law‟ under Article 13 of the Constitution and as such is void as it

infringes Article 19(1)(a) of the Constitution, as reiterated in

Madhyamam Broadcasting Limited v Union of India

18

. In addition to

the aforesaid, it has been argued that the measures taken by TRAI fail

the proportionality test as no reasonable restriction under Article 19(2)

18

2023 SCC OnLine SC 366

W.P,(C) 7982/2013 and connected matters Page 22 of 68

of the Constitution is clearly established.

17.4 Learned senior counsel also argued that the consultation process

by TRAI is vitiated by non-transparency and non-application of mind.

Despite stakeholder consultations, the final decision lacks reasoned

justification for the 12-minute per clock-hour time ceiling and the

rejection of objections by TRAIs. Reliance is placed on Cellular

Operators Association of India v Telecom Regulatory Authority of

India

19

, to contend that regulatory decisions must be reasoned,

transparent, and responsive to stakeholder inputs, which requirement

is argued to be not satisfied in the present case.

17.5 It is the case of regional channels that the Impugned Rule and

Regulations fail constitutional scrutiny as they satisfy the well-settled

tests evolved by the Courts for determining infringement of Article

19(1)(a) of the Constitution, namely the „proximate effect / direct and

inevitable consequence’ test, the „direct effect and qualitative–

quantitative impact‟ test, and the doctrine of interference with

essential attributes of free speech. Reliance has been placed on

Kaushal Kishor v. State of Uttar Pradesh

20

, to argue that the

reasonable restrictions provided under Article 19(2) of the

Constitution are exhaustive and there cannot be any additional

restrictions other than already enumerated therein.

17.6 Firstly, applying the proximate effect or direct and inevitable

consequence test as laid down in Express Newspaper Pvt. Ltd. v

Union of India

21

and reiterated in Anuradha Bhasin v Union of

19

(2016) 7 SCC 703

20

(2023) 4 SCC

21

1959 SCR 12

W.P,(C) 7982/2013 and connected matters Page 23 of 68

India

22

, it is argued that where the inevitable and proximate

consequence of a measure is curtailment of circulation, reach, or

financial viability of a medium, such measure squarely falls within

Article 19(1)(a) of the Constitution. It is their case that, the impugned

actions of TRAI has direct and inevitable consequence on reduction of

advertisement revenue, thereby leading to increase in subscription

costs while simultaneously diminishing audience reach.

17.7 Secondly, reliance is placed on Bennett Coleman (Supra), for

application of direct effect as well as qualitative and quantitative test

formulated therein. The Court in the said judgment held that freedom

of the press is both qualitative and quantitative, encompassing not

merely content but also circulation and economic capacity. It is

contended that the impugned action by TRAI directly affects the

revenue structure of broadcasters and thereby their capacity to produce

and disseminate content, with freedom of speech being impaired in

both its qualitative and quantitative dimensions.

17.8 Thirdly, reliance is placed on Sakal Papers (Supra), to submit

that where a regulatory measure strikes at an essential attribute of the

medium, such as circulation or advertisement space which sustains it,

such Regulations constitute a direct infringement of Article 19(1)(a)

of the Constitution. Against the aforestated, it is contended that the

Impugned Rules 7(11), by restricting advertisement inventory, directly

undermines the financial foundation of broadcasting and thus

impermissibly interferes with an essential facet of expressive freedom.

18. Learned counsel appearing for the Intervener, Discovery

22

2020 SCC OnLine SC 25

W.P,(C) 7982/2013 and connected matters Page 24 of 68

Communications India, while emphasising its position as a producer

of niche content, has broadly adopted the submissions already

advanced by the Petitioners hereinabove. In view of such substantial

overlap, the said contentions are not being reiterated for the sake of

brevity but are expressly adopted for the purposes of adjudication as

and when deemed necessary.

Response on behalf of UOI:

19. Learned ASG, while controverting the submissions made by the

learned senior counsel for the Petitioners, has made the following

submissions:

19.1 While substantiating the rationale for quantitative restriction of

12 minutes per clock hour on advertisements, it has been argued that

Advertisement in commercial sense means to draw attention to goods

for sale or services offered. Since the advertisement revenue is the

major source of revenue by broadcasters, they deliberately lengthen

the duration of commercial breaks, thereby reducing the quality of

viewing experience. It has been argued that Impugned Rule 7(11) is

the sole provision which regulates the advertising timing to enhance

the quality of experience in accordance with International

Telecommunication Union Telecommunication Standardization

Sector, which defined quality of experience, as the overall

acceptability of an application or service, as perceived by the end-

user. Thus, the duration of advertisements introduced by Impugned

Rule and Regulations, eradicates the adverse impact by enhancing the

quality of viewing experience of the consumers.

19.2 Reference has also been made to the regulations on

W.P,(C) 7982/2013 and connected matters Page 25 of 68

advertisement duration imposed in several countries, a tabular format

of the same has been provided hereinbelow:

S. No. Country Advertisement duration/hour

1. Argentina 12 Minutes (10 Minutes: Commercial; 2

minutes In-Programme)

SCA Law

2. Croatia 12 Minutes (Article 32 of The

Electronic Media Act)

3. Canada 12 Minutes on FTA, while

advertisement is totally prohibited on

pay channels

As per Competition Act

4. France Targeted advertising shall not exceed a

daily average of 4 min/hr

(Force of Decree n02020-983 of5

August 2020)

5. Germany 12 Minutes with a minimum of 20

minutes of programming in between

interruptions.

The Unfair Competition Act (UWG)

6. Ireland 12 Minutes

10 Min for children's programmes

Broadcasting Authority of Ireland

7. Italy 5 to 10 Minutes

Audiovisual Media Services Code

8. Norway 09 Minutes (15% per Hour) Norwegian

Media Authority

9. United Kingdom 7 minutes to 12 minutes I British

broadcasting regulator Of com

10. Indonesia (12 Minutes) 20% per hour Indonesian

Broadcasting Commission (KPI).

11. Denmark 15 per cent of the individual licensee's

daily broadcasting time, and a

maximum of 12 minutes per hour.

The Radio and Television Broadcasting

Act

19.3 As a foundational objection, it has been argued that there exists

no Fundamental Right (FR) guaranteed to the Petitioners under Article

W.P,(C) 7982/2013 and connected matters Page 26 of 68

19(1)(a) of the Constitution to establish, maintain or operate

broadcasting services, nor do they possess any unfettered right to

access or use airwaves, which constitute scarce public property. In this

regard, reliance is placed on Secy, Ministry of Information &

Broadcasting (Supra), to argue that the Hon‟ble Supreme Court in the

said judgment, has held that although right to receive and impart

information is protected under Article 19(1)(a) of the Constitution, the

use of airwaves, being a public property and limited in nature, is

inherent to the State regulation. Additionally, reference is also made to

highlight that the Court in the aforesaid judgment also held that no

individual has a vested right to utilise such resources at will, and that

access thereto can only be regulated in accordance with law and in

public interest.

19.4 Reliance is also placed on Association of Unified Tele Services

Providers v. Union of India

23

and Union of India v Assn of Unified

Telecom Service Providers of India

24

, to argue that natural and

material resources of the community fall within the ambit of Article

39(b) of the Constitution, and as such their distribution is subject to

constitutional regulation in furtherance of the common good.

Accordingly, it is argued that access to broadcasting through airwaves

is a regulated privilege governed by statutory framework and

constitutional policy, and not a FR enforceable under Article 19(1)(a)

of the Constitution.

19.5 It has been argued that the plea taken by the Petitioner that the

imposing of uniform cap of 12 minutes per clock hour will lead to

revenue loss is misplaced. It has been stated that the Impugned Rule

23

2014 6 SCC 110

24

2020 3 SCC 110

W.P,(C) 7982/2013 and connected matters Page 27 of 68

operates across all broadcasters without regulating the pricing of

advertisement slots, which remain entirely market driven. In a

competitive ecosystem, advertisement rates are determined by demand

and viewership, and therefore the time cap does not ipso facto

diminish revenue.

19.6 Additionally, it is contended that the broadcasters possess

multiple revenue streams and the allegation of a revenue cap is

factually erroneous. Reference is made to the Tariff Order of 2017 to

argue that it does not impose any absolute price ceiling on channels; it

only stipulated conditional requirements where bouquets are offered

including pricing thresholds and composition norms. Further, it has

been clarified that even within the said framework, broadcasters are

free to price channels above the prescribed threshold when offered on

a-la-carte basis.

19.7 Reliance is placed upon Star India (P) Ltd. (Supra), to argue

that the aforesaid position with respect to fixing of subscription fee as

introduced by way of Regulation and Tariff Order of 2017 has been

recognised by the Hon‟ble Supreme Court. The Court retained

complete freedom of broadcasters to fix subscription prices,

particularly for a-la-carte offerings, while highlighting that the

regulatory measures merely ensure a balance between consumer

interest and fair competition.

19.8 Reliance placed by learned senior counsels for the Petitioners

on the judgments of Sakal Papers (Supra), Bennett Coleman (Supra),

Indian Express (Supra) and Hindustan Times (Supra), has also been

distinguished by the learned ASG. In substance, it has been argued

that the reliance placed on the aforesaid precedents concerning print

W.P,(C) 7982/2013 and connected matters Page 28 of 68

media is wholly inconceivable, since there is no parity in facts or

regulatory context. It has been contended that the print and electronic

media operate in distinct domains, warranting different considerations.

Drawing the attention of this Court to the distinct factual matrix of the

cited precedents, it has been argued that the measures impugned

therein directly curtailed core facets of free speech such as page limits,

pricing, ownership and newsprint supply. In contrast, the present

impugned framework imposes no restriction on broadcasting content,

duration, reach or subscription pricing.

19.9 In view of the aforesaid, it is contended that the 12-minute

ceiling on advertisements does not violate Article 19(1)(a) of the

Constitution, since the broadcasters retain freedom to disseminate

content for the remaining 48 minutes of every hour, as the restriction

is confined solely to advertisement time without impinging the

essential exercise of free speech.

19.10 It has been contended that the Petitioners‟ invocation of the

doctrine of commercial speech and the asserted exhaustiveness of

Article 19(2) of the Constitution is misplaced. It is well-settled that

commercial speech does not enjoy absolute protection under Article

19(1)(a) of the Constitution. Reference is made to the judgment in

Hamdard Dawakhana v. Union of India and Ors.

25

, to argue that the

Hon‟ble Supreme Court has excluded misleading and objectionable

advertisements from constitutional protection, a principle

subsequently followed in the judgment dated 07.02.2008 bearing W.P.

(C) 18761 of 2005 titled Mahesh Bhatt v. Union of India.

Additionally, it is contended that the decision in Tata Press Ltd.

25

AIR 1960 SC 554

W.P,(C) 7982/2013 and connected matters Page 29 of 68

(Supra) does not confer an unqualified right to advertise but

recognises such speech as subject to reasonable regulation in public

interest.

19.11 Reliance has also been placed on Kaushal Kishor (Supra) to

argue that, the Supreme Court in the said judgment, while holding that

restrictions under Article 19(2) of the Constitution are exhaustive,

Ramasubramanian, J. was pleased to rely upon the judgments of

Sahara India Real Estate Corp. Ltd. v. SEBI

26

and Asha Ranjan v.

State of Bihar

27

to hold that the balancing of rights can always be

done by the Court by applying the test of 'paramount collective

interest.

19.12 Without prejudice, it is argued that the Impugned Rule and

Regulations, would, in any event, satisfy the test of reasonableness

under Article 19(2) of the Constitution. As recognised in Sahara

India (Supra) and Dharam Dutt v. Union of India

28

, where the

exercise of free speech intersects with competing public interests,

calibrated and proportionate restraints may legitimately be imposed.

In the present case, the time ceiling on advertisement duration

advances viewer protection, preserves the quality of viewing

experience, and ensures that airwaves subserve the larger public good

rather than being driven solely by revenue considerations.

19.13 Additionally, learned ASG has also argued that the Impugned

Rule is protected by Article 19(2) of the Constitution, as it ensures

balanced use of public resources and is justified in the interest of

„public order‟. In this regard, reliance has been placed on Telecom

26

(2012) 10 SCC 603

27

2017 4 SCC 397

28

(2004) 1 SCC 712

W.P,(C) 7982/2013 and connected matters Page 30 of 68

Watchdog v Union of India

29

, wherein a legislative measure

restricting unsolicited commercial communications was challenged

and was inter alia sought to be justified on the ground of public order

under Article 19(2) of the Constitution. This Court observed that in

any event the State was fully within its powers to prevent the creation

of public nuisance by unrestricted and unlimited commercial

communications.

19.14 Lastly, a reference is made to the observations of the Hon‟ble

Supreme Court in A. Suresh & Ors. v. State of Tamil Nadu & Anr.

30

to argue that the activity of the broadcaster to provide entertainment is

a combination of two rights i.e. Speech and Business as referred to

under Article 19(1)(a) and (g) of the Constitution, respectively. In this

regard, the Court had also observed that where the freedom of speech

gets intertwined with business it undergoes a fundamental change and

its exercise has to be balanced against societal interests.

Submission on behalf of TRAI:

20. In addition to the arguments advanced by the learned ASG, Mr.

Ashish Mehta, learned counsel appearing for TRAI has made the

following submissions:

20.1 While distinguishing the effect of print media and broadcast

media, it has been argued that television, unlike print media, operates

in a time-bound format where viewers cannot avoid advertisements

inserted mid-programme, including scrolls and overlays. Such

distinction necessitated the regulatory intervention in the interest of

viewers.

29

2012 OnLine Del 3601

30

(1997) 1 SCC 319

W.P,(C) 7982/2013 and connected matters Page 31 of 68

20.2 It has been argued that the Impugned Regulations effectuating

the time ceiling for advertisement in the Impugned Rule, were

introduced pursuant to widespread consumer complaints and in

exercise of TRAI‟s statutory mandate under Sections 11 and 36 of the

Act of 1997, to ensure compliance with license conditions and

maintain QoS. Thus, the prescribed time ceiling directly addresses

excessive commercial interruptions that degrade viewing experience.

Rejoinder on behalf of News Broadcasters:

21. Mr. Arvind P Datar, learned senior counsel, in his rejoinder, has

contended that the reliance placed by the UOI on various judgments is

misconceived, as none governs the issue of time ceiling of

advertisement on broadcasting, thereby diluting the protection under

Articles 14 and 19(1)(a) of the Constitution. In support of the

aforesaid, following submissions have been made:

21.1 Reliance placed on Secy, Ministry of Information &

Broadcasting (Supra), has been distinguished, while contending that

the same concerns allocation and regulation of airwaves, not content-

based advertisements caps or revenue regulation of broadcasters. It is

argued that the said judgment itself confines restrictions to Article

19(2) of the Constitution and as such public interest cannot operate as

an independent ground for curtailing speech beyond the provided text.

21.2 Reliance on Sahara India (Supra) has also been argued to be

misplaced, on the ground that it dealt with postponement orders under

contempt jurisdiction and does not support expansion of restrictions

on speech under a broad “public interest” standard.

21.3 Star India Private Limited (Supra), has been argued to be

W.P,(C) 7982/2013 and connected matters Page 32 of 68

inapplicable as it concerned tariff Regulation in non-news channels

and was decided in the absence of empirical evidence demonstrating

adverse impact on broadcasters. Whereas, the present case involves

news and FTA channels, where advertisement revenue constitutes the

primary revenue stream, duly demonstrated by financial data.

21.4 Lastly, it has been contended that the Telecom Watchdog

(Supra) dealt with SMS spam regulation under telecom consumer

protection frameworks, not broadcasting content regulation or

advertisement caps; hence, it is irrelevant.

Rejoinder on behalf of Regional Channels/Broadcasters:

22. Mr. Rajshekhar Rao, learned senior counsel, in his rejoinder

arguments, while highlighting that the Impugned Rule is

unconstitutional, arbitrary and unsupported by evidence, has made the

following submissions:

22.1 It is contended that the plea of public interest is misconceived,

inasmuch as tariff Regulation and bouquet pricing already operate to

safeguard consumer interest. A further quantitative cap on

advertisement time constitutes duplicative and excessive regulation,

imposing an unjustified fetter on commercial speech.

22.2 While distinguishing the reliance placed on Secy, Ministry of

Information and Broadcasting (Supra), it has been contended that

while airwaves are public property, the Impugned Rule does not

concern spectrum allocation but directly regulates content by capping

advertisement time.

W.P,(C) 7982/2013 and connected matters Page 33 of 68

C. ANALYSIS AND REASONING:

23. This Court has heard learned senior counsels appearing on

behalf of the parties and, with their able assistance, has perused the

paperbook along with the written submissions placed on record. Upon

consideration of pleadings and submissions, two principal questions

arise for the consideration of this Court, which are as follows:

I. Whether the introduction of Regulation 3 of the Impugned

Regulation of 2012, fall within the statutory competence of TRAI?

II. Whether the time ceiling of 12 minutes per clock hour on

advertisements is violative of protection under Articles 14 and 19 of

the Constitution?

I. WHETHER THE INTRODUCTION OF REGULATION 3

OF THE IMPUGNED REGULATION OF 2012, FALL WITHIN

THE STATUTORY COMPETENCE OF TRAI?

24. Section 11(1)(b)(v) of the Act of 1997 entrusts TRAI with the

regulatory power to lay down the standards of QoS to be provided by

the service providers, in order to protect the interest of consumers of

telecommunication services. Whereas, Section 36 of the Act of 1997

enables TRAI to make regulations consistent with the Act and the

rules made thereunder, in order to carry out the purposes of the Act.

25. In the aforesaid backdrop, the subsequent notification issued in

2004 assumes significant importance in shaping the scope and

exercise of such regulatory powers. By virtue of the said notification,

the Central Government expanded the definition of

telecommunication service provided under Section 2(1)(k) of the Act

of 1997, to expressly include broadcasting as well as cable services.

W.P,(C) 7982/2013 and connected matters Page 34 of 68

This enlargement of the definitional ambit effectively brought the

aforestated sectors within the regulatory purview of TRAI, thereby

enabling it to exercise its statutory powers and discharge its functions

in relation to broadcasting and cable services.

26. Having delineated the power of TRAI to act as a regulatory

body over broadcasting and cable services, we shall now proceed to

examine whether TRAI has acted within its statutory power by

introducing Impugned Regulation of 2012, to monitor the

advertisement time as prescribed therein.

27. The Statement of Objects and Reasons of the Act of 1997,

underlying the establishment of TRAI underscores that the Authority

as an independent regulatory body is entrusted with the responsibility

of acting as a watchdog for the telecommunications sector. Its

mandate includes the protection and promotion of consumer interests,

the facilitation of fair competition, and the progressive alignment of

telecommunication services in India with globally accepted standards.

The particular emphasis on transparency, accountability, and orderly

sectoral growth further reinforces the breadth of TRAI‟s regulatory

remit. The relevant excerpts are reproduced hereunder-

―In the context of the National Telecom Policy, 1994, which amongst

other things, stresses on achieving the universal service, bringing the

quality of telecom services to world standards, provisions of wide

range of services to meet the customers' demand at reasonable price,

and participation of the companies registered in India in the area of

basic as well as value added telecom services as also making

arrangements for protection and promotion of consumer interest

and ensuring fair competition, there is a felt need to separate

regulatory functions from service providing functions which will be in

keeping with the general trend in the world. In the multi-operator

situation arising out of opening of basic as well as value added

services in which private operator will be competing with Government

operators, there is a pressing need for an independent telecom

W.P,(C) 7982/2013 and connected matters Page 35 of 68

regulatory body for regulation of telecom services for orderly and

healthy growth of telecommunication infrastructure apart from

protection of consumer interest.‖

4. The powers and functions of the Authority, inter alia, are—

(i) ensuring technical compatibility and effective inter-relationship

between different service providers;

(ii) regulation of arrangement amongst service providers of sharing

their revenue derived from providing telecommunication services;

(iii) ensuring compliance of licence conditions by all service

providers;

(iv) protection of the interest of the consumers of telecommunication

service;

(v) settlement of disputes between service providers;

(vi) fixation of rates for providing telecommunication service within

India and outside India;

(vii) ensuring effective compliance of universal service obligations.

6. The Authority will have to maintain transparency while exercising

its powers and functions. The powers and functions would enable the

Authority to perform a role of watchdog for the telecom sector in an

effective manner.

(Emphasis Supplied)

28. Similarly, the Preamble of Act of 1997 reinforces the

aforestated position by expressly stipulating that the legislation seeks

to regulate telecommunication services, adjudicate disputes, protect

the interests of both service providers and consumers, while ensuring

the orderly growth of the sector, which is as follows:

―An Act to provide for the establishment of the

2

[Telecom Regulatory

Authority of India and the Telecom Disputes Settlement and Appellate

Tribunal to regulate the telecommunication services, adjudicate

disputes, dispose of appeals and to protect the interests of service

providers and consumers of the telecom sector, to promote and

ensure orderly growth of the telecom sector] and for matters

connected therewith or incidental thereto.‖

(Emphasis Supplied)

29. The Statement of Objects and Reasons, when read

harmoniously with the Preamble, clearly reflects the legislative intent

W.P,(C) 7982/2013 and connected matters Page 36 of 68

underlying the establishment of the TRAI. It indicates that TRAI was

constituted to discharge regulatory functions aimed at maintaining an

equitable balance between the interests of consumers and service

providers, while simultaneously ensuring that the quality and

standards of telecommunication services progressively align with

universally accepted benchmarks. To put it succinctly, the role of

TRAI is not merely supervisory or administrative in nature, but

substantively regulatory, with a clear consumer centric orientation.

30. The jurisdiction of TRAI to regulate the telecom sector also

finds support in the judgment of the Supreme Court in Union of India

v Association of Unified Telecom Service Provider of India

31

,

wherein the Court while distinguishing between the functions of TRAI

envisaged under Section 11 of the Act of 1997, highlighted that the

powers exercised by TRAI under Section 11(1)(b), are not merely

recommendatory in nature, rather is binding on the licensee. The

relevant paragraph is reproduced hereunder:

―45. The scheme of the TRAI Act therefore is that TRAI being an

expert body discharges recommendatory functions under clause (a) of

sub-section (1) of Section 11 of the TRAI Act and discharges

regulatory and other functions under clauses (b), (c) and (d) of sub-

section (1) of Section 11 of the TRAI Act. TRAI being an expert body,

the recommendations of TRAI under clause (a) of sub-section (1) of

Section 11 of the TRAI Act have to be given due weightage by the

Central Government but the recommendations of TRAI are not

binding on the Central Government. On the other hand, the

regulatory and other functions under clauses (b), (c) and (d) of sub-

section (1) of Section 11 of the TRAI Act have to be performed

independent of the Central Government and are binding on the

licensee subject to only appeal in accordance with the provisions of

the TRAI Act.‖

(Emphasis Supplied)

31

(2020) 3 SCC 525

W.P,(C) 7982/2013 and connected matters Page 37 of 68

31. Turning now to the challenge raised pertaining to the imposition

of „per clock hour‟ regime under Impugned Regulation of 2012. It

may be noticed that in a medium such as television, where content

unfolds in real time and interruptions are inescapably experienced, the

frequency, duration as well as density of advertisement breaks are

integral to the quality of the viewing experience, thereby directly

affecting the interests of consumers, who does not possess the power

to skip or fast forward these advertisements. It is pertinent to highlight

that excessive or uneven commercial intrusion is not merely an

economic concern, rather it constitutes a direct impairment of the right

of consumers to a fair and reasonable viewing experience.

32. At this stage, we also deem it appropriate to briefly examine the

origin and essence of the Impugned Rule. The Act of 1995 provides a

clear and enabling statutory architecture for regulation of both

programmes and advertisements. Section 2(g) of the Act of 1995,

while defining the scope of a programme, expressly includes

advertisements within its ambit. Additionally, Sections 5 and 6 of the

Act of 1995, mandate conformity with the prescribed Programme

Code and Advertisement Code, respectively. Accordingly, the

simultaneous incorporation of Advertisement Code under Rule 7 of

the Rule of 1994, stands firmly anchored within, and derives

legitimacy from, the parent enactment.

33. The Impugned Rule, which prescribes a ceiling of 12 minutes

per hour on advertisements, is a classic conceptualization of

code-based normative standard that delineates the permissible

quantum of advertisements within a defined temporal framework.

Learned senior counsels representing the Petitioners, while

W.P,(C) 7982/2013 and connected matters Page 38 of 68

challenging the validity of the Impugned Rule, have failed to draw the

attention of this Court to any statutory text suggesting that the

Advertisement Code is confined merely to qualitative or content-based

restrictions alone. On the contrary, a temporal limitation on the

quantum of advertisements is inherent in the very logic of regulating

advertising within a medium structured by time.

34. Coming back to the argument of the Petitioners pertaining to the

power of TRAI to introduce the Impugned Regulation of 2012, it may

be relevant to highlight that TRAI‟s statutory power to regulate the

prescribed time for advertisements can be deduced from Section

11(1)(b)(v) of the Act of 1997, a bare reading of which makes it

evident that TRAI while discharging its functions as envisaged in the

said provision, is also provided with a responsibility to lay down the

standards of QoS, which undisputedly, would also be inclusive of

enhancement of quality of viewer‟s experience. Whereas, a perusal of

Section 36 of the Act of 1997, would indicate that the TRAI, as a

regulatory authority, is envisaged with the power to make Regulation

and Rules, which shall serve the purpose of the Act of 1997. Thus, the

Impugned Regulation of 2012 represent a legitimate exercise of

delegate authority. It is the responsibility of TRAI to ensure that QoS

is maintained by the broadcasters which includes viewer experience,

once the viewers interest is to be kept in view, then the delicate

balance between the interest of broadcasters and the consumers is to

be maintained.

35. In view of the aforestated, the measure taken by TRAI to limit

the advertisements to 12 minutes per clock hour, is in pursuance of the

recognised QoS objective of TRAI, aimed at reducing excessive

W.P,(C) 7982/2013 and connected matters Page 39 of 68

commercial breaks and preventing the artificial clustering of

advertisements, in order to ensure a more even and rational

distribution of advertising load across broadcast time. The Impugned

Regulation of 2012 serves to enhance the overall viewing experience

while promoting regulatory uniformity across broadcasters.

36. Accordingly, it would be incorrect to state that the power of

TRAI to regulate QoS is a narrow, technical or engineering-centric

function as has been argued by learned senior counsels appearing for

the Petitioners. On the contrary, it is a dynamic, evolving and living

mandate, encompassing all facets that materially shape consumer

experience. The regulation imposed by way of fixing an advertisement

duration, in a time-bound broadcast medium is manifestly one such

facet.

37. Therefore, in light of the aforesaid, the Impugned Regulation of

2012 cannot be stated to be excessive, they constitute a measured

exercise of statutory power, harmonising, the legislative intent of the

Act of 1995 with the consumer-centric regulatory framework provided

under the Act of 1997, and as such the Impugned Regulation of 2012

falls well within the bounds of legislative competence of TRAI.

II. WHETHER THE TIME CEILING OF 12 MINUTES PER

CLOCK HOUR ON ADVERTISEMENTS IS VIOLATIVE OF

PROTECTION UNDER ARTICLES 14 AND 19 OF THE

CONSTITUTION?

38. Since the present challenge raises a multi-layered question at

the intersection of free speech, business rights, and regulation of a

public resource, we deem it appropriate to structure this part of

W.P,(C) 7982/2013 and connected matters Page 40 of 68

analysis under the following four sub-issues:

a. Public character of spectrum and State‟s power to regulate the

same;

b. Whether the rights of broadcasters argued under Article 14 and

Article 19 of the Constitution subserve the benefit of public at large?

c. Judgments forming part of core contentions of the Petitioners

are distinguishable;

d. Consultation, Transparency and Application of Mind by TRAI.

(a.) Public character of spectrum and State’s power to regulate

the same

39. At the outset, we deem it appropriate to briefly delineate the

evolution and operational architecture of broadcasting and cable

services in India, tracing their progression across technological

paradigms.

40. In its earliest form, television transmission was carried out

through terrestrial broadcasting, wherein television stations

disseminated signals using high-powered radio waves in the Very

High Frequency (VHF) or Ultra High Frequency (UHF) bands,

received by individual antennas, thereby constituting the traditional

FTA method, marking the genesis of broadcast dissemination. The

above-stated form of transmission was followed by the emergence of

cable television networks, which marked a significant shift from over-

the-air transmission to a guided physical delivery system. Under the

said mode of transmission, signals were transmitted directly to

television sets through wired infrastructure, typically coaxial or fibre-

optic cables, thereby enhancing signal quality and expanding the

W.P,(C) 7982/2013 and connected matters Page 41 of 68

channels capacity as provided under the said network.

41. The next phase of transmission witnessed the emergence of

satellite television systems, namely, Direct Broadcast Satellite (DBS)

or Direct to Home (DTH), wherein signals were uplinked from a

broadcast centre to geostationary satellites and thereafter downlinked

back to earth for reception. This model enabled wide-area coverage,

transcending geographical limitations and significantly expanding

access. The most recent evolution in transmission is reflected in

Internet Protocol Television (IPTV), wherein content is delivered

through broadband or fibre-based internet networks, representing the

convergence of broadcasting with digital communication

technologies.

42. Notwithstanding the diversity in the modes of transmission,

which has been evolving with the passage of time, a common and

unifying thread binding all forms pertains to the reliance on airwaves

and frequency for the dissemination of signals in each of the forms

delineated hereinabove. Each of these systems, either directly or

indirectly, rely upon the access to airwaves and frequency, which

constitutes as a limited public property and shall be used in the best

interest of the society. The aforestated position stands recognised by

the Supreme Court in Secy., Ministry of Information & Broadcasting

(Supra), wherein it was held that airwaves are public property and

their use must be regulated by a public authority in the interest of the

public at large. The relevant excerpt of the said judgment is

reproduced hereunder-

122. 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

W.P,(C) 7982/2013 and connected matters Page 42 of 68

the public and to prevent the invasion of their rights. Since the

electronic media involves the use of the airwaves, this factor creates

an inbuilt restriction on its use as in the case of any other public

property.‖

(Emphasis Supplied)

43. The aforestated position has further emerged clearly from the

decision of the Supreme Court in Centre for Public Interest

Litigation and Others v Union of India and Others

32

, wherein the

Court while deliberating upon the definition of natural resources, held

that Spectrum constitutes as a scarce, finite and renewable natural

resource. The Court further highlighted that such resources vest in the

people, with the State acting as a trustee, and that their allocation must

conform to the principles of equality, transparency, and public

interest, consistent with the mandate of Article 39(b) of the

Constitution. The relevant paragraphs are reproduced hereunder:

―74. At the outset, we consider it proper to observe that even though

there is no universally accepted definition of natural resources, they

are generally understood as elements having intrinsic utility to

mankind. They may be renewable or non-renewable. They are thought

of as the individual elements of the natural environment that provide

economic and social services to human society and are considered

valuable in their relatively unmodified, natural form. A natural

resource's value rests in the amount of the material available and the

demand for it. The latter is determined by its usefulness to production.

Natural resources belong to the people but the State legally owns

them on behalf of its people and from that point of view natural

resources are considered as national assets, more so because the

State benefits immensely from their value.

75. The State is empowered to distribute natural resources. However,

as they constitute public property/national asset, while distributing

natural resources the State is bound to act in consonance with the

principles of equality and public trust and ensure that no action is

taken which may be detrimental to public interest. Like any other

State action, constitutionalism must be reflected at every stage of the

distribution of natural resources. In Article 39(b) of the Constitution

it has been provided that the ownership and control of the material

resources of the community should be so distributed so as thy best

subserve the common good, but no comprehensive legislation has

32

(2012) 3 SCC 1

W.P,(C) 7982/2013 and connected matters Page 43 of 68

been enacted to generally define natural resources and a framework

for their protection. Of course, environment laws enacted by

Parliament and State Legislatures deal with specific natural

resources i.e. forest, air, water, coastal zones, etc.

76 The ownership regime relating to natural resources can also be

ascertained from international conventions and customary

international law, common law and national constitutions. In

international law, it rests upon the concept of sovereignty and seeks to

respect the principle of permanent sovereignty (of peoples and

nations) over (their) natural resources as asserted in the 17th Session

of the United Nations General Assembly and then affirmed as a

customary international norm by the International Court of Justice in

the case of Democratic Republic of Congo v. Uganda. Common law

recognises States as having the authority to protect natural

resources insofar as the resources are within the interests of the

general public. The State is deemed to have a proprietary interest in

natural resources and must act as guardian and trustee in relation

to the same. Constitutions across the world focus on establishing

natural resources as owned by, and for the benefit of, the country.

In most instances where constitutions specifically address ownership

of natural resources, the sovereign State, or, as it is more commonly

expressed, ―the People‖, is designated as the owner of the natural

resources.

77. Spectrum has been internationally accepted as a scarce, finite

and renewable natural resource which is susceptible to degradation

in case of inefficient utilisation. It has a high economic value in the

light of the demand for it on account of the tremendous growth in

the telecom sector. Although it does not belong to a particular State,

right of use has been granted to the States as per international

norms.‖

(Emphasis Supplied)

44. Further, the Supreme Court in its judgment in Property Owners

Association & Ors. v State of Maharashtra & Ors.

33

, reiterated that

the scarce and finite nature of resources like airwaves, thereby

recognising the power of government to protect the same in interest of

general public. The relevant excerpt is reproduced hereunder:

―223. ………... However, as the community has a vital interest in the

retention of the character of these resources, they fall within the

ambit of the expression ―material resources of the community‖.

224. We may refer to the Public Trust Doctrine that has been

evolved by this Court in a consistent line of precedent, to better

33

2024 INSC 835

W.P,(C) 7982/2013 and connected matters Page 44 of 68

understand the ‗community‘ element of such resources. This

doctrine provides that the State holds all natural resources as a

trustee of the public and must deal with them in a manner consistent

with the nature of the trust. The doctrine was introduced to Indian

jurisprudence by a two-judge bench decision of this Court in M.C.

Mehta v. Kamal Nath. This Court, speaking through Justice Kuldip

Singh, held that the doctrine is rooted in the principle that certain

resources like ―air, sea, waters and forests‖ hold such importance to

the people, as a whole, that it would be unjustified to make them a

subject of private ownership. This Court held that the doctrine

mandates the Government to protect the resources for the enjoyment

of the general public, rather than to permit their use for commercial

gains. Significantly, this does not mean that the state cannot

distribute such resources, sometimes even to private entities, rather

while distributing such resources, the state is bound to act in

consonance with the principles of public trust so as to ensure that no

action is taken which is detrimental to public interest.

225. The Constitution Bench of this Court in Special Reference No.

1, adverted to above, had occasion to observe that the Public Trust

Doctrine has expanded beyond resources like air, sea, water and

forests, to include other resources such as spectrum which also have

a community or public element. The Constitution Bench of this

Court, relying on Article 39(b), held that no part of such resources

can be dissipated as a matter of largess, charity, donation or

endowment, for private exploitation. The considerations may be in

the nature of the state earning revenue or to "best sub-serve the

common good". The idea, this Court held, is that one set of private

citizens cannot prosper at the cost of another set of private citizens,

because such resources are owned by the community as a whole.‖

(Emphasis Supplied)

45. Furthermore, the Supreme Court in 2026 by way its judgment in

State Bank of India v Union of India & Ors.

34

, while dealing with

spectrum in the context of insolvency summarised the earlier line of

authorities. The relevant paragraphs are reproduced hereunder:

―13.1 The International Telecommunication Union (ITU), a

specialised agency of the United Nations responsible for global

telecommunications regulation, divides the world into three regions,

each with specified frequency allocations. The ITU has allocated

various spectrum bands to India for mobile telecommunications,

satellite-based services, and other applications such as broadcasting.

The spectrum needs of our fastgrowing economy has been projected

to be around 2000 MHz by 2030. This is said to be far below the

34

2026 INSC 153

W.P,(C) 7982/2013 and connected matters Page 45 of 68

needs of defense, telecommunications and other sectors. In CPIL

(Supra), this Court explained spectrum as;

―77. Spectrum has been internationally accepted as a scarce,

finite and renewable natural resource which is susceptible to

degradation in case of inefficient utilization. It has a high

economic value in the light of the demand for it on account of

the tremendous growth in the telecom sector. Although it does

not belong to a particular State, right of use has been granted

to the States as per international norms.‖ 14. Beyond its

technical description, spectrum has consistently been

recognized as a public resource and it is precious also for the

reason that it is finite and limited.

B. Concept of ownership over natural resources and its

Constitutional Underpinnings:

15. Dealing with spectrum as a limited natural resource, this Court

in CPIL Case (Supra) had the occasion to deal with ownership and

control of the natural resource in the following terms;

―74. …Natural resources belong to the people but the State

legally owns them on behalf of its people and from that point

of view natural resources are considered as national assets,

more so because the State benefits immensely from their value.

75. The State is empowered to distribute natural resources.

However, as they constitute public property/national asset

while distributing natural resources the State is bound to act in

consonance with the principles of equality and public trust and

ensure that no action is taken which may be detrimental to

public interest. Like any other State action, constitutionalism

must be reflected at every stage of the distribution of natural

resources….‖

16. Applying the doctrine of public trust, recognized in M. C. Mehta

v. Kamal Nath this Court held that spectrum as a natural resource

of the nation is administered by the Central Government as a

Trustee. In a nuanced approach, this position was reaffirmed by the

Constitution Bench in Natural Resources Allocation, In re (Supra)

by holding that while the State may adopt different modalities of

allocation, it cannot part with the natural resource when the policy

of the State is not supported by social or welfare purpose.

―149. …Alienation of natural resources is a policy decision, and

the means adopted for the same are thus, executive prerogatives.

However, when such a policy decision is not backed by a social

or welfare purpose, and precious and scarce natural resources

are alienated for commercial pursuits of profit maximising

private entrepreneurs, adoption of means other than those that

are competitive and maximise revenue may be arbitrary and

face the wrath of Article 14 of the Constitution. Hence, rather

than prescribing or proscribing a method, we believe, a judicial

W.P,(C) 7982/2013 and connected matters Page 46 of 68

scrutiny of methods of disposal of natural resources should

depend on the facts and circumstances of each case, in

consonance with the principles which we have culled out above.

Failing which, the Court, in exercise of power of judicial review,

shall term the executive action as arbitrary, unfair,

unreasonable and capricious due to its antimony with Article 14

of the Constitution.‖

17. The constitutional framework reinforces this understanding by

mandating that the ownership and control of this material resource

of the community be so distributed as best to subserve the common

good. Constitution obligates the State to ensure that access to and

use of such resource is regulated in a transparent, non-

discriminatory manner, so that, its benefit enure to the benefit of the

nation, rather than being treated as objects of private ownership or

unfettered commercial exploitation. This position is clear from the

following passage in CPIL (Supra);

―75. … while distributing natural resources the State is bound

to act in consonance with the principles of equality and public

trust and ensure that no action is taken which may be

detrimental to public interest. Like any other State action,

constitutionalism must be reflected at every stage of the

distribution of natural resources. In Article 39(b) of the

Constitution it has been provided that the ownership and

control of the material resources of the community should be

so distributed so as to best subserve the common good, but no

comprehensive legislation has been enacted to generally define

natural resources and a framework for their protection….‖

(Emphasis Supplied)

46. The settled line of authorities establishes a well-settled

constitutional position that spectrum and airwaves constitute scarce,

finite public resources which vest in the people, and are held by the

State in a fiduciary capacity as trustee. Consequently, their allocation

and regulation must necessarily be informed by the foundational

principles of public interest, equality, and transparency, as reinforced

by the public trust doctrine. In furtherance of Article 39(b) of the

Constitution, such resources are required to be distributed so as to best

subserve the common good.

47. Accordingly, access to spectrum is neither inherent nor

W.P,(C) 7982/2013 and connected matters Page 47 of 68

absolute; it is conditional, regulated, and circumscribed by statutory

and constitutional limitations. The broadcasters cannot claim an

unfettered right to exploit spectrum for commercial purposes. Their

use of such resource is subject to licensing conditions, statutory

frameworks, and regulatory oversight. The State, in discharge of its

constitutional obligations, is fully competent to regulate the manner

and extent of such usage in order to ensure that the public character of

the resource is preserved and that its benefits accrue to the community

at large.

(b) Whether the rights of broadcasters argued under Article 14

and Article 19 of the Constitution subserve the benefit of public at

large?

48. Before dealing with the arguments raised by learned senior

counsel for the Petitioners, with respect to Articles 14 and 19 of the

Constitution, we deem it apposite to highlight the interplay between

the State‟s duty to regulate natural resources and whether such duties

envisaged by the Constitution automatically stands superseded by the

principles enshrined under Articles 14 and 19 of the Constitution.

49. Article 39(b) forming part of Part IV of the Constitution under

the Directive Principles of State Policy (DPSP), embodies a

fundamental constitutional directive which guides and informs State

policymaking. It delineates the constitutional obligation of the State to

ensure that the ownership and control of material resources of the

community are so distributed as to best subserve the common good. In

essence, it mandates that the State, while exercising its regulatory and

distributive functions, must adopt policies that ensure equitable

distribution of resources in furtherance of public welfare and socio-

economic justice.

W.P,(C) 7982/2013 and connected matters Page 48 of 68

50. Article 39(c) of the Constitution, mandates that the State shall

direct its policy towards securing that the operation of the economic

system does not result in the concentration of wealth and means of

production to the common detriment. The said DPSP, embodies a core

facet of the Constitution‟s socio-economic philosophy, aimed at

preventing structural imbalances thereby ensuring that economic

power is not disproportionately accumulated in the hands of a few,

leading to the prejudice of the broader community.

51. Article 31-C of the Constitution on the other hand, forming part

of Part-III under the FRs guaranteed thereunder, provides a

constitutionally significant interface between FRs and the DPSP. It

states that any law enacted to give effect to the policy of State towards

securing the principles enshrined under Part-IV shall not be deemed

void on the ground of inconsistency with, or abridgment of, the rights

conferred under Articles 14 and 19 of the Constitution.

52. The controversy pertaining to the complementary significance

of Article 31-C vis-à-vis Articles 39(b) and 39(c) of the Constitution,

holds a significant place in the constitutional history of India.

Chandrachud C.J., in the case of Minerva Mills Limited & Ors v

Union of India and Ors.

35

, observed that Part III and Part-IV are the

two wheels of chariot, and as such, harmony and balance between the

two forms an essential feature of the basic structure, thus, giving

absolute primacy to either side would destroy such harmony.

53. The Supreme Court in the celebrated and landmark judgment of

Kesavnanda Bharati v State of Kerala

36

, upheld the constitutional

35

(1980) 3 SCC 625

36

(1973) 4 SCC 225

W.P,(C) 7982/2013 and connected matters Page 49 of 68

validity of Article 31-C in a limited sense, to the extent that it

provided immunity from challenges under Articles 14, 19 and the then

Article 31 of the Constitution to laws enacted to give effect to the

DPSP set out in clauses (b) or (c) of Article 39 of the Constitution.

Before adverting to the relevant extracts of the judgment, we must

highlight that Article 31-C of the Constitution, as it stands today, is a

product of rigorous constitutional evolution, having undergone

significant amendments and judicial scrutiny over time. However, for

the purpose of present analysis, we deem it unnecessary to delve

deeply into the entire doctrinal trajectory and leave said discussion for

the academic discourse.

54. Further, the Supreme Court in Kesavnanda Bharti (Supra) in

paragraph nos.1035, 1323, 1537, 1771 and 1788, also upheld the

constitutional validity of first part of Article 31-C of the Constitution,

to the extent it subsumes the rights guaranteed under Part-IV, in

particular, immunity from challenges under Articles 14, 19, and the

then Article 31 as long as a law made by the Government satisfies the

policies envisaged under Article 39(b) or (c) of the Constitution. In

this regard, the Court while dealing with power of judicial review

highlighted that the nexus or connection between the law and the

objective set out in Article 39(b) or (c) of the Constitution is a

condition precedent for the applicability of Article 31-C of the

Constitution and Courts can tear the veil to decide the real nature of

the statute if the facts and circumstances warrant such a course.

55. Moreover, the constitutional validity of the first part of Article

31-C of the Constitution, as it stands today, was also upheld by a

Constitutional Bench of the Supreme Court in its consequent

W.P,(C) 7982/2013 and connected matters Page 50 of 68

judgment in Waman Rao & Ors. v Union of India & Ors.

37

, wherein

it was held that laws genuinely enacted to give effect to Article 39(b)

and (c) of the Constitution fortify, rather than damage, the basic

structure.

56. Having delineated the constitutional validity of Article 31-C of

the Constitution, and the Courts power to exercise judicial review over

legislations passed under Article 39(b) and (c) of the Constitution, we

shall now advert to the criteria/tests laid down by the Supreme Court

in order to examine whether a law passed by the Government gives

effect to Article 39(b) and (c) of the Constitution. In this regard, a

reference is made to the judgment in Tinsukhia Electric Supply Co.

Ltd. v. State of Assam

38

, wherein the Supreme Court while dealing

with the protection under Article 31-C of the Constitution, held as

follows:

―3. The principal question which falls for consideration is, whether

that declaration is justiciable and open to judicial review and the

extent of that judicial review. Article 39(b) of the Constitution enjoins

that the State in particular should direct its policy towards securing

that the ownership and control of the material resources of the

community are so distributed as to best subserve the common good

and that the operation of the economic system does not result in

concentration of wealth and means of production to the common

detriment. See, in this connection, the observations of Ray, J., as the

learned Chief Justice then was, in Kesavananda Bharati v. State of

Kerala- (SCC pp. 585-86: SCR pp. 451-52). Hence in order to decide

whether a statute is within Article 31-C, the court, if necessary, may

examine the nature and the character of legislation and the matter

dealt with as to whether there is any nexus between the law and the

principles mentioned in Article 39(b) and (c). On such an

examination if it appears that there is no such nexus between the

legislation and the objectives and the principles mentioned in Article

39(b) and (c), the legislation will not enjoy the protection of Article

31-C. In order to see the real nature of the statute, if need be, the

court may also tear the veil.‖

(Emphasis Supplied)

37

(1981) 2 SCC 362 [54]

38

(1989) 3 SCC 709

W.P,(C) 7982/2013 and connected matters Page 51 of 68

57. Similarly, in a recent judgment of Property Owners Association

& Ors. (Supra), the Supreme Court broadly observed as follows:

―3. Article 31C of the Constitution provides certain legislations a safe

harbour and protects them from being challenged under Articles 14

and 19. The only requirement is that the legislation must give effect

to ―the principles specified in clause (b) or clause (c) of Article 39‖.

In a sense, Article 31C is the ying to the yang of Article 39(b), which

gives it a unique colour and texture and provides it with far-

reaching consequences. Once it is established that a particular

legislation has a nexus with the principles specified in Article 39(b),

Article 31C provides the legislation with a lifeboat – protecting it

from a challenge to its constitutionality under Articles 14 and 19 of

the Constitution.‖

(Emphasis Supplied)

58. As per the above precedents, the decisive test established to

determine a law giving effect to Article 39(b) and (c) of the

Constitution, is the existence of a real and substantive nexus between

the legislation and the objectives of the said Article, i.e., distribution

of material resources to subserve the common good and prevention of

concentration of wealth. Having regard to the aforesaid constitutional

position, we shall now turn to the examination of the Impugned

Regulation of 2012, on the anvil of tests laid down in Tinsukhia

Electric Supply Co. Ltd. (Supra) and Property Owners Association &

Ors. (Supra).

59. At this stage, it also becomes pertinent to highlight that the

primary bone of contention of the Petitioners, challenging the

Impugned framework, lies not in the freedom of production or non-

production of content shown while advertisement, rather it finds its

genesis to the assertion that the Impugned Regulation of 2012, by way

of imposing a per clock hour regime on to the time ceiling of 12

minutes of advertisements, affects their „primary source of

sustenance‟ which namely advertising revenue. Such action taken by

W.P,(C) 7982/2013 and connected matters Page 52 of 68

the Government, is argued to be undermining their economic viability,

accordingly, they are asserting a right to a particular quantum of

commercial gain from a public resource.

60. A reference may also be made to the explanatory memorandum

attached to the Impugned Regulation of 2012, which indicates that the

regulatory intervention was preceded by widespread consumer

complaints regarding excessive advertisement duration, frequency,

and disruptive formats. The relevant part is as follows:

―5. There have been several complaints, mainly from the consumers

raised at various fora, regarding overplaying of advertisements, long

duration of advertisements, overlaying of advertisements on the

screen, increased audio level during advertisements etc. It has been

said that the advertisement duration and formats are not in accordance

with the provisions stated above. It has often been pointed out that the

advertisements are played/repeated several times in between the

programmes, which break the continuity of the programme and often

done at crucial stages of a programme. In this context, there have

been requests to at least restrict and regulate the duration, frequency

and timings of the advertisements.

6. With the primary objective of striking a balance between giving a

consumer a good TV viewing experience, and protecting the

commercial interests of broadcasters, a consultation paper was issued

on 16th March 2012 titled ―Issues related to Advertisements in TV

channels‖. In the consultation paper, various issues related to

advertisements on TV channels in India were discussed and a proposal

for regulation of duration and format of advertisements was put forth

for comments of the stakeholders. In response to this consultation

paper, 29 comments were received. Based on the comments/ views of

the stakeholders and analysis of various aspects, facts and available

studies, the Authority has decided to issue separate regulations for the

duration of advertisements carried in TV channels.

8. The other stakeholders comprising mainly the consumers,

consumer organisations and cable operators have supported the TRAI

proposal for the regulation of duration and format of advertisements

in the TV channels.

16. One of the cable operator association has stated that the limit for

the duration of the advertisement should be regulated on a clock hour

basis as well as on 24 hr basis. Supporting the clock hour based

capping of advertisement duration, one of the consumer organisation

has stated that this would avoid accumulation of advertisement slots,

especially in peak hours. Another consumer organisation has even

W.P,(C) 7982/2013 and connected matters Page 53 of 68

stated that the limits may be more stringent for children specific

programmes.‖

(Emphasis Supplied)

61. A perusal of the aforesaid would indicate that the impugned

action of the Government was preceded by, and is responsive to,

concerns articulated by consumers and consumer organisations

regarding the excessive duration and frequency of advertisements,

which were found to materially disrupt the continuity and smooth

viewing of television programmes. Therefore, the regulatory

intervention reflects a considered response to legitimate consumer

grievances, aimed at preserving the quality of the viewing experience

and safeguarding the interests of viewers.

62. Against the aforestated factual backdrop, the regulatory

framework governing advertisement time must be viewed as part of

broader statutory scheme of the Government in regulating the use of

spectrum, which constitutes a scarce and finite public resource, held

by the State in a fiduciary capacity, to be utilised in order to subserve

common good.

63. The measures taken by TRAI to impose a temporal limit on

advertisements, in order to ensure that no material resource is

exploited for excessive commercial gain by broadcasters, bear a

proximate and rational nexus to the constitutional mandate of ensuring

that material resources of the community are distributed and utilised

so as to subserve the common good. Accordingly, the Impugned Rule

and Regulations insofar as they prevent excessive commercial

exploitation, safeguard consumer interest and ensure equitable and

efficient utilisation of broadcast spectrum, can legitimately be

regarded as effectuating the principles embodied in Articles 39(b) and

W.P,(C) 7982/2013 and connected matters Page 54 of 68

(c) of the Constitution. Consequently, the measures taken by the

Government being the trustee of material resources, while imposing

the per clock hour regime, in order to meet the interests of consumers,

would be protected within the ambit of Article 31-C of the

Constitution, thereby foreclosing the challenge of the Petitioners on

alleged violations of Articles 14 and 19 of the Constitution.

64. Without prejudice to the aforesaid, even if the impugned

measures are tested independently on the touchstone of FRs, the

challenge would not sustain. The claim of the Petitioners on account

of loss of advertising revenue falls squarely within the ambit of

Article 19(1)(g) of the Constitution, which deals with freedom to carry

on business, and not the core of Article 19(1)(a) of the Constitution.

Reliance in this regard is placed on paragraph no.9 of judgment in A.

Suresh (Supra), wherein the Hon‟ble Supreme Court, observed that

where a speech is intertwined with business, the activity undergoes a

fundamental change and must be balanced against societal interests.

65. Under Article 19(1)(g) of the Constitution, the Petitioners are

entitled to carry on the business of broadcasting, subject to

„reasonable restrictions in the interests of the general public‟ under

Article 19(6) of the Constitution. The ceiling on advertisement time

constitutes one such restriction. In this backdrop, the rationale

underlying the Impugned Rule and Regulations framed by TRAI must

be understood in three contexts, each anchored in the principle of

reasonableness. Firstly, excessive advertisement breaks, driven by

revenue maximisation, degrade viewer experience and provoke

widespread consumer dissatisfaction. Secondly, international practice

across numerous jurisdictions including but not limited to Argentina,

W.P,(C) 7982/2013 and connected matters Page 55 of 68

Croatia, Canada, Germany, Ireland, UK, etc., converges broadly

around a ceiling of 9 to 12 minutes per hour, thereby underscoring that

India‟s 12-minute cap is neither extreme nor novel. Thirdly, the

Impugned Regulations leaves intact the broadcasters‟ freedom to fix

advertisement rates, design subscription models, and curate

programme content for the remaining 48 minutes each hour; they

merely allocate a reasonable portion of each hour to non-commercial

content in the interest of viewers.

66. Therefore, to secure the commercial benefit of broadcasters is

not the constitutional duty of the State. A State‟s obligation,

particularly, where public resources are involved is to safeguard the

interest of viewers and the public at large, rather than allowing or

permitting its use for commercial gains as held in M.C. Mehta v

Kamal Nath

39

and reiterated in Property Owners Association (Supra).

Article 19(1)(g) of the Constitution does not guarantee profitability,

and certainly not a right to monetise public property beyond

reasonable structural limits imposed in the common good.

67. Adverting now to the Impugned Rule and Regulation, the 12

minutes time ceiling is not a content-based restriction, as it does not

prohibit category of advertisement, rather it imposes a neutral, time-

based limit on the quantity of advertisements that may occupy each

hour of broadcast. To reiterate, the objective of such time ceiling is

only to safeguard viewer experience and prevent the excessive

commercialisation of a scarce public resource. Such imposition of

regulations has been conferred to TRAI in a manner to regulate,

subject to, needless to say, the four corners of the relevant statute.

39

(1997) 1 SCC 388

W.P,(C) 7982/2013 and connected matters Page 56 of 68

68. Further, the reliance placed by the Petitioners, on Kaushal

Kishore (Supra), is distinguishable from the present controversy. The

aforesaid judgment holds that the grounds under Article 19(2) of the

Constitution are exhaustive and, as such, cannot be enlarged by

invoking other rights like Article 21 of the Constitution; and no new

restrictions on free speech can be judicially created beyond the eight

enumerated heads. However, in the present case, the actions of the

Government, stands justified under the reasonable restrictions

envisaged under Article 19(6) of the Constitution, in particular,

against the primary bone of contention of the Petitioners relating to

the loss of commercial gain. Moreover, the actions of the Government

also stand justified under the DPSP framework provided under Article

39 of the Constitution and are not an attempt to invent new restrictions

to Article 19(2) of the Constitution.

69. In this regard, a reference may be made to the judgment of

Supreme Court in Mohd Arif alias Ashfaq v Registrar, Supreme

Court of India and Others

40

, wherein the Court while reiterating its

decision of Rustom Cavasjee Cooper (Banks Nationalisation) v

Union of India

41

, highlighted that the various FRs contained in

different articles are not mutually exclusive. The relevant paragraph

reads as under:

―The minority judgment of Subba Rao and Shah, JJ. eventually

became law in Rustom Cavasjee Cooper (Banks Nationalisation) v.

Union of India, where the 11-Judge Bench finally discarded

Gopalan's view and held that various fundamental rights contained

in different articles are not mutually exclusive: (SCC p. 289, para

53)

"53. We are therefore unable to hold that the challenge to the

validity of the provision for acquisition is liable to be tested only

40

(2014) 9 SCC 737

41

(1970) 1 SCC 248

W.P,(C) 7982/2013 and connected matters Page 57 of 68

on the ground of non-compliance with Article 31(2). Article

31(2) requires that property must be acquired for a public

purpose and that it must be acquired under a law with

characteristics set out in that Article. Formal compliance with

the conditions under Article 31(2) is not sufficient to negative

the protection of the guarantee of the right to property.

Acquisition must be under the authority of a law and the

expression "law" means a law which is within the competence of

the Legislature, and does not impair the guarantee of the rights

in Part !!I. We are unable, therefore, to agree that Articles

19(1)(/) and 31(2) are mutually exclusive.‖

(Emphasis Supplied)

70. Similarly, the Supreme Court in K.S. Puttaswamy and Anr. v

Union of India & Ors.

42

, further clarifying the structure of Part III of

the Constitution, observed as follows:

―21. The theory that the fundamental rights are watertight

compartments was discarded in the judgment of eleven Judges of

this Court in Cooper. Gopalan had adopted the view that a law of

preventive detention would be tested for its validity only with

reference to Article 22, which was a complete code relating to the

subject. Legislations on preventive detention did not, in this view,

have to meet the touchstone of Article 19(1)(d).

The dissenting view of Fazl Ali, J. in Gopalan was noticed by J.C.

Shah, J. speaking for this Court, in Cooper. The consequence of the

Gopalan doctrine was that the protection afforded by a guarantee of

personal freedom would be decided by the object of the State action in

relation to the right of the individual and not upon its effect upon the

guarantee.

Disagreeing with this view, the Court in Cooper held thus: (SCC p.

289, para 52)

"52. ... it is necessary to bear in mind the enunciation of the guarantee

of fundamental rights which has taken different forms. In some cases it

is an express declaration of a guaranteed right: Articles 29(1), 30(1),

26, 25 and 32; in others to ensure protection of individual rights they

take specific forms of restrictions on State action-legislative or

executive-Articles 14, 15, 16, 20, 21, 22(1), 27 and 28; in some others,

it takes the form of a positive declaration and simultaneously

enunciates the restriction thereon : Articles 19(1) and 19(2) to (6); in

some cases, it arises as an implication from the delimitation of the

authority of the State, eg. Articles 31(1) and 31(2); in still others, it

takes the form of a general prohibition against the State as well as

others: Articles 17,23 and 24. The enunciation of rights either

42

(2017) 10 SCC 1

W.P,(C) 7982/2013 and connected matters Page 58 of 68

express or by implication does not follow a uniform pattern. But one

thread runs through them: they seek to protect the rights of the

individual or groups of individuals against infringement of those

rights within specific limits. Part III of the Constitution weaves a

pattern of guarantees on the texture of basic human rights. The

guarantees delimit the protection of those rights in their allotted

fields: they do not attempt to enunciate distinct rights.‖

(Emphasis Supplied)

71. The jurisprudential import of the aforesaid judgment is that Part

III of the Constitution embodies a unified charter of rights, where each

provision delineates a specific facet of liberty rather than existing as

isolated or self-contained compartments. Therefore, the analytical

focus, is not confined to the ostensible classification of the right

invoked, but extends to the real nature, effect, and constitutional

impact of the impugned measure.

72. Tested on the touchstone of the aforesaid principles, the present

controversy, reveals that notwithstanding the primary argument of the

Petitioners based majorly on Article 19(1)(a) of the Constitution, this

Court is not refrained from examining the impugned regulatory

framework through the prism of Article 19(1)(g) as well. The various

clauses under Article 19 of the Constitution do not constitute mutually

exclusive or watertight compartments; rather, they represent different

facets of a broader constitutional guarantee of freedom. Consequently,

where State action is argued to be interfering with the commercial

structuring of a licensed activity involving public resources, the same

may legitimately be assessed under Article 19(1)(g) of the

Constitution, even if it incidentally affects expressive elements under

Article 19(1)(a) of the Constitution.

73. Similarly, the challenge pertaining to Article 14 of the

Constitution proceeds on three footing that the Impugned Rule and

W.P,(C) 7982/2013 and connected matters Page 59 of 68

Regulations: (i) does not distinguish between prime and non-prime

time; (ii) treats heterogenous channels, such as news channels, GECs,

regional channels, pay channels and FTA channels, uniformly and (iii)

makes no distinction between commercial, public-service and self-

promotional advertisements.

74. The Supreme Court in Sukanya Shantha v Union of India &

Ors.

43

, while summarising the standards laid down by the Supreme

Court under Article 14 of the Constitution, held as follows:

―42. The constitutional standards laid down by the Court under

Article 14 can be summarised as follows. First, the Constitution

permits classification if there is intelligible differentia and reasonable

nexus with the object sought. Second, the classification test cannot be

merely applied as a mathematical formula to reach a conclusion. A

challenge under Article 14 has to take into account the substantive

content of equality which mandates fair treatment of an individual.

Third, in undertaking classification, a legislation or subordinate

legislation cannot be manifestly arbitrary i.e. courts must adjudicate

whether the legislature or executive acted capriciously, irrationally

and/or without adequate determining principle, or did something

which is excessive and disproportionate. In applying this

constitutional standard, courts must identify the "real purpose" of the

statute rather than the "ostensible purpose" presented by the State, as

summarised in ADR. Fourth, a provision can be found manifestly

arbitrary even if it does not make a classification. Fifth, different

constitutional standards have to be applied when testing the validity of

legislation as compared to subordinate legislation.‖

(Emphasis Supplied)

75. The five-fold framework articulated in Sukanya Shantha

(Supra) when applied in its full doctrinal breadth, leaves little room

for sustaining a challenge to the impugned framework. The

prescription of a uniform ceiling of 12 minutes per clock hour rests on

a clear and intelligible structural distinction between programme

content and advertising time, which bears a direct and proximate

nexus to the ultimate objective of preserving viewer interest and

43

(2024) 15 SCC 535

W.P,(C) 7982/2013 and connected matters Page 60 of 68

enhancing quality of experience. Therefore, the measure satisfies the

classical test of permissible classification.

76. Similarly, when tested on the touchstone of substantive equality

under Article 14 of the Constitution, the framework advances fair and

non-discriminatory treatment by securing for all viewers, irrespective

of channel or genre of broadcast, a baseline entitlement to content-

dominant broadcasting. Therefore, the regulatory focus is

appropriately aligned with the end-user, consistent with the consumer-

centric mandate governing the telecom sector.

77. On the axis of manifest arbitrariness, the impugned provisions

are anchored in a discernible regulatory principle, namely the

prevention of excessive commercialisation of a scarce public resource

and the mitigation of viewer disruption. The fixation of the ceiling is

neither capricious nor disproportionate, but is informed by

consultative processes, comparative international practice, and

identifiable consumer concerns. Therefore, the measure does not

suffer from the vice of arbitrariness as elucidated in contemporary

Article 14 jurisprudence.

78. Further, even if the framework is construed as a uniform, non-

classificatory rule, it cannot be impugned as inherently arbitrary, as it

embodies a rational, structured, and constitutionally legitimate

response to the regulation of spectrum-based services, which are

vested with public interest considerations.

79. Finally, having regard to the standard applicable to subordinate

legislation, both the Impugned Rule and Regulations are traceable to,

and operate within, the statutory contours of the parent enactments.

W.P,(C) 7982/2013 and connected matters Page 61 of 68

They disclose no excess of delegation, nor any inconsistency with the

legislative scheme, and are supported by cogent policy rationale.

Accordingly, when assessed cumulatively across all the facets

delineated in Sukanya Shantha (Supra), the Impugned Rules and

Regulations is found not to be ultra vires Article 14 of the

Constitution.

80. To conclude, the impugned regulatory framework represents a

constitutionally sound exercise of the State‟s authority to regulate a

scarce public resource in furtherance of the common good. The

framework being anchored in the DPSP embodied under Articles

39(b) and (c) of the Constitution and fortified by the protective ambit

of Article 31-C of the Constitution, strike a careful balance between

individual freedoms and collective welfare. The limitations imposed

on advertisement time neither abrogate the FRs of the Petitioners nor

transgress the guarantees under Articles 14 and 19 of the Constitution,

rather it constitutes a reasonable and proportionate restrictions aligned

with established constitutional doctrine. When viewed holistically, the

framework advances consumer interest, ensures equitable utilisation

of spectrum, and preserves the integrity of the broadcasting

ecosystem, thereby satisfying both the test of reasonableness under

Article 19(6) of the Constitution and the mandate of non-arbitrariness

under Article 14 of the Constitution. Consequently, the challenge to

the impugned provisions is unsustainable in law.

(c) Judgments forming part of core contentions of the Petitioners

are distinguishable

81. The Petitioners before this Court, with great ingenuity have

sought to cast what is fundamentally a grievance about loss of

W.P,(C) 7982/2013 and connected matters Page 62 of 68

advertising revenue as a direct violation of their freedom of speech

and expression as guaranteed under Article 19(1)(a) of the

Constitution. While making the aforesaid submission, a principal

reliance has been placed on the judgment of Hon‟ble Supreme Court

in Sakal Papers (Supra), Bennett Coleman (Supra) and Tata Press

Ltd. (Supra).

82. However, while relying upon the aforesaid judgments, the

Petitioners have overlooked a very basic distinction between the lis

giving rise to the present petition as against the lis of the said

judgments. In the aforesaid judgments, the Hon‟ble Supreme Court,

undoubtedly, laid down that programme includes advertisements and

Government has no power to put a cap, as it would be violative of

Article 19(1)(a) of the Constitution. However, the lis therein arose out

of the limitations pertaining to print media.

83. In this regard, the nature of the medium in the aforestated media

and usage of public resources for the same needs to be distinguished.

On one hand, print media uses privately owned resources like printing

presses, paper and distribution networks, while focusing on

registration and professional standards and not an ex-ante licensing of

editorial operations. Whereas, broadcasting media, on the other hand

uses the airwaves and spectrum, which has undisputedly been

characterised as a scarce public resource which shall necessarily be

utilised to promote public good. On account of the scarce and public

nature of broadcasting media, the State exercises the right to impose a

licensing and authorisation regime for broadcasters and regulate

access to spectrum.

84. The distinction between print media and broadcasting has also

W.P,(C) 7982/2013 and connected matters Page 63 of 68

been recognized by the Supreme Court in K.A. Abbas v Union of

India

44

, wherein Hidayatullah, C.J. described the differences in the

context of motion pictures:

“20. Further it has been almost universally recognised that the

treatment of motion pictures must be different from that of other

forms of art and expression. This arises from the instant appeal of the

motion picture, its versatility, realism (often surrealism), and its co-

ordination of the visual and aural senses. The art of the cameraman,

with trick photography, vista-vision and three-dimensional

representation thrown in, has made the cinema picture more true to

life than even the theatre or indeed any other form of representative

art. The motion picture is able to stir up emotions more deeply than

any other product of art. Its effect particularly on children and

adolescents is very great since their immaturity makes them more

willingly suspend their disbelief than mature men and women. They

also remember the action in the picture and try to emulate or imitate

what they have seen. Therefore classification of films into two

categories of 'U' films and 'A' films is a reasonable classification. It is

also for this reason that motion pictures must be regarded differently

from other forms of speech and expression. A person reading a book

or other writing or hearing a speech or viewing a painting or

sculpture is not so deeply stirred as by seeing a motion picture.

Therefore the treatment of the latter on a different footing is also a

valid classification.”

(Emphasis Supplied)

85. Likewise, the Supreme Court in the judgment of Secy. Ministry

of Information and Broadcasting (Supra), while dealing with the

nuances of censorship, reiterated the distinction between the print

medium and the audio-visual medium:

―15. ……..Though a movie enjoys the guarantee under Article

19(1)(a), there is one significant difference between a movie and other

modes of communication. Movie motivates thought and action and

assures a high degree of attention and retention. In view of the

scientific improvements in photography and production, the present

movie is a powerful means of communication. It has a unique

capacity to disturb and arouse feelings. It has much potential for evil

as it has for good. With these qualities and since it caters for mass

audience who are generally not selective about what they watch, a

movie cannot be equated with other modes of communication. It

cannot be allowed to function in a free market-place just as does the

newspaper or magazines. Censorship by prior restraint is, therefore,

44

(1970) 2 SCC 780

W.P,(C) 7982/2013 and connected matters Page 64 of 68

not only desirable but also necessary. But the First Amendment to the

US Constitution does not permit any prior restraint, since the

guarantee of free speech is in unqualified terms. Censorship is

permitted mainly on the ground of social interests specified under

Article 19(2) with emphasis on maintenance of values and standards

of society.‖

(Emphasis Supplied)

86. Turning now to the circumstances in the present case, the rights

claimed by broadcasters is in a capacity of a licenced user of public

resources, i.e., airwaves and frequencies. This distinction is not merely

formal, rather it informs the scope and character of permissible

regulation. The use of a public resource necessarily attracts an

additional layer of regulatory control to ensure that such resource is

deployed in a manner that subserves the larger public good as

highlighted in the preceeding paragraphs of this judgment. Television

channels, though privately operated, function within this shared

communicative space, meant for public access and consumption.

87. Accordingly, once broadcasters avail themselves of the

privilege of utilising public spectrum under statutory licence, they

cannot disclaim the corresponding obligation to adhere to conditions

designed to regulate its use in the public interest. The imposition of a

temporal ceiling on advertisements is one such condition, directed not

at suppressing expression, but at structuring the use of a public

resource in a manner consistent with viewer welfare.

88. Therefore, the Petitioners, while equating the two media, have

overlooked this essential constitutional distinction between private

means of expression and public means of transmission, a distinction

that decisively informs the validity of the impugned measure.

W.P,(C) 7982/2013 and connected matters Page 65 of 68

(d) Consultation, Transparency and Application of Mind by

TRAI

89. The record shows that TRAI followed a structured process:

issuing consultation papers, inviting detailed submissions, holding

open-house sessions, and publishing explanatory materials before

finalising the Impugned Regulations. However, it has been argued by

one of the Petitioners that their objections, pertaining to economic

impact and the clock-hour construct were not accepted or exhaustively

discussed.

90. In accordance with Cellular Operators Association of India

(Supra), TRAI as a regulatory body of Government is required to act

transparently, rationally, and to engage with stakeholder input; it does

not require them to accept every industry position or to produce

quasi-judicial orders addressing each argument in seriatim. So long as

the material indicates that TRAI understood the competing

considerations, took note of foreign practice, weighed consumer

complaints against broadcaster concerns, and then adopted a uniform

cap for articulated reasons, the process requirement is met. Moreover,

the contending Petitioner has not demonstrated that TRAI shut out

relevant material or proceeded on no evidence; at best, they show a

disagreement with the regulator‟s policy choice, which is outside the

scope of judicial review in economic-regulatory matters.

91. In view of the aforesaid, it is noted that a right to maximise

advertising inventory on public spectrum cannot override the public-

interest considerations. The loss of revenue as projected by

broadcasters is at best a reduction in one revenue lever, not a denial of

their right to carry on business. In view of the aforesaid precedents

W.P,(C) 7982/2013 and connected matters Page 66 of 68

and constitutional terms, what is subject to protection as a FR is the

freedom to conduct business of broadcasting, not a guarantee of any

particular level of profit gained from the sale of advertising minutes

on public property. Even otherwise, since the actions of Government

highlight satisfies the tests laid down under Article 39(b) and (c) of

the Constitution, the actions stand subsumed by Article 31-C of the

Constitution.

D. CONCLUSION:

92. On a cumulative consideration of the statutory scheme, the

special constitutional position of spectrum-based media, the Impugned

Rule and Regulations withstand scrutiny under the Constitution, on

following grounds:

a. TRAI acted within its statutory authority under Sections 11 and

36 of the Act of 1997, read with the 2004 notification, in issuing the

Impugned Regulation of 2012 covering broadcasting and cable

services. The per clock hour advertisement cap is a valid exercise of

its regulatory power relating to QoS;

b. spectrum and airwaves are scarce public resources held in trust

by the State. Their regulation must align with Articles 39(b) and (c) of

the Constitution and the public trust doctrine. The impugned

framework furthers this objective by preventing excessive commercial

exploitation and ensuring equitable use, thereby attracting protection

under Article 31-C of the Constitution;

c. even otherwise the grievance relating to loss of advertising

revenue primarily falls within Article 19(1)(g) of the Constitution and

not the core of Article 19(1)(a) of the Constitution. The 12-minute cap

W.P,(C) 7982/2013 and connected matters Page 67 of 68

is a neutral, time-based regulation that does not restrict content but

only regulates quantity of advertising time;

d. the framework is reasonable under Article 19(6) of the

Constitution, as it serves the interests of the general public, preserves

viewer experience, and does not interfere with broadcasters‟ freedom

to determine content, pricing, or business models. There is no

constitutional guarantee of profitability or unlimited monetisation of

public resources;

e. the challenge based on Article 14 of the Constitution is

unsustainable as the classification between programme content and

advertisement time is intelligible and bears a rational nexus with the

objective of preventing over-commercialisation and protecting

consumer interest;

f. the framework is not manifestly arbitrary, being based on

consultation, empirical consumer concerns, and comparative

international practice. It reflects a structured and principled regulatory

approach; and

g. decision-making process adopted by TRAI satisfies the

requirements of consultation, transparency and application of mind.

93. The Rule 7 (11) of the Rules of 1994 and Regulation 3 of the

Regulation of 2012, as amended in 2013, constitute a constitutionally

valid exercise of regulatory power, striking a proportionate balance

between broadcaster rights and the public interest in efficient and fair

use of broadcast spectrum.

W.P,(C) 7982/2013 and connected matters Page 68 of 68

94. Keeping in view the above position of law, as well as the facts

and circumstances of the present case, the present Petitions are

dismissed. The Regulation 3 of the Regulation of 2012 passed by the

TRAI, effectuating Rule 7 (11) of the Rule of 1994, which are under

challenge herein, fail to meet the rights envisaged under Articles 14

and 19 of the Constitution.

95. All the pending applications also stand closed.

ANIL KSHETARPAL, J.

AMIT MAHAJAN , J.

MAY 29, 2026

jai/hr