No Acts & Articles mentioned in this case
A
B
THE SECRETARY, MINISTRY
OF INFORMATION AND
' .
BROADCASTING, GOVERNMENT OF INDIA AND ORS.
v.
CRICKET ASSOCIATION OF BENGAL AND ORS.
AND
VICE VERSA
FEBRUARY 9, 1995
[P.B. SAWANT, S. MOHAN AND B.P. JEEVAN REDDY, JJ.)
C Constitution of India'-Articles 19( 1)( a), 19(2)--Freedom of speech and
expression-Right to telecast live events over airwaves through satellite uplink
facility-Whether part
of freedom of
speeclt-Held, per curiam; yes-Held fur
ther, as airwaves are public property the n'ght is subject to in-built restrictions.
Constitution
of
lnditr-Articles 19(1) (a), 19(2)-Whether the right to
D telecast events· includes right to agency of one's choice-Right to establish
private telecasting facilities-Held, (Per Majority) the organisers
had a right
to sell the telecasting
rights to any
agen~eld, (Per minority) public
broadcasting is implicit in the
right, private broadcasting is
noHn the
absence
of a licence, the
organisers· had no right to telecast by an agency of
E their choice.
Constitution
of
Inditr-Articles 19(1) (a), 19(2), 14-Telegraph Act,
1885 S.4(1)-Reasonable restrictions on the right-Organisers of event selling
telecasting
rights to foreign agency-Organisers not obtaining licence for.
telecast but paying
charges for uplinking facility-No demand made for
F utilising frequencies controlled by government agencies-Government agen
cies refusing licence or permission to telecast-Whether refusal
of licence to
telecast malafide and
arbitrary-Held (per Majority) Doordarshan could not
reJu,se to telecast particularly since there was no lack of frequency; refusal
could be only on grounds specified in· Article 19 (2)--Per minority-The
G objection to a foreign agency telecasting even without a licence was not
. arbitrary or malafide.
Constitution
of India Article 19(1) (a), 19(2)-Telecastingfrom Indian
soil-Whether monopoly in favour of Doordarshan violative of the freedom
of speeclt-Held, (per minority), Monopoly unacceptabl~leld (per curiam)
H control to be in hands of an autonomous public C01JJOration.
1036
_(
MIN. OF INFORMATION AND BROADCASTING v. CRICKEf ASSN. OF BENGAL 1037
Constitution of Indi~Article 19(1) (a}-Telecasting of events by or-A
,Ir
ganisers through foreign agency-Whether the right is in fact a commercial
right traceable to Article 19 (1) (g)-He/d (Per Majority) organisers are not
_, seeking to enforce a commercial right-Held, (per minority) the right is sought
really by the foreign agency
and the ref ore question of violation of such right
under article
19 (l)(a) does not arise.
B
The Cricket Association of Bengal (CAB) organised an international
cricket tournament
in which India and four other countries participated.
~ -I-.
The CAB wrote to Doordarsban (DD), the official television network, in
March 1993 inviting
an
offer for the amount they would be willing to pay
CAB for live television coverage of the cricket matches in either of the c
alternatives : where Doordarshan would create the host broadcaster
signal
and undertake live telecast or where any other party would create
the host broadcaster signal
and DD would purchase the rights to telecast
in India.
CAB made it clear that in either situation
CAB would retain the
foreign
1V rights. By a subsequent letter CAB informed DD that they were
D
agreeable to DD creating the host broadcaster signal and granting to it
the exclusive right for India without Star 1V getting it and that the charges
for the same would be
US$ 800,000. Doordarshan replied quoting a figure
of Rs. 1 crore. CAB decided to sell the worldwide 1V rights to The Trans
World International (1WI) a foreign 1V network. On October 18, 1993
E CAB informed Doordarshan that it was expecting an offer of at least Rs.
2 crores from
DD and that they had received much higher offers from
agencies
abroad including 1WI. However, it offered to DD the right to
telecast some
of the matches directly and jointly
With 1WI on condition
that DD would allow advertising time which CAB would at liberty to sell
to advertisers.
DD rejected this
offer stating that they would never agree
F
to any joint production with 1WI. CAB then offered to sell to Doordarshan
the rights
of telecast on payment of access fees. DD responded stating that
CAB had to pay Rs.
S lakhs per match as technical charges and that DD
would have exclusive rights for the signals generated. With no agreement
materialising, Videsh Sanchar Nigam Limited (VSNL) withdrew from 1WI
G the uplink facility to the INTELSAT Satellite. The permission to import
equipment for the telecast was also withdrawn.
J.:-
CAB then approached the Calcutta High Court with a writ Petition
seeking a mandamus to the Government agencies
and DD to ensure
uninterrupted telecast
of the tournament. A Single Judge made an interim H
1038 SUPREME COURT REPORTS [1995] 1 S.C.R.
A order directing the respondents to provide all assistance and cooperation
to the petitioners or their agency for.uninterruptedtelecast and restrai~ed
the respondents from tampering with, removing, seizing or dealing with
any equipment relating to the telecast. The equipment seized
.by the
Cus
toms Authorities were directed to be released.
B In the appeal by the government agencies, a Division Bench of the
High Court directed the
CAB to pay DD immediately a sum of Rs. 5 lakhs
to enable
DD' to immediately telecast the matches. It directed the Secretary,
Ministry of Telecommunication, Government of India, to consider
and
grant provisional permission or licence
under Telegraph Act to CAB or
C 1WI within three days from the date of the order.
D
The government agencies appealed. to this Hon'ble Court. A Writ
Petition was also filed by CAB. By the tiine matters was finally heard, the
matChes has been telecast pursuant to and in accordance with the interim
directions issued
by this Court.
On beh~df of the CAB it was contended that there was implied
permission under Telegraph Act granted for uplinking facilities since
VSNL had already accepted the fees for the purpose; the action of DD in
refusing the telecast of the matches was
malafide and authoritarian; the
E organiser in exercise of its freedom of speech was free to have an agency
of its choice for telecasting the matches -
DD did not have
and could not
claim a monopoly in this regard; if
an application was made under Section
-4 of the Telegraph Act the appropriate authority
was bound to grant the
same unless
it could justify refusal of any of the condition under
Article
19(2) of the Constitution.
F
The Union of India submitted that there was no licence granted to
CAB and there was no quesiion of any implied permission; in the absence
of a licence VSNL could not have granted any uplinking facility; the
Government of India
had taken a policy decision that satellite uplinking
from Indian soil should
be in the
exclusive competence of the Government
G which in turn could market the rights to other parties; in as much as by
telecasting the event by selling its rights, CAB was asserting a right
relatable
to commerce under
Article 19(1)(g) and not under Article
19(l)(a); and that public interest demanded that foreign agencies should
not be freely permitted to set up telecasting facilities in India
and that
H state monopoly was
a· device to ensure use of the resource for public good.
\.
MIN. OF INFORMATION AND BROADCASTING v. CRICKEf ASSN. OF BENGAL 1039
Disposing of the appeals and writ petition, this Court A
HELD: Per majority (Swant J. for himself anti Mohan J.):
.
t:l. The freedom of speech and expression incfndes right to acquire
info['.mation and to disseminate it. Freedom of speech and express.ion is
necessary, for self expre.ssion which is an important means of free con- B
science and self fulfilment.
1.2. The right to communicate includes right to communicate
through any media that is available whether print or electronic or audio·
visual. The freedom of speech and expreS9ion includes freedom of the C
press. The freedom of the press in terms includes right to circulate and
also to determine the volume of such circulation. This freedom includes
the freedom to communicate
or circulate one's opinion without
inter
ference to as large a population in the country as well as abroad as is
possible to reach. This fundamental right can be limited only
by reasonable
restrictions under a law made for the purposes mentioned in Article 19(2)
D
of the Constitution.
Romesh Thapar v. State of Madras,
[1950) SCR 594; Brij Bhushan v.
State of Delhi, [1950) SCR 605; Hamdard Dawakhana (Wakf) Lal Kuan,
Delhi v. Union of India, (1960) 2 SCR 671; Sakal Papers (P) Ltd. v. Union E
of India, (962) 3 SCR 842; Bennett Coleman and Co. v. Union of India,
(1972} 2 ~CC 788; Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union
of India, [1985) 1 SCC 641; Odyssey Communications Pvt. Ltd. v. Lok
vidayan Sanghatana, [1988) 3 SCC 410; S. Rangarajan v. P. Jagjivan Ram
and Ors., [1989) 2 SCC 574; Printers (Mysore) Ltd. v. Asst. Commercial Tax
Officer,
[1994) 2 SCC 434 and Life Insurance Corporation of
India v. F
Professor Manubhai D. Shah~ (1992) 3 SCC 637, referred to. .
Ex parte Jackson (96) US 727; Lovell v. City of Griffin, (303) US 444;
Mutual Film Corporation v. Industrial Commission, 236," US 230 1915;
Burstyn v. Wilson, (343) US 495; Schenck v. United Stales, (249) US 47; G
Temiiniello v. Chicago, (93) L.ed. 1131: 337 US 1 (1949) and National
Broadcasting Company
v. United States of America, 319
US 190-238: 87 L.ed.
(1344), referred to.
1.3 There is a built-in limitati(!n on the use of electronic media
because the airwaves are a public property and are controlled by the H
1040 SUPREME COURT REPORTS [1995] 1 s.c.R:
A Government or are not available on account of the scarcity, costs and
· competition. .
Red Lion Broadcasting Co. v. Federal Communications Commission,
395 US 367: 23 L. ed. 2d 371; Columbia Brpadcasting System v. Democratic
· National Committee, 412 US 94: 36 L.Ed. td 772; Federal Communications
B Commission v. WNCN Listeners Guild 450 US 582: 67 L.Ed. 2d 521; City of
Los Angeles & Depaltment of Water and Power v. Prefe"ed Communication
Inc., 476 US 488: 90 L.ed. 2d 480; FCC v. Pacifica Foundation, 438 US 726
and Third Television Case, 57 B Verf GE 295, (1981), referred to.
Civil Liberties
& Human Rights authored by David Feldman; Eric
C Barendt, Broadcasting Law, 1993 Edn.; Lee
Bol#nger, Freedom of the Press
and Public Access; Rationale of Public Regulation of Media and Df!mpcracy.
and the Mass Media, (C~1_11bridge, 1990), referred to.
1.4 The rest:rictions which the electronic media suffers in addition
D to those suffered by the print media, are that (i) the airwaves are a public
property and they have to be used for the benefit of the society at large,
(ii)
the frequencies are limited and (iii) media is subject to pre-censorship.
The other limitation, viz., the reasonable restrictions imposed by law made
for the purposes mentioned in Article 19 (2) is common to
all. the media.
E 1.5. If the right to freedom of speech and expression includes the 1
ri~t to disseminate information to· as wide a section of the population as
is po.ssible, the access which enables the right to be so exercised is also an
integral part of the said right.
2.1.
To have a representative central agency to
ensu~ the viewers' .
F right to be informed adequately and truthfully is a part of the right of the
viewers under Article 19(1)(a).
2.2. Since the airwaves/frequencies are a public property and are also
limited, they have to be
used in the best interest of the society and this can
G be done either by a central authority by establishing its own broadcasting
network
or regulating the grant of licences to other agencies, including the
privaJe agencies. '
2.3 The Central Government shall take immediate steps to establish
an independent autonomous public authority representative of all sections
H and interests in the society to control and regulate the use of the airwaves.
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL 1041
2.4 The contention that on that account the restrictions to be im-A
posed on the right under Article 19(1)(a) should be in addition to those
/'T permissible under Article 19(2) and dictated by the use of public resources
in the best interests of the society
at large, is to misconceive both the
content of the freedom of speech
and expression and the problems posed
by the element of public property in, and the alleged scarcity of, the
B
frequencies as well as by the wider reach of the media.
3.1 What CAB was claiming was
Got a commercial right to exploit
the event.
3.2 when a telecaster desires to telecast a sporting event, the free
c
speech element is not absent from his right. The degree of the element will
depend upon the character of the telecaster who claims the right.
3.3 If while pursuing their objective of popularising the sports by
selecting the best available means sports organisers incidentally earn some
revenue, that
will not convert them either into commercial organisations
D
or the right claimed by them to explore the said means, into a commercial
right
or interest.
4.1. Doordarshan could not refuse to telecast the event except for
reasons of non-availability
of frequencies or for grounds available under
Article 19(2)
or for considerations of public interest involved in the use of E
the frequencies as public property.
4.2. The fact
that Doordarshan was prepared to telecast the events
only on its terms shows
that the frequency was available. Hence, scarcity
of frequencies
or public interest cannot be pressed as grounds for refusing
F
to telecast.
4.3. The organisers of the events had every right to create terrestrial
signals of their event and to sell
it to whomsoever they thought best so long
as such creation of the signal and the sale thereof was not violative of any
law made under Article 19(2)
and
was. not an abuse o~ t~e frequencies
G
which are a public property.
~
5. The decision to form the nodal m~istry to coordinate the activities
of all the concerned ministries and· departments was unexceptionable. But
the time of taking the decision and its background was not without its
signiticance. H~wever, there was no adequate material on record to estab- H
.. 1042 SUPREME COURT REPORTS "(1995) 1 S.C.R.
A lish a nexus between the MIB/DD and the aforesaid actions of the other
authorities.
6. The order of the High Court was emi(!ently in the interests of the
viewers whatever its merits on the other aspects of the matter. The High
Court would apportion between the CAB and the DD the revenues
B generated by the event after hearing the parties.
c
Per Jeevan Reddy, J. (Broadly agreeing with the majority view) :
1.1 Public broadcasting is implicit in Article 19(l)(a), private broad
casting is not.
1.2 The free speech right guaranteed to every citizen of this country
does·
not encompass the right to use
. these airwaves at his choosing.
Conceding such a right would
be detrimental to the free speech rights of
the body of citizens inasmuch as only the
privileged few -powerful
D economic, commercial and political interests • would come to dominate the
media.
1.3 The right to establish the operate a private 1V station does not
flow from Article 19(l)(a); such a right is not implicit in it. The question
whether such right should
be given to the citizens of
lhis country is a
E matter of policy for the Parliament.
Life Insurance Corporation of India v. Manubhai D. Shah, [1992) 3
SCC 637 and Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana,
[1988) 3 sec 410, referred to.
F Burstyn v. Wilson 343 US 495; Los Angeles v. Prefe"ed Communica-
tions,
476
U.S. 488 = 99 L.ed. 2d 480; Columbia Broadcasting System v.
Democratic National Committee, 412 US 94 : 36 L.Ed. 2d 371; The Third
TelevisiOn Case, 57 B Verf GE 295 (1981); Decision 59/60 (1960)
Giurisprudenza Constituzionale
759; Decision 225/74 (1974) Giurisprudenza
G Constitutuzionale, 1975; Decision
202176 (1976) Giurizprudenza Con
stituzionale
1276; Informationsverein Lentia v. Austria
• 15 Human Rights
Law Journal 31 ·judgment dated 24th November, 1993; N.B.C. v. U.S. (319
US 190 (1943); Red Lion Broadcasting Company v. F.C.C. 395 US 367: 23£
Ed. 2d. 37); F.C.C. v. National Citizens Committee for Broadcasting, 436 US
775; Miami Herald Publishing Company v. Tomi/lo, (1974-418 U.S.241); New
H York Times v. United States, [1971) 403 U.S. 713; United States v. Nixon,
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL 1043
(1974) 418 U.S. 683; Bowman v. Secular Society Ltd., (1917) A.C. 406; A
Castells v. Spain, (14 EHRR 445) and Mutual Film Corp. v. Industrial Com.
,_,1--r
of Ohio, 236 US 230 : 59 L.ed. 442, referred to.
2.1 Monopoly of the broadcasting media, whether by Government or
by an individual, body or organisation is unacceptable. Clause (2) of
Article
19 does not permit a monopoly in the matter of freedom of speech B
and expression as is permitted by clause (6) of Article 19 vis-a-vis the right
guaranteed
by Article 19(1)(g).
-\....
2.2. The broadcasting media should be under the control of the
public as distinct from Government. This is the command implicit in
c
Article 19(1)(a). It should be operated by a public statutory corporation whose composition must be such as to ensure its impartiality in political,
economic and social matters and on all other public issues.
It must be
required by law to present news, views and opinions in a balanced way
ensuring pluralism and diversity of opinions and views. It' they must
provide equal access to all the citizens
and groups to avail of the medium. D ..._.,.__
2.3. Airwaves being public property, it is the duty of the State to see
that airwaves are so utilised as to advance the free speech right of the
citizens which is served
by ensuring plurality and diversity of views,
opinions and ideas. This is imperative in every democracy where freedom
E
of speech is assured.
3. The right to telecast the matches, including the right to import,
instal and operate the requisite equipment,
was really sought by the foreign
agencies and not'
by the
petitioners~ Hence, the question of violation of their
right under Article 19(1) (a) resulting from refusal of licence/permission
F
to such foreign agencies did not arise.
4.1 The charge of malafides or for that matter, the charge of arbitrary
or authoritarian conduct levelled against the governmental
al_lthorities is
unacceptable.
4.2 Neither the CAB nor its foreign agent had applied for or obtained
G
the licence/permission under Section 4(1). The permissions granted by
~
other departments were no substitute for the licence under the proviso to
Section 4(1).
4.3 In the absence of such a licence, the CAB had no right in law to
H
1044 SUPREME COURT REPORTS [1995] 1 S.C.R.
A have its matches telecast by an agency of its choice.
B
c
D
E
F
G
H
4.4. The objection to a foreign agency coming in and telecasting such
events without
even obtaining a licence under the proviso to Secti"on ;~(1)
of the Telegraph Act was ma/afide or arbitrary.
4.5 There was nothing to show that seizure of imported equipment
by customs authorities was at the instance of Doordarshan.
CIVIL APPELLATE/ORIGINAL JURISDICTION: Civil Appeal
Nos. 1429-30of1995.
From the Judgment and Order dated' 12.11.93 of the Calcutta High
,Court in F.MA.T. Nil of 1993.
WITH
Writ Petition (C) No. 836 of 1993.
(Under Article 32 of the Constitution of India.)
Dipankar Gupta, Harish
N.
Salve, Aron Jaitley, Kapil Sibal, Rajiv
Mehta, Kailash Vasdev, Ms. Meen~hi Grover, U.N. Banerjee, B.V.
Desai, M. Sharma, P. Malik, Ms. Radha Rangaswamy and Naveen Chawla
for the appearing parties.
The Judgments of the Court were delivered by
SAWANT, J. Leave granted.
It will be convenient to answer the questions of law that arise in the
present case, before we advert to the factual controversy between the
parties. The questions of law are :
(1) Has an organiser
or producer of any event a right to get the event
telecast through an agency
of his choice whether national or foreign?
(2) Has such organiser a choice
of the agency of telecasting, par-
ticularly when the exercise
of his right, does not make demand on any of
the frequencies owned, commanded or controlled
!Jy the Government or ·
the Government agencies like the Videsh SanChar Nigam Limited (VSNL)
or Doordarshan (DD)?
..,..i--
-+---
~
~ ..
y
J
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSI'. OF BE:\GAL [SA WANT, J.J 1045
(3) Can such an organiser be prevented from creating the terrestrial A
signal and denied the facility of merely uplinking the terrestrial signal to
the satellite owned
by another agency whether foreign or national?
(4) What,
if any, are the conditions
which can be imposed by the
Government department
which in the present case is the Ministry of B
Information and Broadcasting (MIB) for (a) creating terrestrial signal of
the event and (b) granting facilities of uplinking to a satellite not owned
or controlled
by the Government or its agencies? On answers to these questions depend the answers to the incidental
questions such
as (i) whether the Government or the Government agencies C
like DD in the present case, have a monopoly of creating terrestrial signals
and of telecasting them or refusing to telecast them, (ii) whether the
Government or Government agencies like DD can claim to be the host
broadcaster for all events whether produced or organised
by it or by
anybody else
in the country and can insist upon the organiser or the agency D
for telecasting engaged by him, to take the signal only from the Govern
ment or Government agency and telecast it only with its permission or
jointly with it.
2. To appreciate the thrust of the above questions and the answers
to them, it
is necessary first to have a proper understanding of what
'telecasting' means and what its legal dimensions and consequences are.
Telecasting
is a system of communication either audio or visual or both.
We are concerned in the present case with audio-visual telecommunication.
The first stage
in telecasting is to generate the audio-visual signals of the
events or of the information
whi~h is sought to be communicated. When
the event to be telecast takes place on the earth, necessarily the signal is
generated on the earth by the requisite electronic mechanism such
as the
audio-visual recorder. This stage
may be described as the recording stage.
E
F
The events may be spontaneous, accidental, natural or organised. The
spontaneous, accidental and natural events are
by their nature uncon
trollable. But the organised events can be controlled by the
law of the land. G
In our country, since the organisation of an event
is an aspect of the
fundamental right to freedom of speech and expression protected
by
Article 19 (1) (a), the law can be made to control the organisation of such
events only for the purposes of imposing reasonable restrictions in the
interest of the sovereignty and integrity of the country, the security of the
H
1046 SUPREME COURT REPORTS [1995) 1 S.C.R.
A State, friendly relations with foreign State, public order, decency 0r
morality or in relation to contempt of co.urt, defamation or incitement to
an offence as laid down under Article
19 (2) of the Constitution. Although,
therefore, it
is not possible to make law for prohibiting the recording of
spontaneous, accidental or natural events,
it is possible for the reasons
B mentioned in Article 19 (2), to restrict their telecasting. As regards the
organised events, a law can be made for restricting or prohibiting the
organisation of the event itself, and also for telecasting it, on the same
grounds
as are mentioned in Article 19(2). There
cannot, however, be
restrictions on producing and recording the event on grounds not per
mitted
by Article 19 (2). It, therefore, follows that the organisation or
c production of an event
and its recording can~ot be prevented except by
law permitted by Article
19(2). For the same reasons the publication or
communication of the recorded event through
the mode of cassettes cannot
be restricted
or prevented except under such law. All those who have got
the apparatus of video cassette recorder (VCR) and the television screen
D can, therefore, view and listen to such recorded event (hereinafter -referred
to, for the sake
of convenience, as 'viewers'). In this process, there is no
demand on any frequency or channel since there is no live-telecast of the
event. The only additional restriction on telecasting or live-telecasting of
such event will be the lack of availability of the frequency or channel.
E 3.
Since in the present case, what is involved is the right to live-
telecast the event,
viz.,
the cricket matches organised by the Cricket As
sociation of Bengal, it
is necessary to understand the various issues involved
in live telecasting. It may be made clear at the outset, that there may as
well be a file telecast (i.e., telecasting
of the events which are already
F recorded by the cassette). The issues involved in file-telecasting will also
be more or less the same and therefore, that subject is not dealt with
separately. Telecasting live or file necessarily involves the use of a frequen
cy or a channel.
G The telecasting is of three types, (a) terrestrial, (b) cable and (c)
satellite. In the first case, the signal
is generated by the camera stationed
at the
spot of the event, and the signal is then sent to the earthly telecasting
station such as the T.V. Centre which in
tum relays it though its own
frequencies to all the viewers who have T.V. screens/sets. In the second
case,
viz., cable telecasting, the cable operator receives the signals from the
H satellite by means of the parabolic dish antenna and relays them to all those
._,..!-·
,,,/1
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [SA WANT, J.) 1047
T.V. screens which are linked to his cable. He also relays the recorded file A
programmes or cassettes through the cable to the cable-linked viewers. In
this case, there
is no restriction on his
!eceiving the signals from any
satellite to which his antenna is adjusted. There is no demand made by him
on any frequency or channel owned or controlled by the national govern
ment or governmental agencies. The cable operator can show any event B
occurring in any part of the country or the world live through the frequen~
cies if his dish antenna can receive the same. T~e only limitation from
which the cable T.V. suffers
is that the programmes relayed by it can be
received
only by those viewers who are linked to the dish antenna
con
cerned. The last type, viz., satellite T.V. operation involves the use of a
frequency generated, owned or controlled
by the national Government or C
the Governmental agencies, or those generated, owned and controlled by
other agencies. It is necessary to bear in mind the distinction between. the
frequencies generated, owned and controlled
by the Government or
Governmental agency and those generated and owned
by the other agen-
cies.
This is so
because__,generally, as in the present case, one of the D
contentions against the right to access to telecasting is that there are a
limited number of frequencies and hence there is the need to utilise the
limited resources for the benefit -of all sections of the society and to
promote all social interests
by giving them priority as determined by some
central authority.
It follows, therefore, that where the resources are un- E
limited or the right to telecast need not suffer for want of a frequency,
objection on the said ground would
be misplaced. It may be stated .here
that in the present case, the contention of the MIB and DD against the
right
to telecast claimed by the Cricket Association of Bengal
(CAB)/Board
of Control for Cricket in India (BCCI) was raised only on
the ground of the limitation of frequencies, ignoring the fact that the
CAB/BCCI had not made demand on any of the frequencies generated or
owned
by the MIB/DD. It desired to telecast the cricket matches organised
F
by it through a frequency not owned or controlled by the Government but
owned
by some other agency. The only permission that the CAB/BCCI
sought
was to uplink to the foreign satellite the signals created by
its own G
cameras and the earth station or the camera or the cameras and the earth
station of its agency to a foreign satellite. This permission
was sought by
the CAB/BCCI from
VSNL which is the Government agency controlling
the frequencies. The permission again cannot be refused except under law
made in pursuance of the provisions of Article
19 (2) of the Constitution. H
1048 SUPREME COURT REPORTS [1995) 1 S.C.R.
A Hence, as stated above, one of the important questions to be answered in
the present case
is whether the permission to uplink to the foreign satellite,
the signal created by the CAB/BCCI either by itself or through its agency
can be refused except on the ground stated in
-the law made under Article
19(2).
B
c
4. This takes us to the content of the fundamental right to the
freedom of speech and expression guaranteed by Article 19(1) (a) and the
implications of the restrictions permitted to be imposed on the said right,
by Article 19(2). We will first deal with the decisions of this Court where
the dimensions of the right are delineated.
In Romesh Thappar v. The State of Madras,
[1950) SCR 594, the facts
were that the Provincial Government in exercise of its powers under
Section 9(1-A) of Madras Maintenance of Public Order Act, 1949, by an
order imposed a
ban upon the entry and circulation of the petitioner's
D journal 'Cross Roads'. The said order stated that it was being passed for
the purpose of securing the public safety and the maintenance
of public
order.
The petitioner approached this Court under Article 32 of the
Constitution claiming that the order contravened the
petitioner's fun
damental right to freedom of speech and ~xpression. He also challenged
the validity
of
Section 9 (1-A) of the impugned Act. The majority of the
E Court held that the freedom of speech and expression includes freedom of
propagation of .ideas and that freedom is ensured by the freedom of
circulation. In support of this view, the Court referred to two decisions of
the U.S. Supreme Court viz., (i) Ex parte Jackson (96 US 727) and (ii)
Lovell v. City of Griffin (303 US 444) and quoted with approval the
F following passage therefrom : " Liberty of circulation is as essential to that
freedom as the liberty of publication. Indeed, without circulation the
publication wo'.lld
be of little value".
Section 9 (1-A) of the impugned Act
authorised the Provincial Government, "for the purpose of securing the
public safety or the maintenance of public order, to prohibit or regulate
entry into or the circulation, sale or distribution in the Province of Madras
G or any part thereof or any document or class of documents". The question
that the Court had to answer was whether the impugned Act insofar as it
contained the aforesaid provision was a law relating to a matter which
undermined the security of, or tended to overthrow the State. The Court
held that "public order"
is an expression of wide connotation and signifies
H that state of tranquility which prevails among the members of a political
(
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL (SA WANT, J.) 1049
society as a result of the internal regulations enforced by the Government A
which they have established. The Act was passed by the Provincial Legis
lature under Section 100 of the Government of India Act, 1935, read with
Entry I of List
II of the
Seventh Schedule to that Act. That Entry, among
others, comprised "public order" which was different from "public safety"
on which subject the Provincial Legislature was not competent to make a
law. The Court distinguished between "public
order" and "public safety" and
held that public safety was a part of the wider concept of public order and
if it
was intended to signify any matter distinguished from and outside the
content of the expression "public
order", it would not have been competent
for the Madras Legislature to enact the provision so far as it related to
public safety "Public safety" ordinarily means security of the public or their
freedom from danger. In that sense, anything which tends to prevent
danger to public health
may also be regarded as securing public safety. The
meaning of the expression must, however, vary according to the context.
The Court then rejected the argument that the securing of the public safety
B
c
or maintenance of public order would include the security of the
State D
which was covered by Article 19(2) and held that where a law purports to
authorise the imposition of restrictions on a fundamental right in language
wide enough to cover restrictions both within and without the limits of
constitutionally permissible legislative actions affecting such right, it
is not
possible to uphold it even insofar as it may be applied within the constitu
tional limits as it
is riot severable.
So long as the possibility of its being E
applied for purposes not sanctioned by the Constitution cannot be ruled
out, it may be held to be wholly unconstitutional and void. In other words,
clause (2) of Article
19 having allowed the imposition of restrictions on the
freedom of speech and expression only in cases where danger to the
State
is involved, an enactment which .is capable of being applied to cases where
no such danger could arise, cannot be held to be constitutional and valid
to any extent.
F
The above view taken by this Court was reiterated in Brij Bhushan
&Anr.
v. The State of Delhi,
[1950] SCR 605 where Section 7 (1) (c) of the
East Punjab Public Safety Act, 1949 as extended to the Province of Delhi, G
providing that the Provincial Government or any authority authorised by it
in this behalf, if satisfied that such action was necessary for preventing or
combating any activity prejudicial to the public safety or the maintenance
of public order, may pass an order that any matter relating to a particular
subject or class of subjects shall before publication be submitted for .
H
1050 SUPREME COURT REPORTS [1995] 1 S.C.R.
A · . scrutiny, was held as unconstitutional and void. The majority held that the
said provision was violative of Article 19 (1) (a) since it was not a law
relating to a matter which undermined the security of, or tended to -f°""..
overthrow the State within the meaning of the then saving provision con-
tained in Article
19 (2). The Court further unanimously held that the
B imposition of pre-censorship of a journal was a restriction on the liberty of
the press which
was an essential part of the right to freedom of speech and
expression declared by article 19(1)(a).
In Hamdard Dawakhana (Wakf) Lal Kuan, Delhi & Anr. v.
Union of
India & Ors., [1960) 2 SCR 671, the Court held that the object of the Drugs
C and Magic Remedies (Objectionable Advertisements) Act, 1954 was the
prevention
of self-medication and self-treatment by prohibiting instruments
which may be used to advocate the same
or which tended to spread the
evil. Its object was not merely the stopping of advertisements offending
against
morcllity and decency. The Court further held that advertisement is
D no doubt a form of speech but true character is reflected by the object for
the promotion of which it
is employed. It is only when an advertisement is
concerned with the expression or propagation of ideas that it can be said
to relace to freedom of speech but it cannot be said that the right to publish
..,.___..
and distribute commercial advertisements advertising an individual's per-
sonal business
is a part of the freedom of speech guaranteed by the
E Constitution. The provisions of
the Act which prohibited advertisements
commending the efficacy, value and importance in the treatment
of par
ticular diseases of certain drugs and medicines did not fall under Article
19 (l)(a) of the Constitution. The scope and object of the Act, its true
nature and character was not interference with the right of freedom
of
F speech but it dealt with trade
and business. The provisions of the Act were
in the interest of the general public and placed reasonable restrictions on
the trade and business of the petitioner and were saved by Article 19(6).
The Court further held that the first part of Section 8 of the impugned Act
which empowered any person authorised by the State Government to seize
and detain any document, article or thing which such person had reason
G to believe, contained any advertisement contravening the provisions of the
Act imposed an unreasonable restriction on the fundamental rights of the
petitioner and
was unconstitutional. According to the Court, the said
operation
of Section 8 went far beyond the purposes for which the Act was
enacted and failed to provide proper safeguards in regard to the exercise
~
H of the powers· of seizure and detention· as had been provided by the
f
I
MIN. OF INFORMATION AND BROADCASI1NG v. CRICKET ASSN. Ol'BENGAL [SA WANT, J.] 1051
legislature in other statutes. However, if this operation was excised from A
,.,,:·1·
the section the remaining portion would be unintelligible and could not be
upheld.
In
Sakal
Papers (P) Ltd. & Ors. v. The Union of India, [1962) 3 SCR
842 what fell for consideration was the Newspaper (Price and Page) Act,
B
1956 which empowered the Central Government to regulate the prices of
newspapers in relation to their pages and size and also to regulate the
allocation
of space for advertising matters and the Central Government
order made under the said Act, viz, the Daily Newspaper
(Price and Page)
Order, 1960 which fixed the maximuin number of pages that might be
published by the newspaper according to the price charged and prescribing c
the nature of supplements that could be issued. The Court held that the
Act and the Order were void being violative of Article 19(1) (a) of the
Constitution. They were also not saved by Article 19 (2). The Court
asserted that the freedom
of speech and expression guaranteed by Article
19(1) (a) included the freedom
of the press. For propagating his ideas a
D
citizen had the right to publish them, to disseminate them and to circulate
)_..!.-
them, either by word or mouth or by writing. The right extended not merely
to
the matter which he was entitled to circulate but also to the volume· of
circulation. Although the impugned Act and the
Order placed restraints
on the volume of circulation, their very object was directed against circula-
tion. Thus· both interfered with the freedom of speech and expression. The E
Court also held that Article 19 (2) did not permit the State to abridge the .
said right in the interest of general public. The Court also held that the
State could not make a law which directly restricted one guaranteed
freedom for securing the
better enjoyment of another freedom. Freedom
of speech could not be restricted for the purpose of regulating the com-
F
-~
mercial aspect of the activities of newspapers. In this connection, the
following observations
of the Court are relevant:
"Its object thus is to regulate something which, l!-S already stated,
is directly related to the circulation of a newspaper. Since circula-
G .. tion of a newspaper is a part" of the right of freedom of speech the
Act must be regarded as one directed against the freedom of
----r speech. It has selected the fact or thing which is an essential and
basic attribute of the conception of the freedom of speech, viz.,
the right to circulate one's views to all whom one can reach or care
to reach for the imposition of a restriction. It seeks to achieve its
H
1052
A
B
c
D
E
F
G
H
SUPREME
COURT REPORTS [1995] 1 S.C.R.
object of enabling what are termed the smaller newspapers to
secure larger circulation
by provisions which
Without disguise are
aimed at restricting the circulation of what are termed the larger
papers with better financial strength. The impugned law far from
being one, which merely interferes with the right· of freedom of
speech incidentally, does so directly though it seeks to achieve the
end by purporting to regulate the business aspect
of a newspaper.
Such a course is not permissible and the courts must be ever
vigilant in guarding perhaps the most precious of all the freedoms
guaranteed by our Constitution. The reason for this
is obvious. The
freedom
of speech and expression of opinion is of paramount
importance under a democratic Constitution which envisages
chan
ges in the composition of legislature and governments and must
be preserved. No doubt, the law in question was made upon the
recommendation of the Press Commission but since its object is
to affect directly the right of circulation of newspapers which would
necessarily undermine their power to influence public opinion it
cannot but
be regarded as a dangerous weapon which is capable
of being used against democracy itself.
x x x x x x x
The legitimacy of the result intended to be achieved does not
necessarily imply that every means to achieve it
is permissible; for
even
if the end is desirable and permissible, the means employed
must not transgress the limits laid down by the Constitution,
if they
directly impinge on any of the fundamental rights guaranteed by
the Constitution it
is no answer when the
constitutionality of the
measure
is challenged that apart from the fundamental right infr
inged the provisions
is otherwise legal.
Finally it
was said that one of its objects is to give some kind
of protection to small or newly started newspapers and, therefore,
the Act
is good.
Such an object may be desirable but for attaining
it the State cannot make inroads on the right of other newspapers
which
Art. 19(1) (a) guarantees to them. There may be other ways
of helping them and it is for the
State to search for them but the
one they have chosen falls foul of the Constitution.
To repeat, the only restrictions which may be imposed on the
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [SAWANT,J.] 1053
rights of an individual under Art. 19(1)(a) are those which cl. (2) A
of Art 19 permits and no other" .
.../....,
In Bennett Coleman & Co. & Ors. v. Union of India & Ors., f 1972] 2
I
SCC 788, the majority of the Constitution Bench held that newspapers
should be left free to determine their pages, their circulation and their new
B
edition within their quota which has been fixed fairly. It is an abridgment
of freedom of expression to prevent a common ownership unit from
starting a new edition or a new newspaper. A common ownership unit
should be free to start a new edition out
of their allotted
quota· and it would
. _..__
be logical to say that such a unit can use its allotted quota for changing its
page structure and circulation of different editions
of same paper. The c
compulsory reduction to ten pages offends Article 19(1)(a) and infringes
the freedom
of speech and expression. Fixation of page limit will not only
depriv~ the petitioners of their economic viability, but will also restrict the
freedom of expression
by reason of the compulsive reduction of page level
entailing reduction of circulation and including the area of coverage for
D
news and views. Loss of advertisements may not only entail the closing
down, but
will also affect the circulation and thereby impinge on freedom
>-~
of speech and expression. The freedom of press entitles newspapers to
achieve any volume of circulation. It was further held that the machinery
of import control cannot be utilised to curb or control circulation or growth
E
or freedom of newspapers. The news print control policy was in effect a
newspaper control policy and a news
paper control policy is ultra
vires the
Import Control Act and the Import Control Order. The majority further
held that by the freedom
of press is meant the right of citizens to speak
and publish and express their views. The freedom
of the press embodies
the right
of the people to read and it is not anti-thetical to the right of the F
-~ people to speak and express. The freedom of speech and expression is not
only in the volume
of circulation but also in the volume of news and views.
The press has the right
of free publication and their circulation without any
obvious restraint on publication.
If the law were to single out press for
laying down prohibitive burdens on it that would restrict circulation,
G
penalise freedom of choice as to personnel, prevent newspapers from being
I started and compel the press to Government aid. This would violate Article
I 19(1) (a) and would fall outside the protection afforded by Article 19(2).
-k-
The First Amendment to the American Constitution contains no exception
-
like our Article 19(2). Therefore, American decisions have evolved their
own exceptions. The American decisions establish that a Government
H
1054 SUPREME COURT REPORTS {1995) l S.C.R. ·
A regulation is justified in America as an important essential Government
B
. interest which is unrelated to the suppression of free expression. The true
test is whether the effect of the impugned action is to take away or abridge
fundamental rights.
The object of the law or executive action is irrelevant
when it
is established that the petitioner's fundamental right is infringed.
In Indian Express Newspapers (Bombay)
Pvt. Ltd. & Ors. v. Union of
India & Ors., [1985) 1SCC641, the Court held that the expression "freedom
of the press" has not been used in Article 19, but it is comprehended within
Article
19(l)(a). This expression means a freedom from interference from
authority which would have the effect
of interference with
the content and
C circulation of newspapers. There cannot ·be any interference with that
freedom in the name
of public interest. The purpose of the press is
to
advance the public interest by publishing facts and opinions without which
democratic electorate cannot make responsible judgments. Freedom
of the
press is the heart
of social and political intercourse. It is the
primary duty
D of the Courts to uphold the freedom of the press and invalidate all laws or
administrative actions which interfere with it contrary to the constitutional
mandate.
The freedom of expression has four broad social purposes to
serve; (i) it helps an individual to attain self fulfilment, (ii) it assists in the
discovery
of truth, (iii) it strengthens the capacity of an individual in
participating in decision-making
and (iv) it provides a
mech~sm by which
E it would be possible to establish a reasonable balance between stability and
social change. All members.of the society should be able to form their Qwn
beliefs and commtinicate them freely to others. In sum, the fundamental
principle involved here is the people's right
to know. Freedom of speech . and expression should, therefore, receive a generous support from all those
F who believe in the participation of people in the administration. It is on
account of this special interest which society has in the freedom of speech
and expression that the llPProach of the Government should be more
cautious while levying taxes on matters concerning newspaper industry than
while levying taxes on other matters.
The Courts are
there always to strike
down curtailment
of freedom of press by unconstitutional means. The
G delicate task of determining when it crosses from the
'area of profession,
occupation, trade, business
or industry into the area of freedom of
expres
sion and interferes with that freedom is entrusted to the Courts. In deciding
the reasonableness of restrictions imposed on any fundamental right the
Court should take into consideration the nature of the right alleged
to have
H been infringed, the underlying purpose of the restrictions imposed, the
~-
...
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [SA WANT, J.) 1055
disproportion of the imposition and the prevailing conditions including the A
social values whose needs are sought to be satisfied by means of the
ft restrictions. The imposition of a tax like the custom duty on news print is
an imposition of tax on knowledge and would virtually amount to a burden
imposed on a man for being literate and for being conscious of his duty as
a citizen to inform himself of the world around him. The pattern
of the law B
imposing custom duty and the manner in which it is operated, to a certain
extent, exposes the citizens who are liable to pay the custom duties to the
vagaries of executive discretion.
In
Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana and
others, [1988) 3 sec 410, it was held that the right of citizens to exhibit c
films on Doordarshan subject to the terms and conditions to be imposed
by . the Doordarshan
is a part of the fundamental· right of freedom of
expression guaranteed under Article
19 (1) (a) which can be curtailed only
under circumstances set out under Article
19(2}. The right is similar to the
right
of citizen to public his views through any other media· such as D
newspapers, magazines, advertisment hoardings etc. subject to the terms
and conditions
of the owners of the media. The freedom of expression is
a preferred right which is always very zealously guarded by the
Supreme
Court. However, on the question whether a citizen has a fundamental right
to establish a private broadcasting station
or
T.V. Centre, the Court
reserved its opinion for decision in an appropriate case. The matter had
E
come up before this Court against
an interim injunction order issued by
the
High Court as a result of which 12th and 13th episodes of the film
"Honi-Anhoni" could not be telecast on the scheduled dates. The Court
held that it
was not the case or"the writ petitioners before the High Court
that the exhibition
of the said serial was in contravention of any specific F
law or direction issued by the Government. They had
also not alleged that
the Doordarshan had shown any undue favour to the· appellant and the
sponsoring institutions resulting in any financial loss to the public exche
quer. The objection to the exhibition of the
film had been raised by them
on the basis that it was likely to spread false or blind beliefs among the
members
o( the public. They had not asserted any right conferred on them G
by any statute or acquired by them under a contract which entitled them
to secure an order
of temporary injunction. The
appellant before this court
had denied that the exhibition of the serial was likely to affect prejudicially
the wellbeing
of the people. The
Union of India and Doordarshan had
pleaded that the serial was being telecast after following the prescribed
H
1056 SUPREME COURT REPORTS [1995] l $.C.R.
A procedure and taking necessary precautions. The writ petitioners had not
produced any material apart from their own statements to show that the
exhibition
of the serial was prima facie prejudicial to the community. This
court held that the High Court had overlooked that the issue
of an order
of interim injunction would infringe the fundamental right of the producer
of a serial. In the absence of any prima facie evidence of gross prejudice
B that was likely to be caused to the public generally by the exhibition of the
serial, it was not just and proper to issue
an order of temporary injunction.
In
S. Rangarajan v. P. Jagjivan Ram & Ors., [1989] 2 SCC 574, it was
)
--
held that the freedom of speech under Article 19(1) (a) means the right to -,..L... ·
C express one's opinion by words of mouth, writing, printing, picture or in
other manner.
It would
thus include the freedom of communication and
their right to propagate or publish opinion. The communication of ideas
could
be made through any medium, newspapers, magazine or movie. But
this right is subject to reasonable restriction in the large interests
of the
D community and the country set out in Article 19(2). These restrictions are
intended to strike a proper balance between the liberty guaranteed and the
social interests specified in Article 19(2). This is the difference between
the First Amendment to the
U.S. Constitution and Article 19 of our 7-"-
Constitution. The decisions bearing on the First Amendment are, there-
fore, not useful to us except the
broad principle and purpose of the
E guarantee. The Court, in this connection, referred to the
U.S. decisions in
Mutual Film Corporation
v. Industrial Commission, 236
US 230 (1915),
Burstyn
v. Wilson, 343
US 495 and Schenck v. United States, 249 US 47. The
Court further held that there should be a compromise between the interest
of freedom of expression and social uiterests. The Court cannot simply
balance the two interests as
if they are
of. equal weight. The Court's
F commitment to freedom of expression demands that it cannot be sup
pressed unless the situations created by allowing the freedom are pressing
and the community interest is endangered. The anticipated danger should
not
be remote, conjectural or far-fetched. It should have proximate and
direct nexus with the expression. The
exi}ression of thought · should be
G intrinsically dangerous to the public interests. It should be inseparably
locked
up with the action contemplated like the equivalent of a "spark in . a powder keg." Though movie enjoys the guarantee under Article 19(1)(a),
there is one significant difference between the movie
and other modes of
communication. Movie motivates thought and action and assures a high
degree
of attention and retention. In view of the scientific improvements
H in. photography and production, the present movie is a powerful means
,9f_
,
__ ,
MIN. OF INFORMATION AND BROADCASilNG v. CRICKET ASSN. OP BENGAL [SA WANT, J.) 1057
rommunication. It has a unique capacity to disturb and arouse feelings. It A
has much potential for evil as it has for good. With these qualities and since
it caters for mass audience
who are generally not selective about what they
watch, the movie cannot be equated with other modes of communication.
B
It cannot be allowed
to function in a free marketplace just as does the
newspaper or magazines. Censorship
by prior restraint is, therefore, not
only desirable but also necessary. But the First Amendment to the
U.S.
Constitution does not permit any prior restraint, since the guarantee offree
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. Therefore, censorship with
prior restraint must necessarily be reasonable that could be saved by the
C
well accepted principles of judicial review. The standard to be applied by
the board or courts for judging the
film should be that of an ordinary man
of common sense and prudence and
i:.ot that of an out of the ordinary or
hypersensitive man. The board should exercise considerable circumspec-
tion on movies affecting the morality or decency of our people and cultural
heritage of the country. The moral values in particular, should not
be D
allowed to be sacrificed in the guise of social change or cultural assimila
tion. The path of right conduct shown by the great sages and thinkers
of
India and the concept of 'Dharam' (righteousness in
every respect), which
are the bedroCk of our civilisation, should not be allowed to be shaken by
unethical standards. But this does not mean that the censors should have
an orthodox or conservative outlook. Far from it, they must
be responsive E
to social change and they must go with the current climate. However, the
censors may display more sensitivity to movies which
will have a markedly
deleterious effect to lower the moral standards of those
who see it.
However, the producer· may project his own message which the
others may not approve of it. But he has a right to
'think out' and put the
counter-appeals to reason.
It is a part of a
democratic give-and-take to
which one could complain. The State cannot prevent open discussion and
open expression, however hateful to its policies. Everyone has a fundamen-
F
tal right to form his own opinion on any issue of general concern. He can G
form and inform by any legitimate means. The democracy is a government
by the people
via open discussion. The democratic form of government
itself demands its citizens an active and intelligent participation
in the
affairs of the community. The public discussion with people's participation
is a
basic feature and a rational process of democracy which distinguishes H
1058 SUPREME COURT REPORTS (1995) 1 S.C.R.
A it from all other forms of government.
B
Dealing with the film in question, the Court further observed that the
f;ilm in the present case suggests that the existing method or reservation on
the basis of caste
is bad and reservation on the basis of economic back
. wardness
is better. The film also deprecates exploitation of people on caste
consideration. This
is the range and rigours of the film. There is no warrant
for the
view that the expression in the film by criticism of reservation policy
or praising the colonial rule
will affect the security of the State or
sovereignty and integrity of India. There is no utterrance in the film
threatening to overthrow
the government by unlawful or unconstitutional
C means or for secession; nor is there any suggestion for imparing the
integration of the country. Two Revising Committees have approved the
film.
The members thereof come from different walks of life with
variegated experiences. They represent the cross-section
of the community.
They have judged the
film in the light of the objectives of the Act and the
D guidelines provided for the purpose. There is nothing wrong or contrary to
Constitution in approving the film for public exhibition. The producer
or
as a matter of fact, any other person has a right to draw the attention of
the government and people that the existing method of reservation in
educational institutions overlooks merits.
~ether this view is right or
wrong is another matter altogether and at any rate, the Court is not
E concerned with its correctness or usefulness to the people. The Court is
only concerned whether such a view could be. advocated in a film. To say
that one should not
be permitted to advocate that view goes against the
first principle
of our democracy. If the film is unobjectionable and cannot
constitutionally be restricted under Article 19(2), freedom of expression
p cannot be suppressed on account of threat of demonstration and proces
sions or threats of violence. That would tantamount to negation of the rule
of law and a surrender to blackmail and intimidation.
It is the duty of the
State to protect the freedom
of expression since it is a liberty guaranteed
against the State. The State cannot plead its inability to handle the hostile
audience problem. Freedom of expression which
is legitimate and constitu-
G tionally protected cannot be held to ransom by an intolerant group of
people. The fundamental freedom under Article 19{1)(a) can be reasonab
ly restricted only for the purposes mentioned in Article 19(2) and the
restriction must
be justified on the anvil of necessity and not the quicksand
of convenience
of expediency.
Open criticism of governm.ent policies and
· H operations is not a ground for restricting expression.
MIN. OP INFORMATION AND BROADCASTING v. CRICKET ASSN. OP BENGAL (SAWANT,J.) 1059
5. The views taken by this Court in the aforesaid decisions have A
_.,1-.,.-
thereafter been.repeated and. reproduced in the subsequent decisions.
In
Printers (Mysore) Ltd. & Ar.r. v. Asst. Commercial
Tax Officer &
Ors., [1994] 2 SCC 434, it is reiterated that the special treatment given lo
the newspapers has a philosophy and historical background. Freedom of
B
press has been placed on a higher footing than other enterprises. Though
freedom of press
is not expressly guaranteed as a fundamental right, it is
implicit in the freedom of speech and expression .. Freedom of press has
. 'L ..
always been a cherished right in all democratic countries. Therefore, it has
rightly been described as the Fourth Estate, the democratic credentials of
a State are judged today by the extent of freedom the press enjoyed in that
c
State. This decision quotes from the opinion of Douglas, J. in Terminiello
v. Chicago, [93 L.ed 1131: 337
US 1 (1949)) that "acceptance by Govern-
ment of a dissident press
is a measure of the maturity of the nation".
In Life Insurance Corporation of
India v. Professor Manubhai D. Shah,
D
[1992] 3 SCC 637, the respondent-Executive Trustee of the Consumer
)--L Education and Research Centre (CERC), Ahmedabad, after making re-
search into the working of the Life Insurance Corporation (LIC), publi.Shed
a study paper portraying the discriminatory practice adopted by the LIC
by charging unduly high premia from those taking out life insurance
E
policies and thus denies access to insurance coverage to a vast majority of
people
who cannot· afford to pay the high premium. A member of the LIC
wrote a counter article and published it in the daily newspaper "Hindu".
The respondent replied to the same in the said newspaper. The member
of LIC then published his counter-reply in LIC's house magazine. J'he
respondent requested the LIC to publish his rejoinder also in the said
F
magazine. That request was turned down. On these facts, the respondent
filed a writ petition before the High Court challenging the action
of the UC, among other things, on the ground that his fundamental right under
Article 19(1) (a) of the Constitution
was violated by
UC by refusing to
publish his reply. The High Court held that under the pretext and guise of
G
publishing a house magazine, the LIC cannot violate the fundamental rights
of the petitioner. This Court endorsing the
view
taken by the High Court
~ held that the LIC is 'State' within the meaning of Article 12. The LIC Act
requires it to function in the best interest of the community. The com-
munity
is, therefore, entitled to know whether or not this requirement of
the statute is being satisfied in the functioning of the
LIC. The respondent's H
1060 • SUPREMECOURTREPORTS [1995) 1 S.C.R.
A efforts in preparing the study paper was to bring to the notice of the
community that the LIC had strayed from its path by pointing out that its
premium rates were unduly high when they could be low if the LIC avoided
the wasteful indulgences. The endeavour
was to enlighten the community
of the drawbacks and shortcoming of the LIC and to pin-point the area
where improvement
was needed and was possible. By denying to the
B policy-holders, the information contained in the rejoinder prepared by the
respondent, the LIC cannot be said to
be acting in the best interest of the
community. There
was nothing offensive in the rejoinder which fell within
the restriction clauses of Article 19(2). Nor
was it prejudicial to the
members of the community or based on imaginary or concocted material.
C
On the basis of the fairness doctrine the LIC was under an obligation to
publish the rejoinder. The respondent's fundamental right to speech and
expression clearly entitled him to insist that
his views on the subject should
reach those. who read the magazine so that they have complete picture
before them instead of a one-side or distorted picture. The Court also
D pointed out that the attitude of the LIC in refusing to publish the rejoinder
in their magazine financed from public funds, can be described as both
unfair and unreasonable -unfair
becal,lSe fairness demanded that both
view-points were placed before the readers and unreasonable because
there was no justification for refusing publication. The monopolistic State
instrumentality which survives on public funds cannot act in an arbitrary
E manner on the specious plea that the magazine is an in-house one and it
is a matter of its exclusive privilege to print or refuse to print the rejoinder.
• By refusing to print and publish the rejoind~r, the LIC had violated
respondent's fundamental right. The Court must be careful to see that it
does not even unwittingly aid the effort· to defeat the parties' right. Every
F free citizen has an undoubted right to lay what sentiments he pleases
before the public. Freedom to air one's
views is the lifeline of any
democratic institution and any attempt to stifle, suffocate or gag
this right
would sound a death-knell to democracy and would help usher in autocracy
or dictatorship. This Court has
always placed a broad interpretation on
the value and content of Article
19 (1) (a), making it subject only to the
G restrictions permissible under Article 19 (2). Efforts by intolerant
authorities to curb or suffocate this
fre~dom have always been firmly
repelled, more so when public authorities have betrayed autocratic tenden
cies. The Court then went on to observe :
H
" ....... The words 'freedom of speech and expression must be
~;-·
.. J7-
.
--
MIN. OF INFORMATION ~D BROADCASTING v. CRICKET ASSN. OF BENGAL [SA WANT, J.] 1061
broadly construed to include the freedom to circulate one's views A
by words of mouth or in writing or through audio-visual instrumen
talities. It, therefore, includes the right to propagate one's views
through the print media i.e., periodicals, magazines or journals or
through any other communication channel e.g. the radio and the
television. The right extends
to the citizen being permitted to use B
the media to answer the criticism levelled against the view
propagated by
him. The print media, the radio and the tiny screen
play the role
of public educators, so vital to growth of a healthy
democracy. These communication channels are great purveyors
of
news and views and make considerable impact on the minds of the
readers and viewers and are known
to mould public opinion on C
vital issues of national importance. Modern communication
mediums advance public interest by informing the public
of the
events and developments that have taken place and thereby educat-
ing the voters, a role considered significant for the vibrant function-
ing of a democracy. Therefore, in any set-up, more so in a
D
democratic set-up like ours, dissemination of news and views for
popular consumption
is a must and any attempt to deny the same
must
be frowned upon unless it falls within the mischief of Article
19 (2). This freedom must, however, be exercised with circumspec-
tion and care must be taken not
to trench on the rights of other
citizens
or to the jeopardise public interest. E
A constitutional provision is never static, it is ever-evolving and
ever-changing and, therefore, does not admit of a narrow, pedantic
or syllogistic approach. The Constitution-makers employed broad
phraseology while drafting the fundamental rights so that they may F
be able to cater to the needs of a changing society. Therefore,
constitutional provisions must receive a
broad interpretation and
the scope and ambit of such provisions, in particular the fundamen-
tal rights, should not
be cut
down· by too astute or too restricted
an approach, unless the context otherwise requires.
The facts in the other case which W?S disposed of simultaneously by
the same judgment were that the Doordarshan refused
to telecast a
documentary film on the Bhopal Gas Disaster titled 'Beyond Genocide'
produced by the respondent-Cinemart Foundation on the grounds that (i)
G
the film was outdated, (ii) it had lost its relevance, (iii) it lacked moderation H
1062 SUPREME COURT REPORTS [1995] 1 S.C.R.
A and restraint, (iv) it was not fair and balanced, (v) political parties were
raising various issues concerning the tragedy, (vi) claims for compensation
·by the victims were sub judice, (vii) the film was likely to create commotion
in the already charged atmosphere and (viii) the
film criticised the action
of the
State Government and it was not permissible under the guidelines.
The respondent filed a writ petition in the High Court on the ground
of
B violation of his fundamental right under Article 19 (l)(a) and for a man
damus to the Doordarshan to telecast the film. The High Court held that
the respondent's right under Article 19(1)(a) obliged the Doordarshan to
telecast the
film and directed the Doordarshan to telecast the film at a time
and date
oonvenient to it keeping in view the public interest, and on such
C terms and conditions as it would like to impose in accordance with the law.
In the appeal against the said decision filed in this Court, the Court held
that once it
has recognised that the film maker has the fundamental right
under Article 19(1)(a) to exhibit the
film, the
onu5 lies on the party which
claimS that it was entitled to refuse enforcement of this right by virtue of
D law made under Article 19(2) to show that the film did not conform to
requirements of that
law. Doordarshan being a State-controlled agency
funded by public funds could not have denied access to screen except
on
valid grounds. The freedom conferred
on a citizen by Article 19 (l)(a)
includes the freedom to communicate one's ideas or thoughts through a
E newspaper, a magazine or a movie. Traditionally, prior restraints, regard
less
of their form, are frowned upon as threats to freedom of expression
since they contain within themselves forces
which if released have the
potential
of imposing arbitrary and
at times direct conflict with the right
of another citizen. Censorship by prior restraint, therefore, seems justified
for the protection of the society from the ill-effects that a motion picture
F may produce if unrestricted exhibition is allowed. Censorship is thus per
mitted to protect social interests enumerated in Article 19(2) and Section
5-B of the Cinematograph Act. For this reason, need for prior restraint. has
been recognised and our laws have assigned a specific role to the censors,
as
~uch is the need in a rapidly changing societal structure. But since
G permissible restrictions, albeit reasonable, are all the same restrictions, they
are bound to
be viewed as anathema, in that, they are in the nature of curbs or limitations on the exercise of the right and· are, therefore, bound to be
viewed with suspicion, thereby throwing a heavy burden on the authorities
that seek to impose them to show that the restrictions are reasonable and
permissible in
law.
Such censorship must be reasonable and must answer .
H
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MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [SA WANT, J.] 1063 -
the test of Article 14. A .
. 6. In this connection, it will be interesting also to know the content
of the right tQ freedom ·of speech and expression under the First Amend
ment to the American Constitution where the freedom
of press is exclusive-
ly mentioned as a part of the said right unlike in Article 19(1) (a) of our
Constitution. Further, the restrictions on the right
are not spelt out as in B
our Constitution under Article 19 (2). But the
U.S. Supreme Court has
been reading some
of them as implicit in the right. In principle, they make
no difference to the content
of the right to the freedom of speech and
expression under our Constitution.
In National Broadcasting Company v.
United States of America, (319
US 190-238: 87 L.ed 1344), it was held inter alia, that the wisdom of
regulations adopted the Federal Communications Commission is not a
matter for the courts, whose duty is at
an end when they find that the action
c
of the Commission was based upon fmdings supported by evidence, and D
was made pursuant to authority granted by Congress.
In
Joseph Burstyn v. Lewis A. Willson, (343
US 495: 96 L ed 1098) a
licence granted for the exhibition
of a motion picture was rescinded by the
appropriate New
York authorities on the ground that the picture was
"sacrilegious" within the meaning
of the statute requiring the denial of a E
licence if a film was "sacrilegious". The statute
was upheld by the State
courts. The Supreme Court unanimously reversed the decision of the State
Courts. Disapproving a contrary theory expressed in Mutual Film Corp. v.
Industrial Com. of Ohio, [236 US 2230: 59 L.ed 442), six members of the,:
.,,,,.. -,, Supreme Court in an opinion of Clerk, J. held that the basic principles of · F
freedom of speech and press applied to motion pictures, even though their
production, distribution, and exhibition
is a large scale business conducted
for profit. The
Court recognised that motion pictures are not necessarily
subject to the precise rules governing any other particular method
of
expression, but found it not necessary to decide whether a
State may censor
motion pictures under a clearly drawn statute, and limited its decision to
G
the holding that the constitutional guarantee of free speech and press ~ prevents a state from banning a film on the basis of a censor's conclusion
that it is "sacrilegious". Reed,
J. in
a concurrent opinion emphasised that
the question as to whether a state may establish a system for the licensing
of motion pictures was not foreclosed by the court's opinion. Frankfurter, H
1064 SUPREME COURT REPORTS [1995} 1 S.C.R.
A J. with Jackson and Burton, JJ. held that the term "sacrilegious" as used in
the statute was unconstitutionally vague.
In
Red Lion Broadcasting Co.
~tc. et. al. v. Federal Communication
Commission
et. al. and
United States et. al. v. Radio Television News
Directors Association
et. al., [395
US 367: 23 Led. 2d 371} which two cases
B were disposed of by common judgment, the facts wer·e that in the first case,
the Broadcasting-Company carried as a part of "Christian Crusade" series,
a 15-minute broadcast in which a third person's honestly and character
were attacked. His demand for free reply time was refused by the broad
casting station. Federal Communications Commission (FCC) issued a dec-
C laratory order to the effect that the broadcasting station had failed to
meeting its obligation under the FCC's fairness doctrine. The Court upheld
the FCC's directions.
In the second case, the FCC after the commencement of the litigation
in the same case made the personal attack aspect of the fairness doctrine
D more precise and more readily enforceable. The Court upheld the FCC's
rules overruling the view taken by the Court
of Appeals that the rules were
unconstitutional as abridging the freedom of speech and press.
E
F
The Court dealing with the two cases held:
"Just as the Government may limit the use of sound-amplifying
equipment potentially so noisy that it drowns out civilized private
speech, so may the Government limit the of broadcast equipment.
The right of free speech
of a broadcaster, the user of a sound track,
or any other individual does not embrace a right to snuff
out the
free speech
of others.
xxxxxxxxx
.......... Beyond this, however, because the frequencies reserved for
public broadcasting were limited in number, it was essential for
G the government to tell some applicants that they could not broad
cast at all because there was room
for· only a few.
xxxxxxxxx
Where there are substantially more individuals who want to
H broadcast than there are frequencies to allocate, it is idle to posit
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL (SA WANT, J.J 1065
an unabridgeable First Amendment right to broadcast comparable A
to the right of over individual to speak, write, or publish. If 100
persons wa!'t broadcast licences but there are only 10 frequencies
to allocate, all of them may have the same "right" to a license; but
if there is to be any effective communication by radio, only a few
can be licensed and the rest must be barred from the airwaves.
It
would be strange if the First Amendment, aimed at protecting and
furthering communications, prevented the government from
making radio communication possible by requiring licenses to
broadcast and by limiting the number
of licenses so as not to
overcrowd the spectrum.
B
c
This has been the consistent view of the Court. Congress
unquestionably has the power to grant and deny licenses and to
eliminate existing stations
... No one has a First Amendment right
to
a license or to monopolize a radio frequency; to deny a station
license because "the public interest" requires it
"is not a denial of
free speech."
D
By the same token, as far as the First Amendment is concerned
those who are licensed stand no better then those to whom licenses
are refused. A license permits broadcasting, but the licensee has
no Constitutional
right to the one who holds the licensee or to E
monopolize a radio frequency to the exclusion of his fellow citizens.
There is nothing in the First Amendment whieh prevents the
Government from requiring a licensee to share his frequency with
others and to conduct himself as a proxy or fiduciary with obliga
tions to present those
views and voices which are representative
of his community and which would otherwise, by necessity,
be F
barred from the airwaves.
This
is not to say that the First Amendment is irrelevant to
public broadcasting.
On the contrary, it has a major role to play
as the Congress itself recognized, which forbids FCC interference
G
with "the right of free speech by means of radio communication."
Because of the scarcity of ratio frequencies, the Government
is permitted to put restraints on licensees in favour of others whose
views should be expressed on this unique medium. But the people
as a whole retain their interest in free speech by radio and their
H
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1066 SUPREME COURT REPORTS (1995) 1 S.C.R.
'
collective right to have the medium function consistently with the
ends
and purposes of
the First Amendme~L It is the right of the
viewers
and listeners, not the right
-of the broadcasters, which is
paramount. ....
It is the purpose
-of the First Amendment to preserve an
uninln"bited marketplace of ideas in which truth will ultimately
prevail, rather than to countenance monopolization of that market, ·
whether it be by the Government itself or a private licensee ....• It
is the right of the public to receive suitable access to social,
political, esthetic, moral, and other ideas
and experiences which is
crucial here.
That right may not constitutionally be abridged either
by
eon&ress or by the FCC ..•
......... As we have said, the Frrst Amendment confers no right on
licensees to prevent others from broadcasting on 'their' frequen
cies and no right to an unconditional monopoly of a scarce -
resource which the Government has denied others the right to use. -
xxxxxxxxx
Nor can we say that it is inconsistent with the Frrst Amendment
goal
of producing an informed pnblic capable of conducting its
own affairs to require to personal attacks occurring in the course
of
diScussing controversial issues, or to require that the political
opponents
of those endorsed by the station be given a chance to
communicate with
the public.
OtherWise, station owners and a few
networks would have unfettered power to make time available only
to the highest bidders, to communicate only their own views on
public issues, people and candidates, and to permit on the air only
--' those with whom they agreed. There is no sanctuary in the Frrst
Amendment for unlimited private censorship operating in a
-medium not upon to all 'Freedom of the press from governmental
interference
under the
Frrst Amendment does not sanction repres-
-sion of that freedom by private interests. ·
. X .X X X X X X X X
....... · It does not violate the Frrst Amendment to treat licensees
given
the privilege of
Using scarce radio freq~ncies as proxies for
MIN. OP INFORMAT.:ON AND BROAIY'..ASTINGw. CRICKET ASSN. OFBENGALfSAWAHI',J.) 1067 .
' I
the entire community, obligated to give suitable time and attention A
to matters of great public concern. To condition the granting or
renewal of license~ on a \illingness to present repre5ent3tive
community views on controversial issues is consistent with the ends ·
and purposes. of those constitutional provisions forbidding ·the
abridgment of freedom of speech and freedom of the press. Con
gre.. need not stand idly by and permit those with licenses to
ignore the problems which beset the people or to exclude from the
airwayi; anything but their ·own views of fundamental questions ·-····
licenses to broadcast do not confer ownership of designated
B
frequencies, but only the temporary privilege of using them.' C
Referring to the contention that although at one time the lack of
available frequencies for all who wished to .use them justified the
Government's choice of those who would best serve the public interest by
acting as proxy for those who W.Juld present differing views, or by giving D
the latter access directly to broadcast facilities, the said condition no longer
prevailed
to invite continuing
contro~ the Court held :
'ScarCity is not entirely a thing of the past. Advances in tech
nology, such as. micr~wave transmission, have Jed to more efficient
utilisation of the frequency spectrum, but uses for that spectrum. E
have aiso grown apace. Porfuns of the spectrum must be rc:Served
for vital ll3es unconnected with human communication, such as
radiQ-navigational aids.used by aircraft and vessels. Conflicts have
even
emerged between such vital functions as defense prepared
ness and experimentation in methods of averting midair collisions F
through radio warning devices.
"Land mobile services' such as
· police, ambulance, fire department, public utility, and other com
munications systems have
been occupying an
increasingly crowded
portion
of the frequency
specirum and there are, apart from
licensed aniateiir radio operators' equipment, 5,000,000 transmit-
ters
operated on the 'Citizens' band' which is also increasingly G , congested. . Among the various uses for radio frequency space,
including marine, aviatio,',, amateur, military, and collll'llon Carrier
users, there are easily enough claimants to permit use of the whole
with
an even smaller allocation to broadcast radio and television
uses
than now exists.
, H
1068
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SUPREME COURT REPORTS (1995] 1 S.C.R.,
Comparative hearings between competing applicants for broad
cast spectrum space are by no means a thing of the past. The radio
spectrum has become so · congested that at times it has been
necessary to suspend new applications. The very high frequency
television spectrums, in the country's major markets, almost en
tirely occupied, although space reserved for ultra high frequency
television transmission, which is a relatively recent developm~nt as
a commercially viable alternative, has not yet been completely
filled.
The rapidity with which technological advances succeed one
another to create more efficient use
of spectrum space on the one
hand, and to create new uses for that space by ever growing
numbers
of people on the other; makes it unwise to speculate on
the future allocation of that space. It is enough to say that the
resource is one
of considerable and growing importance whose
scarcity impelled its regulation by
an agency authorised by Con
gress. Nothing in this record,
or in our own researches, convinces
us that the resource is no longer one for which there
are more
immediate
and potential uses than can be accommodated, and for
which wise
plannfu.g is essential. This does not mean, of course,
that every possible wavelength must
be occupied at every hour by
some vital use in order to sustain the congressional judgment. The
substantial capital investment required for many
uses, in addition
to the potentiality for confusion and interference inherent in any
scheme for continuous kaleidoscopic reallocation
of all available
space may make this unfeasible.
The
alloeation need not be made
at such a breakneck
pace that the objectives of the allocation are
themselves imperiled.
Even
where there are gaps in spectrum utilization, the fact
remains that existing broadcasters have often attained their present
position because
of their initial government selection in competi
tion with others before new technological advances opened
new
opportunities for further uses. Long experience in broadcasting,
confirmed habits
of listeners and viewers, network affiliation, and
other advantages in program procurement give existing broad
casters a substantial advantage over new entrants, even where new
entry is technologically possible. These
advantages are the fruit ·of ·
I
.--
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [SA WANT, J.] 1069
a preferred position conferred by the Government. Some present A
possibility for new entry by competing stations is not enough, in
itself, to render unconstitutional the Government's effort to assure
that a broadcaster's programming ranges widely enough to serve
the public interest.
In view
of the scarcity of broadcast frequencies, the B
Government's role in allocating those frequencies, and the
legitimate claims of
t,hose unable without governmental assistance
to gain access to those frequencies for expression
of their views,
we hold the regulations and ruling at issue here are both authorized
by statute and constitutional".
C
In Columbia Broadcasting
System etc. etc. v. Democratic National
Committee etc. etc., [412 US 94: 36 L.Ed 2d 772], in separate decisions
rejecting the contentions that the general policy of certain radio and
television broadcast licensees of not selling any editorial advertising time
to individuals or groups wishing to speak out on public issues violated the
D
Federal Communications Act of 1934 and the First Amendment, such
contentions having been asserted in actions instituted by a national
or
ganisation of business opposed to United States involvement in Vietnam
and
by the Democratic National Committee, the
US Court of Appeals for
the District of Columbia Circuit reversed the Commission. However, the
E US Supreme Court reversed the Court of Appeals. Burger, CJ. expressing
the
views of the six members of the Court held :
" .......... (1) the First Amendment issues involved in the case at bar
had to be evaluated within the framework of the statutory and
regulatory scheme that" statutory and regulatory scheme that had
developed over the years, affording great weight to the decisions
of Congress and the experience of the Federal Communications
Commission, and (2) under the Federal Communications Act and
F
the Commission's "fairness doctrine," broadcast licensees had
broad journalistic discretion in the area
of discussion of public G
issues.
It was also held, expressing the
views of the five members of
the court
(Part IV of the opinion); that (3) neither the public
interest standards of the Federal Communications Act nor the
First Amendment, assuming that there
was governmental action
· H
1070
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SUPREME COURT REPORTS (1995) 1 S.C.R.
for First Amendment purposes, required broadcasters to accept
. editorial advertisements, notwithstanding that they accepted Com
mercial advertisement, and (4) the Commission was justified in
concluding that the public interest would not.be served by a system
affording a right of access to broadcasting facilities for paid
editorial advertisements, since such a . system would be heavily
weighted in favour of the financially affluent, would jeopardize
effective operation
of the Commission's "fairness doctrine", and
would increase government involvement in broadcasting by requir
ing the Commission's daily supervision
of broadcaster's activities
......... a broadcaster's refusal to
aceept any editorial advertisements
was not governmental action for purposes of the First Amendment,
since private broadcasters, even though licensed and regulated to
some extent
by the government, were not instrumentalities or
"partners" of the Government for First Amendment purposes, and
since the Commission, in declining. to reject the broadcasters'
policies against accepting editorial advertisements,
had not
fostered or required such policy".
It may be mentioned here that unlike in this country, in
United
States, the private individuals and institutions are given licenses to have ·
their own broadcasting stations and hence the right of the private broad
casters against the right
of others who did not own the broadcasting
E stations but asserted their right of free speech and expression were pitted
against each other in
this case and the decision has mainly turned upon the
said balancing
of rights of both under the First Amendment. It was in
substance held that any
<Urection to the private broadcasters by the
Government to sell advertising time to speak out on public issues violated
F the protection given by the
First Amendment to the private broadcasters
against Government control.
hi Federal Communications Commission et al. v. WNCN Listeners
Guild et
al.,
(450 Us 582: 67 L ed 2d 521), a number of citizen groups
interested in fostering and preserving particular entertainm~nt formats
G petitioned for review of the Policy Statement of Federal Communications
· Comnlission (FCC) in the US Court of Appeals for the District of Colum
bia Circuit. The Court held that the Policy Statement was contrary to the
Communications Act
of 1934. The
US Supreme Court reversed the
decision
of the Court of Appeals by majority, holding, inter alia, that the
H
Policy Statement wa5 not inconsistent with the Communications Act since
-..---..
MIN. OF INFORMATION AND BROADCASTING•· CRICKET ASSN. OF BENGAL [SA WANT, J.J 1071
the FCC provided a rational expla,n,ation for its conclusion that reliance on A
the· market was the best method of promoting diversity in entertainment
formats and that FCC's judgment regarding how the public interest
in best
served
was entitled to substantial judicial deference and its implementation .
of the public interest standard, when based on
-a rational weighing of
competing policies
was not to be set aside. Marshall and Brennan, JJ., B
however, held that in certain limited circumstances, the FCC may be
obliged to hold a hearing to consider whether a proposed change in a
licensee's entertainment programme format
is in the public interest and
that the FCC's
Policy Statement should be vacated since it did not contain
a safety va!ve procedure that allowed the FCC the flexibility to consider
applications for exemptions based on special circumstances and since it C
failed to provide a rational explanation for distinguishing between enter~
tainment and not entertainment programming for purposes of requiring
commission review
of format changes.
In
City of Los Angeles & Department of Water and
Power v. Prefe"ed D
Communication, Inc., 476 US 488: 90 L ed 2d 480, a cable television
company asked a public utility and the city
of Los
~geles's water and
power department for permission to lease space on their utility poles
in
order to provide cable television service to part of the city. The respon
dent-company
was told that it was first obtain franchise from the appellant
City which refused to grant one on grounds that the company had failed
E
to participate in an auction that was
t.o award a single franchise in the area.
The respondent sued claiming violation
of his right under the free speech
clause of the First Amendment It
was alleged in the complaint that there
was sufficient physical
capacitY and the economic demand in the area at
issue to accommodate more than one cable company and that the city's F
auction process allowed it to discriminate among applicants. As against
this, the appellant argued that lack
of space on public utility structures, the
limited economic demand, and the practical and aesthetic disruptive effects
on the public right of
way justified its decision. The
District Court dis
missed the complaint. On appeal, the US Court of Appeals reversed and
remanded for further proceedings. The US Supreme Court affirmed the G
Court of Appeals. Rehnquist, J. expressing the unanimous decision of the
Court
held:
" ... (1) that the cable television company's complaint should not
have been dismissed, since the activities in which it allegedly sought
H
1072
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SUPREME COURT REPORTS [1995} 1 S.C.R.
to engaged plainly implicated First Amendment interests where
they included the communication of messages on a wide variety of .
topics and
in a wide variety of formats, through
origin&! program
ming or
by exercising editorial discretion over which stations or
programs to include
in its repertoire, but (2) that it was not
desirable to express any more detailed
views on the proper resolu
tion
of the First Amendment question without a more thoroughly
developed record of proceedings in which the parties would have
an opportunity to prove those disputed factual assertions upon
which they relied."
C 7. The position of law on the freedom of speech and press has been
D
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explained in (16 Am Jur 2d 343) as under:
"The liberty of the press
was initially a right to publish without a
license that which formerly could
be published only with one, and
although this freedom from previous restraint upon publication
could not
be regarded as exhausting the guarantee of liberty, the
prevention of that restraint was a leading purpose in the adoption
of the First Amendment.
It is well established that liberty of the
press historically considered and taken up
by the Federal Constitu
tion, means principally, although not exclusively, immunity from
previous restraints or censorships. Stated differently, the rule
is
that an essential element of the liberty of the press is its freedom
from all censorships over what shall
be published and exemption
from control, in advance, as to what shall appear in print ...... .
xxxxxxxxx
The freedom of speech and press embraces the right to dis
tribute literature, and necessarily protects
the right to receive
literature which
is distributed. It is said that liberty in· circulating
is as essential to the freedom as liberty of publishing, since publi
cation without circulation would
be of little value.
The right
or privilege of free speech and publication, guaran
teed by the Constitutions of the
United States and of the several
states, has its limitation and is not an absolute right, although
limitations are recognised only in exceptional cases.
(
..
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL (SA WANT, J.) 1073
xxxxxxxxx A
The question of when the right of free speech or press becomes
wrong
by excess is difficult to determine.
Legitim~te attempts to
protect the public, not from the remote possibie effects of noxious
ideologies, but from present excesses of direct, active conduct are
not presumptively bad because they interfere with and in some of
B
their manifestations restrain the exercise of the First Amendment
rights. The issue in every case
is whether the words used are used
in such circumstances and are of such a nature
as to create a clear
and present danger that they
will bring about substantive evils,
which the federal or state legislatures have a right to prevent; it is C
a question of proximity and degree.
xxxxxxxxx
The freedoms of speech and press are not limited to particular
media of expression. Verbal expression
is, of course, protected, D
but the right to express one's views in an orderly fashion .extends
to the communication of ideas by handbills and literature as well
as
by the spoken word.
Picketing carried on in a nonlabor context,
when free from coercion, intimidation, and violence,
is constitu-
tionally guaranteed as a right of free speech."
E
8. In "Civil Liberties & Human Rights" authored by David Feldan, the
justification for and limits of freedom
of expression are stated in the
following words:
The liberty to express one's self freely
is important for a number of F
reasons. Firstly, self expression is significant instrument of freedom of
conscience and self-fulfilment.
Second justification concerns epistemology.
Freedom of expression enables people to contribute to debates about social
and moral values. The best
way to find the best or truest theory or model
of anything
is to permit the widest possible range of ideas to circulate. G
Thirdly, the freedom of expression allows political discourse which is
necessary in any country which aspires to democracy. And lastly, it
facilitates artistic scholarly endeavours of all sorts.
The obvious connection between press freedom and freedom
of
speech is that the press is a medium for broadcasting information and H
1074 SUPREME COURT REPORTS [1995) 1 S.C.R.
A opinion. Firstly, media freedom as a tool of self-expression is a significant
instrument of personal autonomy. Secondly,
as a channel of
communica
tion, it helps to allow the political discourse in a democracy. Thirdly, it
helps to provide one of the essential conditions in scholarships making
possible the exchange and evaluation of theories, explanations and dis-
B .coveries, and lastly, it help to promulgate a society's cultural values and
facilitates the debate about them, advancing the development and survival
of civilisation.
Referring to the reasons for regulating the broadcasting media, the
learned author has stated that, first, the Government realises the potential
C of channels of mass communication for contributing to. democracy or
undermining it. They hoped to foster a public service ethos in broadcasting
so that it would be a medium for education and improving the population.
Serondly, in order to do this it was necessary to keep the media of mass
communications from having programme policy dictated entirely
by market
D forces. A strong public sector and regulation of the independent sector when one started to operate, were called for. Thirdly, when comm.ercial
broadcasters appeared on the scene, and a regulatory scheme
was being
developed for them, it
was thought to be important to preserve a diversity
of ideas
by preventing oligopolistic concentrations of power in the hands
E of a few, usually rich and conservative media magnates, and to ensure that
licences were granted only to people who could be expected not to abuse
the privilege. The need to preserve propriety has been a motivating factor
in the regulation of commercial broadcasting
ov~r much of the world.
Fourthly, government hoped to ensure that civilised standards were main
tained, to uphold social values. Fifthly, wave lengths for broadcasting were
F
limited. This purely technical consideration shar~ distinguishes broad-
casting from newspapers, and justifies a higher level of regulation.
In
theory,
if not in practice there is nothing to prevc;nt any number of
newspaJYers being published simultaneously. The only controlling
mechanism needed
is that of market forces. This is not true of broadcast-
G ing.
Some control over the allocation of wavelengths is needed m order to
ensure that there are sufficient for all legitimate broadcasters. Lastly,
another legitimate object of national regulation
is to protect the intellectual
.
property rights of programme makers and broadcasters.· It is permissible
on
this ground for an organisation to prevent people from setting access
H to programmes without paying proper licence fees. One way of preventing
...
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [SA WANT, J.) 1075
1076 SUPREME COURT REPO~TS [1995] 1 S.C.R.
/
A · where an authority must give permission before roads can be dug up for
laying cable. The learned author states that the case
is unconvincing for it
infers that it is right for the Government to regulate broadcasting from the fact that it has opportunity to do this. It would be perfectly possible for
Government to allocate frequencies for cable franchises without
B · programme conditions on the basis of a competitive tender and allow the
resale
by the purchaser. The argument, according to the author, therefore,
does not work. It does not justify broadcasting regulations but almost
explains how it
is feasible. The author, however, does not accept the
objection to this reason for regulation that thereby Government acts im-
C properly by using their licensing power to purchase broadcasters' constitu
tional right to speech. According to the author, this argument
is less
persuasive as it assumes that broadcasters enjoy the same constitutional
rights of free speech
as individuals talking in a bar or leafletting
iµ a high
street. The author then deals with the second reason given for regulation
D of broadcasting, viz., scarcity of frequencies and points out that this argu
ment referred to in
Red Lion Broadcasting case (supra) is less clear than
appears at first sight.
Since it is not clear whether the scarcity of frequen
cies refers to the limited number allocated
by the Government as available
for broadcasting or to the actual numerical shortage of broadcasting sta
tions.
If it is the former, the scarcity is an artificial creation of the
E Government rather than a natural phenomenon
~ince it reserves a number
• of frequencies for the use of the army, police and other public services.
The Government
is then not in a good position to argue for restrictions on
broadcasters' freedom. The author then points out that
as far as the actual
scarcity of broadcasting stations
is concerned, there has been
an increase
F in the last 20 years in the broadcasting stations in the United States while
there are fewer newspapers than there used to be. Similar developments
have occurred in European Countries in the same period, especially, since
the advent of cable and satellite. Further the scarcity argument cannot be
divorced from economic considerations. The shortage of frequencies and
G the high cost of starting, up broadcasting channel explain their dearth in
comparison with the number of newspapers and magazines in
1961. How
ever, it
is now probably as difficult to finance a new newspaper as it is a
private television channel, if not more so. Lastly, the author points out that
the scarcity argument
is much less tenable than it used to be. Cable and
H satellite have significantly increased the number of available or potentially
+-
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [SA WANT, J.] 1077
available channels so that there are more broadcasting outlets than there A
are national or local daily newspapers. Dealing with the third reason
advocated for giving differential treatment to the broadcasting, viz., the
character of the broadcasting media, the author points out that it
is said
B
that television and radio, are more influential on public opinion than the
press, or at least are widely thought to be so. The majority
of the
US
Supreme Court in FCC v. Pacifica Foundation, 438 US 7'1£J said that they
intrude into the home and are more pervasive and are more difficult to
control than the print media. In particular, it
is hard to prevent children
from being exposed to broadcast while it
is relatively easy to stop them
looking at magazines and papers which in any case they
will not be able to
read
·or purchase. These grounds underpin the extension of legal control C
in Britain over violent and sexually explicit programmes through the estab
lishment of Broadcasting Standard Council and the strengthening of the
impartiality rules. In
Third Television Case 57 B Verf GE 295, 322-3 [1981)
the German Constitutional Court dealing with a different version of this
argument has held that regulation
is necessary to guarantee pluralism and D
programme variety, whether or not there is a shortage of frequencies and
other broadcasting outlets. The free market
will not provide for broadcast-
ing the same variety found in the range of press and magazine titles. Hence
programme content should be regulated and the media monopolies should
be cut down by the application of anti-trust laws. Thus both the
US and the
German arguments
lay stress on the power of television and its unique
capacity to influence the public. According to the learned author, the
argu
ments are difficult to assess. Broadcasting does not intrude into the home
unless listeners and viewers want it to be. From the point of view of constitu
tional principles it is not easy to justify imposition of greater limits on the
medium on the ground that it
is more influential than the written words. It
cannot be right to subject more persuasive types of speech to greater
restraints than those imposed on less effective varieties. The author,
how
ever, accepts the view of the majority of the US Supreme Court in Pacifica
case (supra) which regarded broadcasting, particularly television, as a uni
quely pervasive presence in the lives of most people. More time is spent G
watching television than reading. The presooce of sound and picture in any
home makes it an exceptional potent medium. It may also be harder to stop
children having access to 'adult material' on television than to pornographic
magazines. This
may not apply to subscription channels, enjoyment of which
E
F
is dependent on a special decoder. He also agrees that experience in
the H
1078 SUPREME COURT REPORTS (1995] 1 S.C.R.
A United States and more recently in Italy suggests that a free broadcasting
. market does not produce the same :variety as the press and book publishing
markets do. However, the author states that these three justifications for
broadcasting regulation are inconclusive and
it is doubtful whether the case
is powerful enough to justify the radically different legal treatment of the
B press and broadcasting media. A separate question, according to the author,
is whether it is appropriate to continue to treat radio in the same way as
television since there
is generally a large choice of local, if not national radio
programmes and it
is hard to believe that it exercises a dominating influence
on the formation of public attitudes. The same question arises in respect
of
cable television. Although a licence has to be obtained from a
·licensing
C authority, several franchises may be physically accommodated and a wide
band cable system may be able to carry upto 30 or 40 or even more channels.
The scarcity rational, therefore, seems inapplicable to cable, and further it
is hard to believe that this mode of broadcasting exercises such a strong
influence that stringent programme regulation
is justifiable. Dealing with the
D last reason advocated by a leading American scholar, Lee Bollinger in his
article "Freedom of the
Press and Public Access" and his essay "The Rational
of Public Regulation of the Media" and in "Democracy and the Mass Media"
Cambridge (1990] for the divergent treatment of the press and broadcasting
media, the author points out that Bollinger accepts that there
is no fun-
E damental difference in the character of the two mass media, but argues that
broadcasting being still relatively new means of mass communication, it
is
understandable that society has wanted to regulate it just as it has treated
that cinema with more caution than it has the theater. This argument of
Bollinger
is based on the history of the two media. Bollinger's second argu-
F ment is that society is entitled to remedy the deficiencies of an unregulated
press with a regulated broadcasting system which may be preferable
to at
tempting to regulate both sectors. According to Bollinger, regulation poses
the danger of government control, a risk which is reduced
if one branch of
the media
is left free. The author attacks this reason given by Bollinger and
states that it
is an unsatisfactory compromise. If the regulation of the press
G
· is always wrong and perhaps unconstitutional and if there is no significant
difference between the two media, it follows that the latter should also be
wholly unregulated .. The author also points out that Bollinger's argument
attempts to justify the unequal treatment of the liberties of the broadcasters
and newspaper proprietors and editors when in all material respects, their
H position is identical.
+--
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [SA WANT, J.] 1079
The author then refers to the rights of viewers and listeners which is A
referred to in Red Lion Broadcasting case (supra) by White, J. of the US
~
Supreme Court in the following words :
"But the people as a whole retain their interest in free speech by
radio and their collective right to have the medium function con-
B
sistently with the ends and purposes of the First Amendment. It is
the right of viewers and listeners, not the right of the broadcasters,
which
is
paramount."
....
The author concludes by pointing out that the cases from a variety
of jurisdictions show that the broadcasters' programme freedom when c
exercised within the constraints imposed by the regulatory authority, has
priority over the rights claimed
by viewers to see a particular programme
or to retain a particulars series in the schedule.
On the other hand, the
interests of viewers and listeners justify the imposition of programme
standards which would not be countenanced for the press or publishing. It
D
is recognised by the constitutional courts of European countries that
viewers and listeners have interest, and they should
be taken into account
in the interpretation of broadcasting freedom. But the balancing of the
rights
of the broadcasters and viewers is done by regulatory authority.
Courts are understandably reluctant to contemplate the interference with
E administrative discretion which would result from their recognition of
individual rights.
Dealing
.with the right to .access to broadcasting, the author points
out that the theoretical argument in this connection
is that freedom of
speech means freedom to communicate effectively to a mass audience and F
-~
nowadays that entails access to the mass media. The rights to access
provide some compensation for the expropriation by the public monopoly
of the freedom to broadcast. In the absence of a justification for that
monopoly, there would be a right to broadcast in the same
way that
everyone has a right to say or write what he likes in his own home. This
G
would justify the recognition of access to both public and private
char.nels.
The author states that these arguments are unacceptable. Freedom of
speech does not entail any right to communicate effectively in the sense
~ ..... that a citizen can call upon the State or provide him with the most effective
means for the purpose.
He points out that no legal system provides its
citizens with the means and opportunities to address the public in the
way H
1080 SUPREME COURT REPORTS [1995] 1 S.C.R.
A each considers most appropriate. Moreover, to grant everyone a right to
use an access channel, even if available
all the time, would be to give every
adult a worthless right to
use it for a second a year. Limited access rights,
enjoyed only
by important political and social groups may be more
valu
able. But even their recognition would involve sqme interference with the
B editorial freedom of channel controllers and programme schedulers and it
may be more difficult as a consequence to achieve a balanced range of
programmes. Further, a channel might find it hard to create any clear
identity for itself, if it had to devote a substantial amount of time to relaying
the programmes made
by pressure groups. There are also practical
objec
tions to access rights. It may be very difficult to decide, for example, which
C groups are to be given access, and when and how often such programmes
are to be shown. There
is a danger that some grounds will be unduly
privileged. There points weigh particularly heavily against the recognition
of constitutional rights, for courts are not competent to formulate them
with any precision. Dealing with the constitutional rights of access to the
D broadcasting media, the author concludes that individuals and groups do
not have constitutional rights of access to the broadcasting media. Access
rights can only be framed effectively by legislature
or by specialist
ad
ministrative agencies. It does not mean that statutory or other access rights
do not have a constitutional·dimension. The courts may
lay down that
some
provisions should be made for access as a matter of constitutional policy.
E This, however does not mean that there are individual constitutional rights
to accef..:;.
In this connection, the author also. points out that the development
of cable poses new access problems. Operator of the cable may himself
have rights of free speech which would
be infringed by requirement to
F honour access claims. The scarcity and economic arguments which are
employed to justify broadcasting regulation and, therefore, access
provision,
may be less applicable in the context of cable.
11. We may now summarise the law on the freedom of speech and
G expression under Article 19 (1) (a) as restricted by Article 19 (2). The
freedom of speech and expression includes right to acquire information
and to disseminate it. Freedom
of speech and expression is necessary, for
self expression which
is an important means of free conscience and self
fulfilment. It enables people to contribute to debates
of social and moral
issues. It
is the best way to fmd a truest model of anything, since it is only
H
thro"ugh it, that the widest possible range of ideas can circulate. It is the
MIN. OF INFORMATION AND BROADCASTING•. CRICKET ASSN. OF BENGAL [SA WANT. J.] 1081
only vehicle of political discourse so essential to democracy. Equally im
portant
is the role it plays in facilitating artistic and scholarly endeavours
of all sorts. The right to communicate, therefore, includes right to com
municate through any media that
is available whether
pr:int of electronic
or audio-visual such as advertisement, movie, article, speech etc. That is
why freedom of speech and expression includes freedom of the press. The
freedom of the press
in terms includes right to circulate and also to
determine the volume of such circulation. This freedom includes the
freedom to communicate or circulate one's opinion without interference to
as
larg~ a population in country as well as abroad as is possible to reach.
B
This fundamental right can be limited only by reasonable restrictions C
under a law made for the purposes mentioned in Article 19(2) of the
Constitution.
The burden
is on the authority to justify the restrictions.
Public order
is not the samt; thing as public safety and hence no restrictions can be
placed on the right to freedom of speech and expression on the ground D
that public safety is endangered. Unlike in the American Constitution,
limitations on fundamental rights are specifically spell out under Article
19(2)
of our Constitution. Hence no restrictions can be placed on the right
to freedom of speech and expression on grounds other those specified
under Article
19 (2)
..
12. What distinguishes the electronic media like the televii;ion from
the print media or other media
is that has both audio and visual appeal and has a more pervasive presence. It has a greater impact on the minds
of the viewers and is also more readily accessible to all including children
E
at home. Unlike the print media, however, there is a built-in limitation on F
the use of electronic media because the airwaves are a public property and
hence are owned or controlled
by the Government or a central national
authority or they are not available on account of the scarcity, costs and
competition.
13. The next question to be answered in this connection is whether G
there can be a monopoly in broadcasting/telecasting. Broadcasting is a
means of communication and, therefore, a medium
of speech and expres
sion. Hence in a democratic polity, neither any private individual, institu-
tion or organisation nor any Government or Government organisation can
claim exclusive right over it.
Our Constitution also forbids monopoly either . H
1082 SUPREME COURT REPORTS (1995) 1 S.C.R.
A in the print or electronic media. The monopoly permitted by our Constitu
tion
is only in respect of carrying on a trade, business, Industry or service
under Article 19(6) to subserve the interests of the general public. How
ever, the monopoly in broadcasting and telecasting
is often claimed by the
Government to utilise the public resources
in the form of the limited
frequencies available for the benefit of the society at large.
It is justified by
B the Government to prevent the concentration of the frequencies in the
hands
of the rich few who can monopolise the dissemination of views and
information to suit their interests and thus in fact to control and manipulate
public opinion in effect smothering the right to freedom of speech and
expression and freedom of information of others. The claim to monopoly
C made on this ground may, however, lose all 'its raison d'etre if either any
section of the society
is unreasonably denied an access to broadcasting or
the governmental agency claims exclusive right to prepare and relay
programmes. The ground
is further not available when those claiming an
access either do not make a demand on the limited frequencies controlled
D by the Government or claim the frequency which is not utilised and is
available for transmission. The Government sometimes claims monopoly
also on the ground that having regard to
all pervasive presence and impact
of the electronic media, it
may be utilised for purposes not permitted by
law
-and the damage done by private broadcasters may be irreparable.
There
is much to be said in favour of this view and it is for this reason that
E the regulatory provisions including those for granting licences to private
broadcasting where it
is permitted, are enacted.
On the other hand, if the
Government
is vested with an unbridled discretion to grant or refuse to
grant the license or access to the media, the reason for creating monopoly
will lose its validity. For then it is the government which will be enabled to
F effectively suppress the freedom of speech and expression instead of
protecting it and utilising the licensing power strictly for the purposes for
which it
is conferred. It is for this reason that in most of the democratic
countries an independent autonomous broadcasting authority
is created to
control all aspects of the operation of the electronic media.
Such authority
is representative of all sections of the society and is free from control of
G the political and administrative executive of the State.
In this country, unlike in the United States and some European
countries, there has been a monopoly of broadcasting/telecasting in the
Government. The Indian Telegraph Act,
1885 [hereinafter referred to as
H the ''Telegraph
Act" ] creates this monopoly and vests the power of regulat-
t--
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [SA WANT, J.) 1083
ing and licensing broadcasting in the Government. Further, the A
Cinematograph Act, 1952 and the Rules made thereunder empower the
Government to pre-censor
films. However, the power given to the Govern
ment to license and to pre-censor under the respective legislations has to
be read in the context of Article 19(2) of the Constitution which sets
the
parameters of reasonable restrictions which can be placed on the right to B
freedom of speech and. expression. Needless to emphasise that the power
to pre-censor
films and to grant licences for access to telecasting, has to
be exercised in conformity with the provisions of Article 19(2). It is in this ".. context that we have to examine the provisions ef Section 4 (1) of the
Telegraph Act and the action
of the MIB/DD in refusing access to telecast
/ ..
---
the cricket matches in the present case. The relevant Section 4 of the C
Telegraphs Act reads as follows :
"4. (1) Within India the Central Government shall have the ex
clusive privilege of establishing, maintaining and working
telegraphs :
Provided that the Central Government may grant a Licence,
on such conditions and in consideration of such payments as it
thinks
fit, to any person to establish, maintain or work a telegraph
within any part of India :
D
Provided further that the Central Government may, by rules E
made under this Act and
published in the Official Gazette, permit,
subject to such restrictions and conditions as it thinks fit, the
establishment, maintenance and working -
(a) of wireless telegraphs on ships within India territorial waters
F
and on aircraft within or above India or Indian territorial
·waters
and
(b) of telegraphs other than wireless telegraph within any part
of India.
G
(2) The Central Government may, by notification in the
Official
Gazette, delegate to the telegraph authority all or any of its powers
under the first proviso to sub-section (1).
The exercise by the telegraph authority
or any power so
delegated shall be subject to such restrictions and conditions the
H
1084
A
B
c
SUPREME COURT REPORTS [1995] 1 S.C.R.
Central Government may, by the notification, think fit to impose."
· Section 3(1) of the Act defines 'telegraph' as under :
"3. (1) "telegraph" means any appliance, instrument, material
or apparatus used or capable of use for transmission or reception
of signs, signals, writing, images and sounds or intelligence of any
nature by wire, visual or other electromagnetic emissions, Radio
waves Hertzian waves, galvanic, electric or magnetic means.
Explanation.-"Radio waves"
or "Hertzian Waves" means
electromagnetic waves of frequencies lower than
3,000 giga-cycles
per·second propagated in space without artificial guide."
It
is clear from a reading of the provisions of
Sections 4 (1) and 3(1)
together that the Central Government has the exclusive privilege of estab
lishing,_;naintaining and working appliances, instruments, material or ap
D parafus used of-capable of use for transmission or reception of signs,
signals, images and sounds or intelligence of any nature by wire, visual
or -----other electro-magnetic emissions, Radio waves or Hertzian waves, galvanic,
electric or magnetic means. Since in the present case the controversy
centres round the use of airwaves or hertzian
waves [heremafter will be
called as "electro-magnetic waves"], as is made clear by Explanation to
E section 3(1), the Central Government can have monopoly over the use of
the electo-magnetic
waves only of frequencies lower than
3000 giga-cycles
·per second which are propagated in space with or without artificial guide.
In other words,
if the electro-magnetic waves of frequencies of
3000 or
more giga-cycles per second are propagated in space with or ·without
p artificial guide, or if the electro-magnetic waves of frequencies of less than
3000 giga-cycles per second are propagated with an artificial guide, the
Central Government cannot claim an exclusive right to use them or deny
its user by others. Since no arguments were advanced on this subject after
the closure of the arguments and pending the decision,
we had directed
the parties to
give their written submissions on the point. The submissions
G sent by them disclosed a wide conflict which would have necessitated
further oral arguments.
Since we are of the view that the present matter
can be decided without going into the controversy on the subject,
we keep
the point open for decision in an appropriate case. We
will presume that
in the present case the dispute is with regard to the use of electro-magnetic
H waves of frequencies lower than
3000 giga-cycles per second which are
-
..
,.
· MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL (SA WANT, J.] 1085
propagated in space without artificial guide.
The first proviso to Section 4(1) states that the Central Government
may grant licence on such conditions and in consideration of such payment
as it thinks
fit, to any person, to establish, maintain or work a telegraph
within
any part of India. We are not concerned here with the permission
to establish
or maintain a telegraph because in the present case the
permission
is sought only for operating a telegraph and that too for a
limited time and for a limited and specified purpose. The purpose again
is
non-commercial. It is to relay the specific number of cricket matches. It is
only incidentally that the CAB will earn some revenue by selling its right
A
B
to relay the matches organised by it. The CAB is obviously not a business C
or a commercial organisation nor can it be said that it is organising matches
for earning profits as a business proposition. As
will be pointed out later,
it
is a sporting organisation devoted to the cause of cricket and has been
organising cricket matches both of internal and international cricket
teams
for the benefit of the sport, the cricketeers, the sportsmen present and D
prospective and of the viewers of the matches. The restrictions and condi
tions that the Central Government
is authorised to place under s.4(1) while
permitting non-wireless telegraphing can,
as stated earlier, only be those
which are warranted by the purposes mentioned in Article
19 (2) and none
else.
It is not and cannot be the case of the Government that by granting
the permission in question, the sovereignty and integrity
of India, the E
security of the State, friendly relations with foreign State, public order,
decency or morality or either
of them will be in jeopardy or that the
permission
will lead to the contempt of court, defamation or incitement to
an offence.
On the other hand, the arguments advanced are specious and
with· them we will deal a little later.
F
14. It is then necessary to understand the nature of the respondent
organisation, namely, CAB.
It cannot be disputed that the BCCI is a
non-profit making organisation which controls officially organised game of
cricket in India. Similarly, Cricket Association of Bengal (CAB)
is also
non-profit making organisation which controls officially organised game
of G
cricket in the
State of West Bengal. The CAB is one of the Founder
Members of BCCI. Office bearer and Members of the Working Commit-
tees of both BCCI and CAB are all citizens of India. The primary object
of both the organisations, amongst others,
is to promote the game of
cricket, to foster the sprit of sportsmanship and the ideals of Cricket, and
H
1086 SUPREME COURT REPORTS [1995] 1 S.C.R.
A
to impart education through the media of Cricket, and for achieving the
said objects, to organised and stage tournaments and matches either with
:>-
the members of International Cricket Council (ICC) or other organisations.
According to CAB, BCCI
is perhaps the only sports-organisation
in India
which earns foreign exchange and
is neither controlled by any Governmen-
B
tal agency nor receives any financial assistance or grants, of whatsoever
nature.
It cannot be disputed further that to arrange any international cricket
tournament or series, it
is necessary and a condition-precedent, to pay to
~·
the participating member countries or teams, a minimum guaranteed
c amount in foreign exchange and to bear expenses incurred for travelling,
boarding, lodging and other daily expenses for the participating cricketeers
and the concerned accompanying visiting officials. A huge amount of
expenses has also to be incurred for organising the matches. In addition,
both BCCI and CAB annually incur large amount of expenses for giving
D
subsidies and grants to its members to maintain, develop and upgrade the
infrastructure, to coach and train players and umpires, and to pay to them
when the series and matches are played.
t>--,.;
15. Against this background, we may now examine the questions {)f
E
law raised by the parties. The contention of the Ministry of Information
and Broadcasting (MIB)
is that there is a difference between the implica-
tions of the right conferred under Article 19(1) (a) upon (i) the broadcaster
i.e. the person operating the media,
(ii) the person desiring access to the
media to project his views including the organiser of an event,
(iii) the
F
viewer and (iv) a person seeking uplinking of frequencies so as to telecast
.......... "·,
signals generated in India to other countries. The contention of CAB that
denial
of a license to telecast through a media of its choice, based (accord-
ing to MIB) upon the commercial interests, infringes viewers' right under
Article 19(1) (a)
is untenable. It is further contended that the commercial
interests of the organizer are not protected
by Article 19 (l)(a). However,
G the contention of the CAB results indirectly in such protection being
sought by resort to the following steps of reasoning : (a) the Board has a
right to commercially exploit the event to the maximum, (b) the viewer has
~,
a right to access to the event through the television. Hence the Board has
-the right to telecast t)irough an appropriate channel and also the right to
H
insist that a private agency, including a foreign agency, should be allowed
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [SA WANT, J.) 1087
all the sanctions and permissions as may be necessary therefor. A
According to MIB the aforesaid contention is untenable because
even
if it is
assumed that entertainment is a part of free speech, the analogy
of the right of the press under article 19(1) (a) vis-a-vis the right under
Article 19(1)(g), cannot be extended to the right of sports associations. The
basic premise underlying the recognition of the rights of the press under
Article 19(1)(a) i5: that the economic strength is vitally necessary to ensure
independence of the press, and the even the 'business' elements of a
newspaper have to some extent a 'free speech' protection.
In other words
the commercial element of the press exists to subserve the basic object of
B
the press, namely, free dissemination of news and views which enjoys the C
protection of free speech. However, free speech element in telecast of
sports
is incidental. According to the MIB, the primary object
o( the
telecast by the CAB
is to raise funds and hence the activities are essentially
of trade. The fact that the profits are deployed for promotion of sports
is
immaterial for the purpose.
It is further urged that a broadcaster does not have a right as such
to access to the airwaves without a license either for the purposes of
telecast
or for the purposes of uplinking. Secondly, there is no general right
to a license to use airwaves which being a scarce
resourcf<, have to be used
D
in a manner that the interests of the largest number are best served. The E
paramount interest is that of the vie..yers. The grant of a license does not
confer any special right inasmuch as the refusal of a license does not result
in the denial of a right to free speech. Lastly, the nature of the electronic
media
is
such· that it necessarily involves the marshalling of the resources
for the largest public good. The state monopoly created as a device to use
the resource
is not per se violative of the right to free speech as long as the F
paramount interests of the viewers are subserved and access to the media
is governed by the fairness doctrine. According to the MIB, the width of
the rights under Article 19(1)(a) has never been considered to be wider
than that conferred
by the First Amendment to the
U.S. Constitution. It is
also urged that the licensing of frequencies and consequent regulation of G
telecast/broadcast would not be a matter covered by Article 19(2). The
right to telecast/broadcast has certain inherent limitations imposed by
nature, whereas Article 19(2) applies to restrictions imposed by the State.
The object of licensing
is not to cast restrictions on the expression of ideas,
but to regulate and marshall scarce resources to ensure their optimum
enjoyment by all including those who are not affluent enough to dominate
H
1088 SUPREME COURT REPORTS [1995) 1 S.C.R.
A the media.
It is next urged that the rights of an organiser to use airwaves as a
medium to telecast and thereby propagate
his views, are distinct from his
right to commercially exploit the event. Although it is conceded that an
organiser cannot be denied access on impermissible grounds, it
is urged
B that he cannot further claim a right to use an agency of
his choice as a part
of his right of free speech. In any event no person can claim to exercise
his
right under Article 19 (1) (a) in a manner which makes it
a device for a
non-citizen to assert rights which are denied by the Constitution. According
to MIB, it
is the case of the BCCI that to promote its commercial interest,
C it is entitled to demand that the Government grants all the necessary
licenses and permissions to any foreign agency
of its choice and a refusal
to do so would violate Article
19 (l)(a). According to MIB, this is an
indirect method to seek protection of Article 19(1) (a) to the non-citizens.
D It is then contended that a free-speech right of a viewer has been
recognised as that having a paramount importance by the
US Supreme
Court and this view is all the more significant in a country like ours. While
accepting that the electronic media
is undoubtedly the most powerful
media
of communication both from the perspective of its
reach as well as
its impact, transcending
all barriers including that of illiteracy, it is con-
E tended that it is very cost-intensive.
Unless, therefore, the rights of the
viewers are given primacy,
it will in practice result in the affluent having
the sole right to air their
views completely eroding the right of the viewers.
The right
of viewer can only be safeguarded by the regulatory agency by
controlling the frequencies of broadcast as it
is otherwise impossible for
F viewers to exercise their right to free speech qua the electronic media in
any meaningful
way.
Lastly, dealing with the contention raised on behalf of the CAB and
BCCI that the monopoly conferred upon
DD is violative of Article 19(1)
(a), while objecting to the contention on the ground that the issue does not
G arise in the present proceedings and is not raised in the pleadings, it is
submitted on behalf of MIB that the principal contentions of the
CAB/BCCI are that they are entitled to market their right to telecast event
at the highest possible value it may command and
if the DD is unwilling
to pay as much as the highest bidder, the CAB/BCCI has the right not only
H to market the event but to demand as of right, all the necessary licences
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [SA WANT, J.) 1089
and permissions for the agency including foreign agency which has pur- A
chased its rights. According to MIB these contentions do not raise any
~ free-speech issues, but impinge purely on the right to trade. As far as
Article 19(1)(g) concerned, the validity or the monopoly in favour of the
Government is beyond question. Secondly, in the present case, the DD did
not refuse
to telecast the event per se. It is then submitted that the
B
CAB/BCCI are not telecasters. They are only organisers of the events
sought
to be telecast and when the agency like DD which has access to the
largest number of viewers agrees to telecast the events, their right as well
as the viewers' right under Article 19(1) (a) is satisfied. No organiser, it is
.. ~
contended, can insist that his event be telecast on terms dictated by him
and refusal to agree to his term constitutes, breach of his right under c
Article 19(1)(a). If it is accepted that the Government has not only the
right but the duty to regulate the distribution of frequencies, then the only
way it can be done is by creating a monopoly. A mere
creation· of the
monopoly-agency to telecast does not
per se violate Article 19 (1) (a) as
long as the access is not denied to the media either absolutely or by
D
imposition of
term~ which are unreasonable. Article 19(1) (a) proscribes
monopoly
in ideas and as long as this is not done, the mere fact that the ,,
l
access to the media is through the Government-controlled agency, is not
per se violative of Article 19 (l)(a). It is further urged that no material has
been placed before the Court to show that the functioning of the DD
is
such as to deny generally, an access to the media and the control exercised E
by the Government is in substance over the content on the grounds other
than those specified
in Article 19(2) or a general permission to all who
seek frequencies to telecast, would better subserve the principle underlying
Article
19(1) (a) in the socio-economic scenario of this country and will
not result in passing the control of the media from the Government to
·p
private agencies affluent enough to buy access.
16. As against these contentions of the MIB, it is urged on behalf of
CAB and BCCI
as follows :
The right to organise a sports event inheres in the entity to
G
which the right belongs and that entity in. this case is the BCCI
and its members which include the CAB. The right to produce
-.....+
event µicludes the right to deal with such event in all manner and
mode which the entity chooses. This includes the right to telecast
or not to telecast the event, and
by or through whom, and on what . H
1090 SUPREME COURT REPORTS [1995) 1 S.C.R.
A terms and conditions, No other entity, not even a department of
the Government can coerce or influence this decision or. obstruct
the same except on reasonable grounds mentioned under Article
19(2)
of the Constitution. In the event the entity chooses to televise
its own events,
the terms and conditions for televising such events
B
c
D
are to be negotiated by it with any party with whom it wishes to
negotiate. There is no law, bye-law, rule or regulation to regulate
the conduct
of the BCCI or CAB in this behalf. In the event, BCCI
chooses to
enter into an agreement with an agency having neces
sary expertise
and infrastructure to produce signals, and transmit
and televise the event to the quality that BCCl/CAB desires, the
terms and conditions to be negotiated with such an entity, are the
exclusive privilege of BCCl/CAB. No department of the Govern-
ment and least
of all, the MIB or DD is concerned with the same
and can deny the BCCI or CAB same, the benefit of such right or
claim, much less, can the MIB or DD can insist that such negotia-
tion
and finalisation only be done with it or not otherwise.
In the event the BCCI or CAB wishes to have the event televised
outside India, what is
required is that the required cameras and equip
ments in the field
send signals to the earth station which in turn transmits
the same to the
appointed satellite. From the satellite, the picture is
E beamed back which can be viewed live by any person who has a TV set
and has appropriate access to receive footprints within. the beaming zone.
In such case
DD or the Ministry of Communications is not to provide any
assistance either in the form
of equipments or personnel or for that matter,
in granting uplinking facility for televising the event.
F It is further that the right to disseminate information is a part of the
fundamental right to freedom of expression. BCCI/CAB have the fun
damental right to televise the game
of cricket organised and conducted by
them for the benefit of public at large and in particular citizens of India
who are either interested in cricket or desire to be educated and/or
G entertained. The said right is subject only to the regulations and restrictions
as provide by Article 19(2)
of the Constitution.
At no other stage either the DD or MIB stated that reasonable
restrictions as
enumerated in Article 19(2) are being sought to be imposed
apart from the fact that such plea could not have been taken by them in
H the case of
telecasting sports events like cricket matches. It is urged that
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [SAWANT,J.] 1091
the sole ground on which DD/MIB is seeking to obstruct and/or refuse the A
said fundamental right is that the DD· has the exclusive privilege and
monopoly to broadcast such an event and that unless the event
is produced,
transmitted and telecast either
by DD itself or in coilaboration with it on
its
own terms and conditions and after taking signal from it on the terms
and conditions it may impose, the event cannot be permitted to be
produced, transmitted and telecast at
all by anybody else. B
It is also urged that there is no exclusive privilege or monopoly in
relation to production, transmission or telecasting and such an exclusivity
or monopoly, if claimed, is violative of Article 19(1) (a).
The BCCI and CAB have a right under Article
19 (1) (a) to produce, C
transmit, telecast and broadcast their event directly or through its agent.
The right to circulate information
is a part of the right guaranteed under
Article 19(1)(a). Even otherwise, the viewers and persons interested in
sports
by way of education, information, record and entertainment have a
right to such information, knowledge and entertainment. The content of
D
the right under Article 19 (1) (a) reaches out to protect the information of
the viewers also. In the present case, there is a right of the viewers and
also the right of the producer to telecast the event and in
view of these two
rights, there
is an obligation on the part of the Department of Telecom
munication to allow the telecasting
of the event.
It is then contended that the grant of a licence under section 4 of the
E
Act is a regulatory measure and does not entitle MIB either to deny a
license to BCCl/CAB for the purposes of production, transmission and
telecasting sports events
or to impose any condition unrelated to
Arti~le
19(2). If such denial or imposition is made, it would amount to a proluoi
tion. Hence the MIB is obliged and duty-bound in law to grant licence F
against payment of fees related to and calculated on the basis of user of
time only, as has been standardized and not otherwise. Any other method
applied
by MIB/DD would be violative of Article 19 (l)(a). The grant of
license under section 4 of the Act has thus to be
harmohiously read with
the right of the citizen under Article
19 (l)(a). The Constitution does not G
visualize any monopoly in Article 19(1) (a). Hence DD cannot claim the
same nor can the commercial interest of
DD or claim of exclusivity by it
of generation of signals be a ground for declaring permission under section
4 of the Act. Hence the following restrictions sought to
be imposed fall
outside the ambit of Article 19(2) and are unconstitutional. The restrictions
are:
H
1092 SUPREME COURT REPORTS [1995] 1 S.C.R.
A (a) That unless BCCI or CAB televises the matches in collabora
tion with DD, a license shall not be granted. ·
(b) The DD alone will be the host broadcaster of the signals and.
BCCl/CAB .or its agency must take the signal from
DD alone and
B (c)
Unless the BCCI or CAB accepts the terms and conditions
imposed
by DD, the production of signal and transmission and
telecast thereof shall not be permitted.
It is further contended that there is no monopoly in relation to what
viewer must today view and the American decision relied upon on behalf
C of MIB have no bearing on the present state of affairs, Satellite can beam
directly on to television sales through dish antenna, all programmes whose
·footprints are receivable in the country. Further, any one can record a
programme in
India and then telecast it by sending the cassette
out as is
being done in the case of several private TV channels. Various foreign news
D organizations such as the BBC and the CNN record directly Indian events
and then transmit their own signals after a while to be telecast by their
organizations.
Further, the non-availability of channel is of no consequence in
the
present days of technological development. Any person intending to
E
telecast/broadcast an event can do so directly even without routing signal
through the channels of
DD or MIB. What is required to ensure is that
the
·secured channel are not interfered with or overlapped. On account of the
availability of innumerable satellites in the Geo-Stationary Orbit of the
Hemisphere, the signals can directly
be uplinked through
any of the
p available transponders of satellite whose footprint can be received back
through appropriate electronic device.
As a matter of fact, beaming zone
of only 3 satellites parked
3000 Kms. above the surface of the earth can
cover the entire Hemisphere. Moreover, due to technological develop
ments, frequency is becoming thinner
and thinner and as a result,
availability of frequencies has increased enormously and at present there
G are millions of frequencies available. In order to ensure that none of the
footprints
of any satellite overlaps the footprint of other satellite, each and
every satellite is parked at a different degree and angle. Hence, there is
no resorce crunch
or in-built restriction on the availability of electronic
media, as contended by MIB.
In this connection it is also pointed out that
H there is a difference in the right spelt out by Article 19 (1) (a) of our
+---
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL (SA WANT, J.] 1093
Constitution and that spelt out by the First Amendment of the American A
Constitution.
It is also contended that in no other country the right to televise or
broadcast
is in the exclusive domain of any particular body. In this connec
tion, a reference
is mode to various instances in other countries where the
host broadcaster has been other than the domestic network, which instan
ces are not controverted.
It is also urged that there is no policy of the
Government of India
as urged on behalf of the MIB that telecasting of
sporting events would be within the exclusive domain and purview of
DD/MIB who alone would market their rights to other authorities in whole
B
or in part. It is pointed out that the extract from the minutes of the meeting C
of the Committee of Secretaries held on 12th November, 1993 relied upon
by the MIB for the purpose
is not a proof of such policy. The said minutes
are 'executive decision' of a few secretaries of the various departments
of
the Government.
It is also urged that even public interest or interest of general public
cannot be a ground for refusal
or for the imposition of restrictions or for
claiming exclusivity in any manner whatsoever.
Such restriction, if imposed
D
will be violative of Article 19(1)(a). To suggest that power to grant a license,,
shall not be exercised under any circumstances because of the policy of the
Government,
is arbitrary inasmuch as the power conferred is not being E
used for the purpose for which it has been conferred.
It
is then contended that both BCCI and CAB are non-profit making
organizations and their sole object
is to promote the game of cricket in this
country and for that purpose not only proper and adequate infrastructures
p
are required to be erected, build and maintained, but also huge expenses
have to be incurred to improve the game which includes, amongst others,
grant of subsidies and grants tO the Member Associations, upgradation of
infrastructure, training of cricketeers from school level, payments to the
cricketeers, insurance and benevolent funds for the cricketeers, training
of G
umpires, payments of foreign participants, including guarantee money etc.
The quantum of amount to be spent for all these purposes has increased
during the course of time. These expenses are met from the amounts
earned
by the BCCI and CAB since they have no other continuous source
of income. The earnings of BCCI and CAB are basically from arranging
various tournaments, in stadia advertisements and licence fee for permit-
H
1094 SUPREME COURT REPORTS (1995) 1 S.C.R.
A ting telecast and censorship. At least 70 per cent of the income earned
through the advertisements 'and generated by the TV network while ~
telecasting of the matches, is paid to the organizer apart from the minimum
guaranteed money
as is apparent from the various agreements entered by
and
between BCCl/CAB as well as DD with other networks. The DD in
B effect desires to snatch away the right of telecast for its own commercial
interest through advertisement, and at the same time also demand money
from the organizers as and by
way of production fee.
Merely because an organization
may earn profit from an activity
whose character
is predominantly covered under Article 19(1) (a), it would
C not convert the activity into one involving Article 19(1)(g). The test of
predominant character
of the activity has to be applied. It has also to be
ascertained as to who is the person who is utilizing the activity. If a
businessman were to put in an advertisement for simpliciter commercial
activity, it may render the activity, the one covered by Article
19 (1) (g).
D But even newspapers or a film telecast or sports event telecast will be
protected by Article
19 (1) (a) and will not become an activity under
Article 19(1)(a) merely because it earns money from advertisements in the
process. Similarly,
if the cricket match is telecast and profit is earned by
the licensing of telecasting right and receipts from advertisements, it
will
be an essential element for utilization and fulfillment of its object. The said
E object cannot be
achieved without such revenue.
Rebutting the argument that the organisation of sports
is an industry
and, therefore, monopoly under Article 19( 6)
is permissible, it is pointed
' out that even if, in
matters relating to business and profession, the State
F can' create'monopoly'under Article 19 (6), it can still not infringe Article
' 19(1)(a), while the State may monopolise the textile industry, it cannot
prohibit the publication of books and articles on textiles.
. . ~ I .
It is also contended that the exercise of right claimed in the present
case
is by BCCI/CAB and its office bearers who are citizens of India.
G
·Merely because foreign equipment and technical and personnel are used
as Collaborators to exercise".the said right more effectively, it does not
dilute the'·co~tent of Article 'i9 (1) (a) nor does it become an exercise of
riglit'bla'n.oi:J.':.citi.Ze'ns:'fu this connection, it is emphasised that the DD is
~so
7iisiiigWorldtel, a foreign agency. Most of the newspapers in India are
H printed on machines imported from aboard. A newspaper may also have:a.,
H . tinu . · ·~· • "'
r ·.
+--
I
MIN. OF INFORMATION AND BROADCASTING v. CRICKEI' ASSN. OF BENGAL (SAW ANT, J.) 1095
foreigner as its manager. However, that does not take away the right of the A
newspaper under Article 19 (1) (a). They are only instances of technical
collaboration. Apart from its, every citizen has a right to information as the
same cannot be taken
away on grounds urged by the MIB.
17. It will be apparent from the contentions advanced on behalf of
MIB that their main thrust
is that the right claimed by the BCCl/CAB is B
not the right of freedom of speech under Article 19(1)(a), but a commer-
cial right or the right to trade under Article 19(1) (g). The contention
is
based mainly on two grounds viz., there is no free speech element in the
telecast of sports and secondly, the primary object of the BCCI/CAB in
seeking to telecast the cricket matches
is not to educate and entertain the C
viewer but to make money.
It. can hardly be denied that sport
is an expression of self. In an
athletic or individual event, the individual expresses himself through
his
individual feat. In a team event such as cricket, football, hockey etc., there D
is both individual and collective expression. It may be true that what is
protected by Article 19 (1) (a) is an expression of
t~ought and feeling and
not of the physical or intellectual process or skill. It
is also true that a
person desiring to telecast sports events when he
is not himself a
par
ticipant in the game, does not seek to exercise his right of self expression.
However, the right to freedom of spe~ch and expression also includes the E
right to educate, to inform and to entertain and also the right to be
educated, informed and entertained. The former
is the right of the
telecaster and the latter
of the viewers. The right to telecast sporting event
will therefore also
mclude the right to educate and inform the present and
the prospective sportsmen interested in the particular game and also to
F
inform and entertain the lovers of the game. Hence, when a telecaster
desires to telecast a sporting event, it
is incorrect to say that the free speech
element
is absent from his
right. The degree of the element will depend
upon the character of the telecaster who claims the right. An organiser
such as the BCCI or CAB
in the present case which are indisputably
devoted to the promotion
of the game of cricket,
can9ot be placed in the G
same scale as the business organisations whose only intention is to make
as large a profit as can be made
by telecasting the game. Whereas it can
be said that there
is hardly any free speech element in the right to telecast
when it
is asserted by the latter, it will be a warped and cussed view to take
when the former claim the same right, and contend that in claiming the
H
1096 SUPREME COURT REPORTS (1995] 1 S.C.R.
A right to telecast the 'cricket matches organised by them, they are asserting .
the right to make business out of it. The sporting organisations such as
BCCl/CAB which are interested
in promoting the sport or sports are
under
I
an obligation to organise the sports events and can legitimately be accused
of failing in their duty to do
so. The promotion of sports also includes its
B popularization through all legitimate means. For this purpose, they are duty
bound to select the best means and methods to reach the maximum number
of listeners and viewers. Since at present, radio and TV are
the most
efficacious methods, thanks to the technological development, the sports
organisations like BCCl/CAB Will be neglecting their duty in not exploring
the said media and in not employing the best means available to them to
C popularise the game. That while pursuing their objective of popularising
the sports by electing the best available means of doing so, they incidentally
earn some revenue,
will not convert either them into commercial
organisa
tions or the right claimed by them to explore the said means, · into a
commercial right
or interest. It must further be remembered that sporting
·
D organisations such as BCCl/CAB in the present case, have not been
established only to organise the sports events or to broadcast or telecast
them. The organisation of sporting events is only a part of their various
objects, as pointed out earlier and even when they organise the events, they
are primarily to educate the sportsmen, to promote and popularise the
sports and also to inform and entertain the viewers. The organisation
of
E such events involves huge cosfs. Whether surplus is left after defraying all
the expenses, is ploughed back by them in the organisation itself.
It will be
taking a deliberately distorted view of the right claimed by such organisa
tions to telecast the sporting event to call it an assertion of a commercial
right. Yet the MIB has chosen to advance such contention which ean only
,,.P be described as most unfortunate. It is needless to state that we are, in the
circumstances, unable to accept the ill-advised argument.
It does no credit
to the Ministry or to the Government as a whole to denigrate the sporting
organisations such as
· BCCI/CAB by placing them on par with business
organisations sponsoring sporting events for profit and the access claimed
by them to telecasting as assertion
of commercial interest.
G
The second contention of MIB is based upon the propositions laid
down by the
US Supreme Court, viz., there are inherent limitations im
posed . on the right to telecast/broadcast as there is scarcity of resou~ces,
i.e .. of frequencies,· and therefore the need to use them in the interest of
H the largest number. There is also a pervasive presence of electronic media
+-./
1'
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL (SA WANT, J.) 1097
such as TV. It has a greater impact on the minds of the people of all ages A
and strata of the society necessitating the prerequisite of licensing of the
programmes.
It is also contended on that account that the licensing of
frequencies and consequent regulation of telecasting/broadcasting would
not be a matter governed
by Article 19 (2). Where as Article 19(2) applies
-
to restrictions imposed by the State, the inherent limitations on the right B
to telecast/broadcast are imposed by nature.
In the first instance, it must be remembered that
all the decisions of
the
US Supreme Court relied upon in support of this contention, are on
the right of the private broadcasters to establish their
own broadcasting
stations by claiming a share in or access to the airwaves
or frequencies. In C
the United States, there is no Central Government-owned or controlled
broadcasting centre. There
is only a Federal Commission to regulate
broadcasting stations which are
all owned by private broadcasters. Second-
ly, the American Constitution does not explicitly state the restrictions on
the right of freedom of speech and expression as our Constitution does.
D
Hence, the decisions in question have done on more than impliedly reading
such restrictions. The decisions
of the
U.S. Supreme Court, therefore, in
the context of the right claimed by the private broadcasters are irrelevant
for our present purpose. In the present case what
is claimed is a right to
an access to telecasting specific events for a limited duration and during
limited hours of the day. There
is no demand for owning or controlling a E
frequency. Secondly, unlike in the
cases in the US which came for con
sideration before the US Supreme Court, the right to share in the frequen-
cy is not claimed without a license. Thirdly, the right to use a frequency
for a limited duration is not claimed by a business organisation to make
profit and lastly and this
is an important aspect of the present case, to F
which no reply has been given by the MIB, there is no claim to any
frequency owned and controlled by the Government. What
is claimed is
permission to uplink the signal created by the organiser of the events to a
foreign satellite.
There
is no doubt that since the airwaves/frequencies are a public G
property and are also limited, they have to be used in the best interest of
the society and this can be done either by a central authority by establishing
its own broadcasting network or regulating the grant
of licences to other
agencies, including the private agencies. What
is further, the electronic
media
is the most powerful media both because of its audio-visual impact, H
1098 SUPREME COURT REPORTS [1995] 1 S.C.R.
A and its widest reach covering the section of the society whether the print
.media does not reach. The right to use the airwaves and the co.ntent of the
programmes, therefore, needs regulation for balancing it and
as well as to
prevent monopoly of information and
views relayed, which is a potential
danger flowing from the concentration of the right to broadcast/telecast in
B the hands either of a central agency or of few private affluent broadcasters.
That
is why the need to have a central agency representative of all sections
of the
societY free from control both of the Government and the dominant
influential sections of the socif,!ty. This is not disputed. But to contend that
on that account the restrictions to be imposed on the right under Article
19 (l)(a) should be in addition to those permissible under Article 19 (2)
C and dictated by the use of public resources in the best interests of the
society at large,
is to misconceive both the content of the freedom.of speech
and expression and the problems posed
by the element of public property
in, and the alleged scarcity of, the frequencies as well as by the wider reach
of the media. If the right to freedom of speech and expression includes the
D right to disseminate information to as wide a section of the population as
is possible, the access which enable the right to be so exercised is also an
integral part of the said right. The wider range of circulation of information
or its greater impact cannot restrict the content of the right nor can it
justify its denial. The virtues
of the electronic media cannot become its
E enemies. It may warrant a greater regulation over licensing and control and
vigilance on the content
of the programme telecast.. However, this control
can only be exercised within the framework of Article
19 (2) and the
dictates of public interests.
To plead for other grounds is to plead for
unconstitutional measures.
It is further
difficult to appreciate such conten-
F tion on the part of the Government in this country when they have a
complete control over the fre9uencies and the content
of the programme
to
be telecast. They control the sole agency of telecasting. They are also
armed with the provisions
of Article 19(2) and the powers of pre-censor
ship under the Cinematograph Act and Rules. The only limitations on the
said right is, therefore, the limitation of resources and, the need to use
G them for the benefit of all. When, however, there are surplus or unlimited
resources and the public interests so demand or in any case do not prevent
telecasting, the validity of the argument based on limitation
of resources
disappears.
It is true that to own a frequency for the purposes of broad
c:aSting is a costly affair and even when there are surplus or unlimited
H frequencies, only the affluent few will own them and will be in a position
+-.
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [SAWANT,J.] 1()99
to use it to subserve their own interest by manipulating news and views. A
That also poses a danger to the freedom of speech and expression of the
have-nots
by denying them the truthful information on all sides of an issue
which
is so necessary to form a sound
view on any subject. That is why the
doctrine of fairness
which is evolved in the
U.S. in the context of the private
broadcasters licensed to share the limited frequencies
with the central B
agency like the FCC to regulate the
prograinming. But this phenomenon
occurs even
in the case of the print media of all the countries. Hence the
body like the
Press Council of India which is empowered to enforce,
however imperfectly, the right to reply. The print media further enjoys
as
in our country, freedom from pre-censorship unlike the electronic media.
As stated earlier,
we are not concerned in the present case with
lhe
right of the private broadcasters, but only with the limited right for telecast
ing particular cricket matches for particular hours of the day and for a
particular period. It
is not suggested that the said right is objectionable on
c
any of the grounds mentioned in Article 19 (2) or is against the proper use D
of the public resources. The only objection taken against the refusal to
grant the said right
is that of the limited resources. That abjection is
completely misplaced in the present case since the claim is not made on
any of the frequencies owned, controlled and utilised by the DD. The right
claimed
is for uplinking the signal generated by the .BCCl/CAB to a
satellite owned by another agency. The objection, therefore,
is devoid of E
any merit and untenable in law. It< also displays a deliberate obdurate
approach.
The
thifd contention advanced on behalf of the MIB is only an
extended aspect of the first contention.
It is based on the same distorted p
interpretation of the right claimed. It proceeds on the footing that the
BCCl/CAB
is claiming a commercial right to exploit
·the sporting event
when they assert that they have a right to telecast the event through an
agency of their choice.
It is even contended on behalf of the MIB that this
amounts to a device for a non-citizen to assert rights under Article 19(1)
(a) which are not available to
him. G
It is unnecessary to repeat what we have stated while dealing with
the first contention earlier, with regard to the character of BCCI/CAB, the
nature of and the purpose for which the right to access to telecast
is
claimed by them. As pointed out is not possible to hold that what the H
1100 SUPREME COURT REPORTS [1995) 1-S.CR.
A BCCl/CAB are in the present cast claiming is commercial right to exploit
the event unless one takes a perverse
view of the matter.. The extent of
perversity
is apparent from the contention raised by them that to engage a
foreign agency for the purpose
is to make' it
a device for a non-~itizen to
assert
his rights under Article 19(1)(a). It cannot be denied
that the right
I
B to freedom of speech and expression under Article 19(1)(a) includes the
right to disseminate information
by the best possible method through an
agency of one's choice so long
as the engagement of such agency is not in
contravention of Article 19(2) of the Constitution and does not amount to
improper or unwarranted use of the frequencies. Hence the choice of
BCCI/CAB of a foreign agency to telecast the matches, cannot be objected
C to. There is no suggestion in the present case that the engagement of the
foreign agency
by the BCCI/CAB is violative of the provisions of Article
19(2).
On the other hand, the case of MIB, as pointed out earlier, is that
the BCCI/CAB want to engage the foreign agency to maximise its revenue
and hence they are not exercisi£g their right under Article 19(1) (a) but
D their commercial right under Article 19(1) (g). We have pointed out that
argument
is not factually correct and what
'in fact that BCCI/CAB is
asserting is a right under Article 19(1)(a). While asserting the said right,
it
is incidentally going to earn some revenue. In the circumstances, it has
the right to choose the best method to earn the maximum revenue possible.
E In fact, it can be accused of negligence and may be attributed improper
motives, if it fails to explore the most profitable avenue of telecasting the
event, when in any case, in achieving the object of promoting and
popularising the sports, it has to endeavour to telecast the cricket matches.
The record shows that all applications were made and purported to have
F been made to the various agencies on behalf of CAB for the necessary
licences and permissions. All other Ministries and Departments under
stood them
as such and granted the necessary permission and licences.
Hence,
by granting such permission, the Government was not in fact
granting permission to the foreign agency to exercise its right under Article
19(1)(a).
If, further, that was the only objection in granting permission, a
G positive approach on the part of the MIB could have made it clear in the
permission granted that it
was being given to CAB. In fact, when all other
Government Departments had no difficulty in construing the application
to that effect and granting the necessary sanctions/permissions at
th~ir end,
it
is difficult to understand the position taken by the MIB in that behalf.
H
One wishes that such a contention was not advanced.
r
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [SA WANT, J.) 1101
The fourth contention is that, as held by the US Supreme Court, the A
freedom of speech has to be viewed also as a right of the viewers. which
has a paramount importance, and the said
view has significance in a
country like ours. To
safeguard the rights of the viewers in this country, it
is necessary to regulate and restrict the right to access to telecasting. There
cannot be any dispute with this proposition. We have in fact referred to
B
this right of the viewers in another context earlier. True democracy cannot
exist unless all citizens have a right to participate in the affairs
of the polity
of the country. The right to participate in the affairs
of the country is
meaningless unless the citizens are well informed on all sides
of the issues,
in respect
of which they are called upon to express their views. One-sided
information, disinformation, misinformation and non-information all equal-
C
ly create an uninformed citizenry which makes democracy a farce when
medium
of information is monopolised either by a partisan central
authority or by private individuals
or oligarchic organisations.
This is
particularly so in a country like ours where about
65 per cent of the
population
is illiterate and hardly 1-1/2 per cent of the population has an D
access to the print media which is not subject to pre-censorship. When,
therefore, the electronic media is controlled by one central agency or few
private agencies of the rich, there
is a need to have a central agency, as
stated earlier, representing all sections
of the society. Hence to have a
representative central agency to ensure the viewers' right to
be informed E
adequately and truthfully is a part of the right of the viewers under Article
19(1)(a). We are, however, unable to appreciate this contention in the
present context since the viewers' rights are not at all affected by the
BCCl/CAB,
by claiming a right to telecast the cricket matches.
On the
other hand, the facts on record show that their rights would very much
be
trampled if the cricket matches are not telecast through the D.D., which F
has the monopoly of the national telecasting network. Although, there is
no statistical data available (and this is not a deficiency felt only in this
arena), it cannot be denied that a vast section
of the people in this country
is interested in viewing the cricket matches. The game
of cricket is by far
the most popular in all parts of the country. This is evident from over-flow-
G
ing stadia at the venues wherever the matches are played and they are
played all over the country. It will not be an exaggeration to say that at
least one in three persons, if not more, is interested in viewing the cricket
matches. Almost
all
television sets are switched on to view the matches.
Those who do not have a T.V. set
of their own, crowd around T.V. sets of . H
1102 SUPREME COURT REPORTS ( 1995] 1 S.C.R.
A other when the matches are on. This is not to mention the number of
transistors and radios which are on during the match-hours. In the face of
these revealing facts,
it is difficult to understand why the present contention
with regard to the viewers' right
is raised
in. this case when the grant of
access to BCCl/CAB to telecast cricket matches
was in the interest of the
B viewers and would have also contributed to promote their rights as well.
The last argument on behalf of the MIB is that since in the present
case, the
DD has not refused to telecast the event, its monopoly to telecast
cannot be challenged and in fact no such contention
was raised by the
BCCl/CAB.
We are afraid that this will
not, be a proper reading of the
C contentions raised by BCCl/CAB in their pleadings both before the High
Court and this Court. Undisputed facts on record show that the DD
claimed exclusive right to create host broadcasting signal and to telecast it
on the terms and conditions stipulated by it or not at
all. MIB even refused
to grant uplinking facilities when the terrestrial signal was being creating
D by the CAB with their own apparatus, i.e., the apparatus of the agency
which they had engaged and when the use of any of the frequencies owned,
controlled or commanded by DD or the Government,
was not involved.
Since BCCI/CAB were the organisers
of the events, they had every right
to create terrestrial signals of their event and to sell
it to whomsoever
they
thought best so long as such creation of the signal and the sale thereof was
E not violative of any law made under Article 19 (2) and was not an abuse
of the frequencies which are a public property. Neither
DD nor any other
agency could impose their terms for creating signal or for telecasting them
unless
it was sought through their frequencies. When the DD refused to
telecast cricket matches except on their terms, the BCCl/CAB turned to
F another agency, in the present case a foreign agency, for creating the
terrestrial signal and telecasting it through the frequencies belonging to
that agency. When the
DD refused to telecast the matches, the rights of
the viewers to
view the matches were in jeopardy.
Only the viewers in this
country who could receive foreign frequencies on their TV sets, could have
viewed the said matches. Hence it is not correct to say that the DD had
G not refused to telecast the events. To insist on telecasting events only on
one's unreasonable terms and conditions and not otherwise when one has
the monopoly of telecasting,
is nothing but refusal to telecast the same. The
DD could not do it except for reasons of non-availability of frequencies
or for grounds available under Article 19(2) of the Constitution or for
H considerations of public interest involved in the use of the
frequ~ncies as
J
....
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL (SAWAl'<"T, J.] 1103
public property. The fact that the DD was prepared to telecast the events A
only on its terms shows that the frequency was available. Hence, scarcity
of frequencies or public interests cannot be pressed
as grounds for refusing
to telecast.or denying access to BCCl/CAB to telecasting. Nor can the
DD.
plead encroachment on the right of viewers as a ground since the telecast-
ing of events on the terms of the DD cannot alone be said to safeguard the B
right of viewers in such a case and
i~ fact it was not so.
18. Coming to the facts of the present case, which have given rise to
the present proceedings, the version of MIB
is as follows :
On March 15, 1993, the CAB wrote a letter to the Director General C
of Doordarshan that a Six-Nation International Cricket Tournament will
be held in November, 1993 as a part of its Diamond Jubilee Celebrations
and asked
DD to send a detailed offer for any of the two alternatives,
namely, (i) that
DD would create 'Host Broadcaster Signal' and also
undertake
live telecast of all the matches in the tournament or (ii) any other D
party may create the 'Host Broadcaster Signal' and DD would only
pur
chase the rights to telecast in India. CAB in particular emphasised that in
either case, the foreign T.V. rights would be with CAB. The CAB also
asked
DD to indicate the royalty amount that would be paid by the DD.
On March 18, 1993 the Controller of Programmes {Sp~rts), DD, replied
to the letter stating amongst other things that during the meeting and
E
during the telephonic conversation,
fAB's President Dalmia had agreed
to send them in writing the amount that he expected as rights fee payable
to CAB exclusively for India, without the Star TV getting it. On March 19,
1993, CAB informed DD that they would be agreeable to DD creating the
Host Broadcaster Signal and also granting DD exclusive right for India
without the Star TV getting it and the CAB would charge DD US $800,000
{US Dollars eight lakh) for only the same. The CAB, however, made it
clear that they would reserve the right to sell/license the right world wide,
excluding India and Star TV. The CAB also stated that
DD
'!\'Ould be under
an obligation to .provide a picture and commentary subject to payment of
DD's technical fees. On March 31, 1993, DD sent its bid as 'Host
Broadcaster' for a sum of Rs. 1 crore stating
inter alia, that CAB should
grant signals to it exclusively for India without the Star TV getting it. The
F
.G
DD also stated that they would be in a position to create the 'Host
Broadcaster Signal' and offer a
live telecast of all the matches in the
tournament. Thereafter, on May
4, 1993, the DD by a fax message
.H
1104 SUPREME COURT REPORTS [1995) 1.S.C.R.
A reminded the President of CAB about its offer of March 31, 1993. To that
CAB replied on May
12, 1993 that as the Committee of CAB had decided
to sell/allot worldwide TV rights to one party, they would like to know
whether DD would be interested
in the deal and, if so, to send their offer
for worldwide TV rights latest
by May 17, 1993, on the following basis,
B namely, outright purchase of
TV rights and sharing of rights fee. On May
14, 1993 DD by its fax addressed to CAB stated that it was committed to
its earlier bid of Rs.I crore, namely, exclusive TV right in India alone. The
DD also stated that
as there was a speculation that Pakistan may not
participate in the tournament, which may affect viewership and consequent
commercial accruals. DD would have to rethink on the said bid also, in
C such an eventuality and requested CAB to reply to the said letter at the
earliest.
On June 14, 1993, according to the MIB, without obtaining the
required clearances from the Government for telecasting, the CAB entered
D into an agreement with the World Production Establishment (WPE) rep
resenting the interests of TWI (Trans World International), telecasting
all
the matches. The said agreement provided for grant of sole and exclusive
.
right to selVlicence or otherwise exploit throughout the world 'Exhibition
Rights' in the tournament. CAB shall only retain radio rights for the
territory
of India. The CAB under the agreement was to receive not less
E than
US $550,000 as guaranteed sum. If any income from the rights· fee is
received in excess of the guaranteed sum, it was to be retained wholly by
WPE until it
was
eventually split into 70:30 per cent as per the agreement.
If the rights fee/income received was less than guaranteed sum, WPE was
to pay the difference to CAB. The WPE was to pay, where possible,
F television license fee in advance of the start of the tournament.
On June 18, 1993, DD sent a fax to CAB stating therein that from
the press reports,
it had learnt that CAB had entered into an agreement
with TWI for the TV coverage of the tournament, and the DD had decided
not to telecast the matches of the tournament
by paying TWI, and that DD
G was not prepared to enter into any negotiations with TWI to obtain the
television rights for the event.
On June 30, 1993, DD also informed similarly
International Management Group, Hong Kong.
On september 2, 1993, the Department of Youth Affairs and Spor~s,
H Ministry of Human Resources Development, addressed a letter to the CAB
--"'-'
>
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL (SA WANT, J.] 1105
informing it that the Government has no objection to the proposed visit of A
the Cricket Teams of Pakistan, South Africa, Sri Lanka, West Indies and
Zimbabwe, to India
for participation in the tournament. The Department
further stated that no foreign national shall
visit any restricted/protected/
prohibited area of India without permission from the Ministry of Home
Affairs. It
was also clarified that the sanction of foreign exchange was B
subject to the condition that CAB would utilize only the minimum foreign
exchange required
for the purpose and shall deposit foreign exchange
obtained
by it by way of fee, sponsorship, advertisements, broadcasting
rights, etc. through normal banking channels under intimation to the
Reserve Bank of India.
On September 17, 1993 on the application of CAB
made on September
7, 1993,
VSNL advised CAB to approach the respec- C
tive Ministries and the Telecom Commission for approval (a) regarding
import of earth station and transmission equipment and (b) for frequency
clearance from Telecom Commission. The Satellite to be used for the
transmission coverage, was also required to be specified. It was further
stated that CAB should approach VSNL for uplinking signal to INTEL- D
SAT at Washington. The TWI was advised to apply VSNL for necessary
coordination channels, and
DD phone facility covering each location.
On
October 9, 1993, TWI wrote to VSNL seeking frequency clearance from
the Ministry
of Communications. The TWI informed
VSNL that they will
be covering the tournament and that they were formally applying for its
permission to uplink their signal as per the list attached to the letter. They
E
also sought frequency clearance for the walkie-talkie.
On October 13,
1993, the Ministry of Home Affairs informed the CAB that the Ministry
had 'no objection' to the filming of the cricket matches at any
of the places
mentioned in the CAB's letter and that the 'no objection' pertains to the
filming of the matches on the cricket grounds only. The Ministry also gave F
its 'no objection' to the use of walkie-talkie sets in the play grounds during
the matches subject to the permission to be obtained from WPC.
On October 18, 1993, the CAB addressed a letter to DD for telecast
ing matches mentioning its earlier offer of rights for telecasting and pointed
out that the offer of Rs. 10 million made by DD vide its fax message dated G
March 31, 1993 and on the condition the CAB sh,lUld not grant any right
to Star TV was uneconomical, and considering the enormous organization-
al cost, they were looking for a minimum offer of Rs. 20 million. The CAB
also pointed out that the offers received by them from abroad including
from TWI, wer~ much higher than Rs. 20 million and that the payment. H
· 1106 SUPREME COURT REPORTS [1995] 1 S.C.R.
A under the offers would be made in foreign exchange. The CAB also stated
· that they were given to understand that DD was not interested in increasing
their offer and hence they entered into a contract with TWI for telecasting
the matches. However, they were still keen that DD should come forward
to telecast the matches since otherwise people in India would be deprived
of viewing the same. Hence they had made TWI agree to co-production
B with DD and they also prayed the DD for such co-production. The CAB's
letter further stated that during a joint meeting the details were worked
out including the supply
of equipment list by the respective parties, and it
was decided in principle to go for a joint production. The CAB stated that
it
was also agreed that DD would not claim
~xclusive right and CAB would
C be at liberty to sell the rights to Star TV. Thereafter CAB learnt from
newspaper reports that
DD had decided not to telecast the matches. Hence
they had written a letter to
DD dated September 15, 1993 to confirm the
authenticity of such news, but they had not received any reply from DD. It
was pointed that in the meanwhile they had been repeatedly approached
D by
Star TV, Sky TV and other network to telecast matches to the Indian
audience and some of them on an exclusive basis. But they had not taken
a decision on their offers, since they did not want to deprive DD's viewers.
It was further recorded that the CAB had
also learnt recently that DD
would be interested in acquiring the rights of telecast provided it was '
allowed to produce the matches directly, and the matches produced by'
E TWI were made available to it live, without payment of any technical fees.
F
G
H
After recording this, the CAB made fresh set of proposals, the gist of which
was as follows :
1. TWI and Doordarshan would cover 9 (nine) matches each in
the tournament independently, which are as follows:
Trans World International
November
08 South Africa v. Zimbabwe, (Bangalore)
11 India v. S. Africa, (Delhi -Chandigarh)
13 W. Indies v. S. Africa (Bombay, Brabourne)
16 Pakistan v. S. Africa, (Cuttack)
l9 SAfrica v. Sri Lanka (Guwahati)
21 India v. Pakistan, (Chandigarh)
23 First Semi Final (Culcutta)
....
.....
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [SA WANT, J.] 1107
Second Semi Final (Culcutta) A
Final (Culcutta) ·
Doordarshan
November
07 India v. Sri Lanka (Kanpur)
09 W. Indies v. Sri Lanka, (Bombay, Wankhede)
15 Sri Lanka v. Zimbabwe, (Patna)
16 India v. W. Indies (Ahmedabad)
18 India v. Zimbabwe (Indore)
21 W. Indies v. Zimbabwe (Hyderabad)
2. TWI will do the coverage of these matches with their own
equipment, crew and commentators. Similarly Doordarshan
will
also have their own crew,
equipmr.nt and commentators for the
matches produced
by them.
3. Doordarshan will be at liberty to
us~ their own commentators
for matches produced by TWI for telecast in India. Similarly, TWI
may also use their own commentators if they televised matches
produced by Doordarshan in other networks.
B
c
D
E
4. TWI will allow Doordarshan to pick up the Signal and telecast
live within India, free of charges. Similarly, Doordarshan will allow
TWI to have the signal for live/recorded/highlights telecast abroad,
free of charges.
5. Doordarshan will not pay access fees to CAB, but shall
allow 4 F
minutes advertising time per hour (i.e. 28 minutes in 7 hours}. The
CAB will be at liberty to sell such time slot to the advertisers and
the proceeds so received
will belong to CAB.
6. Contract will be entered upon by the CAB
and Doordarshan
directly for the above arrangements. TWI
will give a written un- G
dertaking for the coverage break-up as mentioned in point 1.
7.
Score Card and Graphics shall be arranged by CAB and the
expenses for such production or income derived from sponsorship
shall be on the account of CAB. Both TWI and Doordarshan
will
use such. H
1108 SUPREME COURT REPORTS [1995) 1 S.C.R.
A Score Cards and Graphics as arranged b~ CAB.
The CAB requested DD to communicate their final decision
in the
matter before October
21, 1993.
B
On October 26, 1993, sent a communication to INTELSAT at
Washington seeking information of uplinking timings for TV transmission
asked for by CAB/TWI. On October 27, 1993 the Telecommunications
Department sent a letter to the Central Board of Excise and Customs on
the question of temporarily importing electronic production eqwpment
required for transmission of one-day matches of the tournament and
C conveying 'no objection' of the Ministry of Communications to the
proposal, subject to the
organizers coordinating with WPC (DOT) for
frequency clearance, from the "Standing Advisory Committee on Frequen
' cy Allocation (SACFA)", for TV up-linking from different places and
coordinating with VSNL, Bombay for booking TV transponders.
D
On October 27, 1943, DD informed CAB with reference to its
renewed offer of October 18, 1993 that the terms and conditions of the
offer were not acceptable to it and that they have already intimated to them
that
DD will not take signal from TWI - a foreign organisation. They also
made .it clear that they had not agree to any joint production with TWI.
E
On October 29, 1993, CAB replied to DD that they were surprised at the
outright rejection of the various alternative proposals they had submitted.
They had pointed out that the only reason given for rejection was that
DD
will not take signals from TWI, which was a foreign organization.
Since
they had also suggested production of live matches by DD the question of
F taking signal from TWI did not arise. CAB further stated that purely in
deference to DD's sensitivity about taking signal, from TWI, CAB would
be quite happy to allowed DD to produce its own picture of matches and
DD may like to buy rights and licenses from CAB at a price which
will be
mutually agreed upon, and that these rights would be on non-exclusive
basis on Indian Territory.
On October 30, 1993, DD sent a message to CAB
G stating that DD will not pay access fee. to CAB to telecast the matches.
However, for
DD to telecast the matches live, CAB has to pay technical
charges/production fee at Rs.5 lakh per match. In that case DD.
will have
exclusive rights for the signal generated and the parties interested to take
the signal will have to negotiate directly with the DD. On October 31, 1993
H DD sent a fax message to CAB to the same effect. ·
.,.
A...'
t
)
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [SA WANT, J.] 1109
On November 1, 1993 VSNL deputed its engineers/staff to be at the A
venues where the matches were being played to coordinate with TWI for
TV coverage. On November 2, 1993, TWI paid US $29,640 and (Pounds)
121,400 to VSNL as fees. for INTELSAT charges. On the same day, the
Finance Ministry permitted the equipment of TWI to be imported on
certain conditions
by waiving the customs and additional duties of customs. On November 4, 1993, CAB addressed a letter to DD referring to DD's
fax message of October 31, 1993 asking for certain clarification on the offer
made
by DD. In this letter, CAB stated that since DD had asked for fees
B
for production and telecast of matches, it was presumed that
all revenue
generated from the matches or entire time slot for advertisements, would
belong to CAB and that they shall have the right to charge access fees C
including other charges from parties abroad, and DD would telecast those
matches for which CAB
will pay
ihe charges. The choice of the matches
to be telecast by DD would be determined by CAB. On November 5, 1993,
the DD rejected the terms.
On November 8, 1993, CAB filed a writ petition in the Calcutta High
Court praying, among others, that the respondents should be directed to
provide telecast and broadcast of all the matches and also provide all
arrangements and facilities for telecasting and broadcasting of the matches
D
by the agency appointed by the CAB, viz., TWI. Interim reliefs were also
sought in the said petition. On the same day, the High Court directed the E
learned advocate of the Union of India to obtain instructions in the matter
and in the meanwhile, passed the interim orders making it clear that they
would not prevent
DD from
telecasting any match without affecting the
existing arrangements between CAB and TWI. The writ petition
was
posted for further hearing on November 9,
~993 on which day, the learned F
Single Judge confirmed the interim orders passed on November 8, 1993
and respondents were restrained from interfering with the frequency lines
given to respondents No. 10 (TWI). On 10th November, 1993, VSNL
advised INTELSAT at Washington seeking cancellation of its request for
booking. On November 11, 1993, the learned Judge partly allowed the writ
by directing All India Radio to broadcast matches. On November 12, 1993 G
in the appeal filed by the Union of India against the aforesaid orders of
the Division Bench, the High Court passed interim order to the following
effect:
(a) that CAB would pay
DD a sum of Rs. 5 lakh per match and H
1110 SUPREME COURT REPORTS [1995] 1 S.C.R.
A the revenue collected by DD on account of sponsorship will be
kept
in separate accou.nt.
(b) that DD would be the host
broadca~ter.
(c) that Ministry of Telecommunication would consider the ques-
B tion of issuing a license to TWI under the Telegraphs Act and
decide the same within three
days.
On November 12, 1993, the Film Facilities Officer of the MIB
informed the Customs Department at
New Delhi, Bombay and Calcutta
airports, that
as TWI had not obtained required clearances from the
C Government for the coverage of the tournament, they should not be
permitted to remove exposed
film outside India till it was cleared by the
Government.
On the same day, DD asked the CAB providing various
facilities at each match venue as this tvas pre-requisite for creating host
broadcaster signal in India.
CAB sent a reply on the same day and called . D upon the DD to telecast matches within India pursuant to the High Court's
order. On the same day again the Collector of Customs, Bombay. called
upon
CAB to pay customs duty on the equipment as there was a breach
in the terms of the exemption order.
On the same day, i.e., November 12, again the Committee of
E Secretaries decided that the telecast of all sporting events would be within
the exclusive purview of the DD/MIB. It
was also decided that for the
purpose
of obtaining necessary clearances for telecasting different types of
events for the country, a Single Window service would be followed where
the concerned
Administrative Ministry would be the 'Nodal' Ministry to
F which the application will be submitted and it would thereafter be the
function of the 'Nodal' Minist}y to obtain permissions froin the concerned
"' Ministry/ Agencies.
On 14th November, 1993, the High Court in clarification of its order
of November
12, 1993 directed, among others, as follows :
(a) In case the signal
is required to be generated by TWI separately,
·such necessary permission should be given by DD and/or other competent
authorities.
(b) The differences with regard to the placement of Cameras etc.,
if
H any, between cricket authority and DD should be mutually worked out, and
---
I
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I
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [SA WANT, J.] 1111
if this cannot be done, the dispute should be decided by the Head of the A
Police in the place whether the match was being played.
(c). The equipment of TWI
which had been seized by the
Custo~s
authority should be released upon undertaking that the same would not be
used for any other purpose and
(d) The VSNL should take proper steps for uplinking, and should
not take
any steps to defeat the orders of the Court. The TWI should
comply
with all financial commitments to
VSNL.
On November 15, 1993, the CAB and another filed the present Writ
Petition
No. 836 of 1993.
On November 15, 1993, this Court passed an
order directing the Secretary, Ministry of Communications to hold meeting
on the same day
by
4.30 P.M. and communicate his decision by 7.30 P.M.
The Customs Authorities were directed to release to equipments. On the
same day at night another order
was passed partly staying the orders of
B
c
the Chairman, Telecommunications and
Secretary, Dot. TWI was per-D
mitted to generate its own signals and Customs Authorities were directed
to release the goods forthwith.
.
.t
The DD filed Contempt Petition in the High Court on the same day
against CAB and another for non-compliance with the orders of the High
Court. The DD also filed the present Special Leave Petitions in this Court E
on the same day.
What emerges from the above correspondence is as follows. The
CAB as early as on 15th March, 1993, had offered to the DD two alterna-
tives, viz., either the DD would create host broadcaster signal and under-
take
live telecast of all the matches in the tournament or any other party F
may create the host broadcaster signal and DD would purchase from the
said party the rights to telecast the said signal
in India. The CAB made it
clear that in either case, the foreign TV rights would remain
.it. The CAB
also asked the
DO to indicate the royalty that it will be willing to pay in
either case. To that, on 18th March, 1993, the DD rejoined by asking in G
turn the amount of royalty that the CAB expected if the rights were given
to it exclusively for India without the Star TV getting it. On 19th March,
1993, the CAB informed the DD that they would charge US$8 lakhs for
giving the DD the right to create the host broadcaster signal and also for
granting it exclusive right for India without the Star TV getting it. It was,
however, emphasised that the CAB would reserve the right to sell/license H ·
1112 SUPREME COURT REPORTS (1995] 1 S.C.R.
A the right of broadcasting worldwide excluding India and the Star TV. The
CAB also stated that the DD would be under an obligation to provide a
·\.--
picture and commentary subject to payment of DD's technical fees. On -
31st March, 1993, the DD sent it:; bid as host broadcaster for a sum of Rs.1
crore (i.e., about US $3.33 lakhs at the then exchange rate). Obviously, this
B
was less than 50 per cent of the royalty which was demanded by the CAB.
The CAB
was, therefore, justified in looking for other alternatives and that
is what they did before the DD by a fax message of 4th May, 1993,
reminded the CAB about DD's offer of
Rs.l crore (i.e.,
US $3.33 lakhs).
To that message, the CAB replied on 12th May, 1993 that it had decided
to selVallot worldwide TV rights to only one party and, therefore, they
...._ -
c
would like to know whether the DD would be interested in the said deal
if so, to send their offer for worldwide TV rights, latest by 17th May, 1993.
To this, on 14th May, 1993,
the DD by Fax, replied that it was interested
only in exclusive TV rights for India alone without the Star TV getting it
and that it stood
by its earlier offer of Rs. 1 crore (i.e.,
US$3.33 lakhs).
The DD went further and stated that
as there was a speculation that
D Pakistan might not participate in the tournament which eventuality was
likely to affect viewership and commercial accruals, it
will have to rethink
on that bid also meaning thereby that even the offer of Rs.1 crore may
be
reduced.
E
According to the MIB, the CAB, thereafter, entered into an agree-
ment with World Production Establishment representing the interests
of
TWI for telecasting all the matches without obtaining clearance
from the
Government for telecasting, and granted TWI sole and exclusive right to
sell or otherwise exploit all exhibition rights of the tournament. Under the
agreement with TWI, the CAB was to receive US $ 5.50 lakhs as guaran-
F
teed sum and in addition, if any rights fee income was received in excess
of the guaranteed sum, it was to
be split in the ratio of
70:30 between the ....
. parties, i.e., 70 per cent to the CAB and 30 per cent to TWI. Learning of
this, the DD informed the CAB that it had decided not to telecast the
matches of the tournament
by paying TWI TV rights fee and that it was
G
not prepared to enter into negotiations with TWI for the purpose.
Again on 18th.
October, 1993, CAB addressed a letter to DD for
telecasting the matches mentioning its earlier offer
of rights for telecasting
and pointed out that the offer of Rs. 1 crore made by
DD on the condition
that the CAB should not grant any right to
Star TV was uneconomical.
H CAB also pointed out that considering the enormous organisational costs ·
I
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [SA WANT, J.] 1113
involved, they were looking for a minimum offer of Rs.20 million. In this A
connection, they pointed out that the offers received by them from abroad
including from TWI were much higher than Rs. 20 million and under those
offers, the payment
was
also to be received in foreign.exchange. The CAB
further stated
in that letter that they were given to understand that DD was
not interested in increasing their offer and hence they entered into a
contract with TWI for telecasting the matches.
Yet, they were keen that
DD should telecast the matches since otherwise people in India would be
deprived
of viewing the same. They had, therefore, made the TWI agree
for co-production with DD. They, therefore, requested the
DD to agree to
such co-production. The CAB also stated in the said letter that in fact in
a joint meeting, details of such arrangement were worked out including the
supply of equipment list by the respective parties and it was decided in
principle to go in for joint production. In the meeting, it was further agreed
that
DD would not claim exclusive rights the CAB would be at liberty to
B
c
sell the rights to Star TV. However, since subsequently they had learnt from
newspaper reports that
DD had decided not to telecast the matches, by D
their letter of 15th September, 1993 they had asked DD to confirm the
authenticity of the news items.
The DD, however, had not responded to
the said letter. In the meanwhile, many other networks had repeatedly
approached them for telecasting matches to the Indian audience and some
of them on exclusive basis. But they had still kept the matter pending since
they did not want to deprive the viewers
of the DD of the matches. They E
further added that they had also learnt that DD would be interested in
acquiring rights of telecast provided it was allowed to produce some
matches directly and the matches produced
by TWI are made available to
it
live without payment of any technical fee. The CAB, therefore, in the
circumstances, suggested a fresh set of proposals for DD's consideration
and requested response before 21st October, 1993.
On 27th October, 1993,
F
DD responded to the said ietter in the negative and stated that the offer
made was not acceptable to it and they had already communicated to that
effect earlier, stating that they will not take any signal from TWI.
DD
further denied that they had agreed to any joint production with TWI. The
CAB by its letter of 29th October, 1993 pointed out, in response to this G
letter, that since they had also suggested production of live matches by DD,
question of taking signals from TWI did not arise, and in deference to DD's
sensitivity about taking signals from TWI, CAB would be quite happy to
allowd
DD to produce its own picture of matches and DD may buy rights
and licences from it at a price which will be mutually agreed upon.
H
1114 SUPREME COURT REPORTS [1995] 1 S.C.R.
A Thus, the controversy between the parties was with regard to the
terms for the telecasting of the matches.
It
inust be noted in this connection
1
that the DD had never stated to the CAB that it had no frequency to spare
for telecasting the matches. On the other hand, if the CAB .had accepted
the terms of the DD, DD
was ready to telecast the matches. Therefore, the
argument based on resource crunch
as advanced on behalf of the
B MIB/DD, is meaningless in the present case.
19. All that we have to examine the present
case is whether MIB/DD
had stipulated unreasonable conditions for telecasting the matches.
It is
apparent from the above correspondence
betw~en the parties that from the
C above correspondence between parties that CAB wanted a minimum of
U.S. $8 lakhs, i.e., Rs. 2.40 crores. However, DD insisted that it would be
the host broadcaster and
will have exclusive telecasting rights for India and
for these rights, it will pay only Rs.1 crore. i.e.,
US $3.33 lakhs. It had also
threatened to reduce the said offer of Rs. One crore because Pakistan was
D not likely to participate in the tournament. When it was pointed out by the
CAB that this offer
was uneconomical taking into consideration the enor
mous costs involved and the they were looking for a minimum of Rs. 2
crores and had received higher offers from other parties under which the
payments
will also be made in foreign exchange, DD stuck to its earlier
offer and refused to raise it. In the meanwhile, the CAB received an offer
E of U.S. $5.50 lakhs, i.e., Rs. 1.65 crores from TWI as guaranteed sum plus
a share to the extent of 70 per cent in the rights income fee. The CAB
being the sole organiser of the event had every right to explore the
maximum revenue possible and there
was nothing wrong or improper in
their negotiating with TWI the terms and conditions of the deal. However,
F the only response of DD to these arrangements which were being worked
out between the CAB and TWI
was that it would not telecast the matches
of the tournament by paying TWI the fees for the CAB did not suit its
doors on DD, and by its letter of 18th
October, 1993 informed the DD that
it
was keen that DD should telecast the matches so that people in India
are not deprived of
viewing the matches. They also informed the DD that
G it was with this purpose that they had made TWI agree for co-production
with the DD and had made a fresh set of proposals. However, these
proposals were on materially different terms. To this, the DD replied by
its letters
of 27th
October, 1993 that the terms and conditions of the offer
were not acceptable to it. The CAB
by its letter of 29th
October, 1993 again
H offered the DD that if their only objection was to taking signals from TWI,
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MIN. C>F INFORMATION AND BROADCAS!lNG v. CRICKET ASSN. OF BENGAL [SA WANT, J. J 1115
since they had suggested production of live matches by DD in their fresh A
proposals, there was no question of taking signals from TWi and they
should reconsider the proposals. To this, the only reply
of the DD was that
they
will not pay
.any Access Fee to CAB to telecast the matches and if
DD were to telecast the matches, the CAB will have to pay Techni~
cal/Production Fee at the rate of Rs. 5 Iakhs per match, and in that case
the
DD will have exclusive rights for the signal generated and the parties
interested
will have to take the signals from the DD after negotiating
directly with it.
In other words the DD took the stand that not only it will
not pay any charges to the
CA13 for the rights of telecasting the matches,
but it is CAB which
will have to pay the charges, and that the DD will be
the sole producer
of signals and others will have to buy the signals from it. 20. Thus the correspondence between the parties shows that each of
the parties was trying to score over the other by taking advantage of its
position. The blame for the collapse
of the negotiations has to be shared
B
c
by both. The difference, if any, was only in the degree of unreasonableness. D
If anything, this episode once again emphasises the need to rescue the
electronic media from
th~overnment monopoly and bureaucratic control
and to have an
independen~uthority to manage and control it.
21. Coming now to the
change · the stand of the other Departments
of the Government for granting facilit1 to the agency engaged by the
CAB, the facts make a revealing reading. The actions
of the various
Departments
of the Government, referred to e ier, show firstly, that the
Ministries
of Human Resources
Development,·, Qf Home Affairs, of
Finance, of Communications, and the VSNL had no objection whatsoever
to the arrangements which the CAB had entered into with TWI, the foreign
agency, for covering the cricket matches.
In fact, they granted all the
necessary
permissions and facilities to the CAB!fWI in all respects subject
E
F
to certain conditions with which neither the CAB nor TWI had any quarrel.
Secondly, these various Departments had accepted TWI· as the agency of
CAB for the purposes of the said coverage and they had no objection to G
the TWI covering the matches on the ground that it was a foreign agency.
This was the situation till the writ petition was filed by the CAB in the
Calcutta
High Court on 8th November, 1993. It is necessary to
remem,ber
in this connection that the decision of the DD to intimate CAB that it will
not pay even access fee to the CAB to telecast the tournament and that it
was for the CAB to pay the technical/production fee
of Rs. 5 lakhs per H
1116 SUPREME COURT REPO~TS [1995} l S.C.R.
A match with DD having exclusive right for the signal generate, and others
will have to buy it after negotiating directly with the DD, was taken· on
30th/31st October,
1993. It is in that context that further developments
which
are relevant for our purpose and which took place during the
pendency of the Court proceedings, have to be viewed.
It is only on 12th
B November, 1993 that the Committee of Secretaries came out with the
concept of the nodal ministry.
By itself, the decision to form the nodal
ministry to coordinate the activities of all the concerned ministries and
departments
is unexceptional. But the time of taking the decision and its
background
was not without its significance, However, there is no adequate
material on record to establish a nexus between the MIB/DD and the
C aforesaid actions of the other authorities.
The nexus in question was sought to be established
by the CAB by
pointing out to the letter addressed
by the Deputy
Secretary in MIB with
the approval of the Secretary, of that Ministry to Department of Youth
D Affairs and Sports of the Ministry of Human Resources Development. It
in terms refers to the meeting of the Committee of
Secretaries on llth
November, 1993 and states that according to the so-called "extant policy"
of the Government, as endorsed by the Committee of Secretaries, the
telecasting of sporting events
is within the exclusive purview of DD/MIB.
Accordingly, the MIB opposes the grant of any permission to M/s. WPE
E or its agency TWI or any Indian Company to cover the matches for general
reception in India through uplinking facility except in collaboration with
DD with only the latter being the sole agency entrusted with the task of
generating
TV signal from the venue of the matches. It further states that
the MIB opposes (i) import of
any satellite earth station for the
roverage
F of the series, (ii) the grant of any ad-hoc exemption for the import of
equipment
by WPE or TWI without their first producing the approval of
the competent authority permitting its use within India, in terms of the
provisions of Indian Telegraph Act,
1885 and the Wireless Telegraph Act,
1933 in the absence of which possession of such equipment within India
constitutes an offence, (iii) M/s. WPE or TWI being permitted to under-
G take shooting of the cricket matches at different places and grant of visa
or
RAS to its personnel for visiting India, an (iv) the grant of any permis
sion to
any aircraft leased by M/s. WPE/TWI for landing at any interna
tional or national airport.
H It was urged that the question of the absence of permission/licence
~\
...
(
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MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [SA WANT, J.] 1117
of the requisite authorities under the Indian Telegraph Act and the Wire- A
less Telegraph Act was never raised or made a ground for denial of the
right to the BCCl/CAB to telecast the matches or to uplink the signal
. through TWI till after CAB had approached the Calcutta High Court on
8th November,
1993. It was contended that the MIB woke up suddenly to
the relevant provisions of the statute after the Court proceedings. We are,
however, not satisfied that these events conclusively establish that the other
departments acted at the behest
of the DD/MIB.
B
The circumstances in which the High Court came to pass its interim
order dated 12th November,
1993 may now be noticed. The MIB and DD's
appeal are directed against the said order and writ petition
is filed by the C
CAB for direction to respondent Nos. 1to9, which include, among others,
Union of India.
In the writ petition filed
by the CAB before the High Court on 8th
November,
1993, the learned Single Judge on the same day passed an order D
of interim injunction commanding the respondents to provide all adequate
facilities and cooperation to the petitioner and/or their appointed agency
for free and uninterrupted telecasting and broadcasting of the cricket
matches in question to be played between
10th and 20th November, 1993,
and restrained the respondents from tampering with, removing, seizing or
dealing with any equipment relating to transmission, telecasting or broad-
E
casting of the said matches, belonging to the CAB and their appointed
agency, in any manner whatsoever.
On the next day, i.e, 9th November,
1993 the said interim order was made final. On the 11th November, 1993,
on the application of the CAB complaining that the equipment brought by
their agency,
viz., TWI (respondent No.
10 to the petition) were seized by F
the Bombay Customs authorities under the direction issued by the Ministry
of Communications and the MIB, another order
was passed by the learned
Judge directing all Government authorities including Customs authorities
to act in terms of the interim orders passed earlier on 8th/9th November,
1993. While passing this order in the presence of the learned counsel for
the respondents who pleaded ignorance about the seizure of the equipment
G
by the Customs authorities, the learned Single Judge observed, among
other things, as follows :
"It is submitted by the learned Counsel on behalf of the respon
dent that since, Doordarshan has been denied telecasting of the
H
1118
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS [1995] 1 S,C.R.
tournament by the respondent No. 5, Akashbani has also decided
to stop broadcasting and
in support of his contention has
produci::d
a letter dated 10th of November, 1993 issued by the Station
Director, Calcutta, for Director General, All India Radio to Shri
S.K. Kundu, Ce1;1tral Government's Advocate whereupon it ap
pears that it
was admitted, that All India Radio had planned· to
provide running commentary of the matches of the above tourna
ment organised by the Cricket Association of Bengal, but as
Doordarshan
was denied the facility of nominating the Host
Broadcaster's
Signal and it consequently decided not to cover
those matches, All India Radio also had decided to drop the
coverage of those matches since the principles on which Doordar
shan based its decision,
viz., the protection
of inherent interest of
the National Broadcasters to generate the signal of sports, applied
equally to the All India Radio.
I fail to understand the logic behind the said letter and the
stand taken
by the All India Radio in the matter which appears to
me wholly illogical and ridiculous; Doordarshan might have some
dispute with the ...... regarding the right to be the Host Broad-
casters Signal including financial questions, but the All India
Radio, which itself volunteered to broadcast the matches them
selves, and when,
adiriittedly, no financial transaction is involved
between the All India Radio and the respondent No.
6, denial of
the All
India Radio to broadcast the said matches only on the
ground that since Doordarshan
was denied by the respondent No.
6 to be the Host Broadcaster's Signal, the All India Radio stopped
broadcasting the matches following the same principle, appears to
be absolutely whimsical and capricious.
X.XXXXXXXX
Such denial by the All India Radio certainly is an act done
against the public interest and thus cannot be supported and/or
upheld to deprive the general people of India
of such small
·satisfaction ....... .
xxxxxxxxx
Accordingly, I find the action of the All India Radio in stopping
...
I
-
+
_,,
.-
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [SA WANT, J.] 1119
the broadcasting of aforesaid tournament is wholly illegal, arbitrary A
and ma/a fide ... .' ..
This writ application accordingly succeeds and allowed to the
extent as stated above, and let a writ in the nature of
mandamus
to the extent indicated above. be issued."
The
Union of India preferred an appeal against the said decision and
in the appeal moved an application for staying the operation of the orders
passed
by the learned Single Judge on 8th/9th November, 1993. Dealing
with the said application, the Division Bench in its order dated 12th
B
November, 1993 observed, among other things, as follows: C
"Mr. R.N. Das, learned Counsel appearing for and on behalf
of the Union of India and ·others including the Director General
of Doordarshan, appearing with Mr. B. Bhattacharya and Mr ..
Prodosh Mallick submitted inter a/ia, that the Doordarshan
authority
is very much inclined and keen to telecast the Hero Cup D
matches in which several parties from aboard are participating
including India. But it was pointed out that the difficulties have
been created
by Cricket Association of Bengal in entering into an
agreement with Trans World International
(UK) Inc. World
Production the respondent No. 10 of the writ petition wherein the E
Cricket Association of Bengal has. given exclusive rights to telecast
to that authority.
It was submitted by Mr. Das that under
Section
4 of the Indian Telegraph Act, 1885 the Central Government have
the exclusive privilege of establishing, maintaining and working
telegraph and that it
was further submitted that the expression
telegraph includes telecasts through Doordarshan. It was further
F
provided that proviso to
Section 4 (1) of the said Act provides that
the Central Government
may grant a licence on such conditions
and in consideration of such payments as it thinks fit to any person
to establish, maintain or work a telegraph within
an~ part of India.
Relying upon the provisions it
was submitted that neither the CAB G
nor the TWI respondent No.
10 of the writ application have
obtained any licence for the purpose
of telecasting the matches
direct from India."
The Court then referred to the correspondence between the CAB
and the
DD between 31st March, 1993 and 31st
October, 1993 and the H
. 1120 SUPREME COURT REPORTS [1995] 1 S.C.R .
A letters of no objection issued to the CAB by the Ministry of Communica
tions and the VSNL and to the acceptance by the VSNL of the payments
from TWI
as per the demand of the
VSNL itself for granting facilities of
uplinking the signal and recorded its prima facie finding that the.DD was
agreeable to telecast matches live_ for India on a consideration of Rs. 5 -
B lakhs per match which was accepted under protest and without prejudice
by the CAB and the only dispute was with regard to the revenue to be
earned through advertisements during the period of the matches. The
Court said that it
was not adjudicating on as to what and in what manner
the revenue through advertisements
would be created and distributed
between the parties.
It
left the said points to be decided on merits in the
C appeal pending before it and proceeding to observe as follows :
D
E
F
G
H
" ..... but at present having regard to the interest of millions of Indian
viewers who are anxiously expecting to see such _live telecast, -we
record as Doordarshan is inclined to telecast the matches for the
Indian viewers on receipt of Rs.
5
lakh per match and to enjoy the
exclusive right of signalling within the country being host broad
caster,
we direct the CAB to pay
immediately a sum of Rs. 5 lakhs
per match for this purpose and the collection of revenue on
account of sponsorship or otherwise
in respect of 28 minutes which
is
available for commer:cial purposes be realised by the Doordar
shan on condition that such amount shall be kept in a separate
account-and shall not deal with and dispose of the said amount
until further orders and we make it clear regarding the entitlement
and the manner in which the said sum will be treated would, abide
by the result of the appeal or the writ application. Accordingly, it
is made clear that Doordarshan shall on these conditions start
immediately telecasting the live matches of the Hero Cup for the
subsequent matches from the next match in India. Mr. Das Ld.
Counsel appearing on behalf of the appellant submits that they
were in a position technically or otherwise to telecast immediately.
With regard to the right of TWI to telecast the matches outside
India
is
concerne~, we also record that on time of heariJlg the
counsel appearing on behalf of the appellant showed an order in
three lines that the authority concerned has summarily and without
giving any reason and/or any hearing whatsoever directed to VSNL
not to allow the TWI to transmit or to telecast from India in respect
of the Hero Cup matches but
it was submitted by the learned
-
I
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL (SAW ANT, J.] 1121
'"
Counsel appearing for the appellant that they are very much keen A
to consider the matter in proper perspective in accordance. with
+ laws, having regard to the national impact on this question. It
appears that on the basis of the representation made by VSNL,
.- TWI came into the picture anc subsequently TWI entered into an
'
agreement with the CAB. At this stage, we are not called upon to
B
decide the validity or otherwise of such an agreement entered into
by the parties. As a matter of fact, we are referring this without
prejudice to the rights and contentions of the parties.
It further
appears that the Government of India through the Department
of
Communication stated that the said department had no objection
c
with regard to the permission to the CAB for temporarily import-
ing electronic product equipments required for transmitting one
day matches of the Hero Cup
as a part of Diamond Jubilee
Celebration to be started from November 7 to
27, 1993, the
Ministry has no objection to proposal "subject to the organisers
Co-ordinating with WPC
(DOT) for frequency clearance from the D
Standing Advisory Committee on frequency allocation (SACFA)
for TV uplinking from different places and coordinating with
... VSNL, Bombay for booking of TV transponders etc. It appears
that the said no objection certificate has created a legitimate
expectation, particularly in view of the fact that the money
E
demanded by
VSNL in this behalf was duly paid by TWI and· all
arrangements have been made by TWI for performing the job. As
we find that no formal permission
is required under proviso to
section 4(1) of Indian Telegraph Act
is there is favour of the party,
having regard to the facts
s~ated above and having regard to
F
National and International impact on this question and having
regard to the fact that any decision taken will have the tremendous
impact on the International sports, we direct the appellant No. 5
who
is respondent No. 6 in the writ application. The
Secretary,
Ministry of Telecommunication, Sanchar Bhavan, New Delhi,
G Government of India to consider the facts and circumstances of
the case clearly suggesting that there had already been an implied
grant of permission, shall grant a provisional permission or licence
without prejudice to the rights and contentions of the parties in
~ this appeal and the writ application and subject to the condition
that the respondent No. 6 in the writ application will
be at liberty H
-1122
A
B
c
D
SUPREME COURT REPORTS [1995) 1 S.C.R.
to impose such reasonable terms and conditions consistent· with
the provision to Sectton 4 (1) of the Indian Telegraph Act, having
regard to the peculiar facts and circumstances of the case.
If TWI
comply
with such terms and conditions that may be imposed
without prejudice to their rights and contentions
in the interest of
. sports and subject to the decision in this appeal or the writ
application shall be entitled
to telecast for International viewers
outside India ...... The Secretary, Ministry of Telecommunication, Sanchar Bhavan, New Delhi, Government of India, is directed to
decide this question
as directed by us within three days from to-day
and
all the parties will be entitled to be heard, if necessary. We
must put in on record our anxiety that the matter should be taken
in an spirit of sports not on the spirit of prestige or personal
interest and should approach the problem dispassionately rising
above
all its narrow interest and personal ego...... In order to
comply with this order any order of detention. of the equipments
of TWI should not be given effect
to."
The Court also made it clear that in order to comply with its order,
any order of detention of the equipments of TWI should not be given effect
to. Notwithstanding this order or probably in ignorance of
it, the Collector
of Customs, Bombay wrote to the CAB that it had given an undertaking to
E fulfil all the conditions of the ad hoc order dated 2nd November, 1993
under which exemption was given to it for importing the equipments.
However, it had riot fulfilled the conditions laid down at (i) and
(iii) of
para 2 of the said
ad hoc exemption order and, therefore, it should pay
an
amount of Rs. 3,29,07,711 as customs duty on the equipment imported by
F TWI. They also threatened that if no such duty was paid, the goods would
be confiscated. In
view of the said show cause notice, the CAB moved the
Division Bench and on 14th November,
1993. The lawyer ofTWI also wrote
a letter in the meanwhile on 13th November,
1993 to the Customs
authorities at Bombay stating therein that
as TWI had sent a letter enclos
ing a copy of the order of the Division Bench passed on 12th November,
G 1993 directing them not to give effect to the detention of the equipments
and complaining that in spite of
it they had not released the goods and,
therefore, they had committed a contempt of the Court. This grievance of
CAB and TWI along with the Fmplaint of the DD for not permitting them
to place their cameras at the requisite places, heard by the Division Bench
H on 14th November, 1993 when the match was already being played in
"
I
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL (SA WANT, J.) 1123
Bombay. The Bench observed that the Court was given to under.stand that A
none of the parties was inclined to go higher up against its earlier order
and that what
was required was certain clarification of that order in the
changed circumstances. The learned counsel for the CAB stated that
.they
were not going to oppose the DD placing their cameras but the dispute
had arisen
as to the signalling to be made for the telecast. According to
the learned counsel
for the
Union of the India, there could be only one
signalling from the field and DD should be treated as host broadcaster and
the
TWi should take signal from it. This was opposed by the learned
counsel for the CAB who contended that
DD had been given exclusive
right
as host broadcaster so far as the telecasting of matches in India was
concerned. The telecastmg of matches abroad was to be done by TWI. The
Division Bench held that the DD
will have the exclusive right of signalling
B
c
for the purposes of telecasting within the country, and they were
~o be
treated
as host broadcasters so far as telecasting within India was con
cerned. As far
as TWI is concerned, if it was authorised and permitted in
terms of their earlier order, it would be entitled to telecast outside the
D
Country and to send their signal accordingly. They also stated that in case
the signalling
was required to be made by the TWI separately the necessary
permission should be given by the
DD or other competent authorities. They
resolved the dispute with regard to the placement of cameras
by directing
. that
DD will have first priority and if there was any
disp~te on that account
it would be resolved by the local head of the Police Administration at the
venue concerned. They also directe~ the Customs authorities, Bombay to
release the equipments imported for the purposes of TWI with the condi-
tion that the said equipment
will be used only for transmission of the
matches and' they shall not
deat with or dispose of the said equipments or
remove it outside the country without the permission of the Court. In
particular, they also directed the VSNL to take proper steps for uplinking
and not to ta~e any step to defeat the purpose.
E
F
Against the said order of the Division Bench, the present appeals are
preferred
by the Ministry of Information and Broadcasting and others
whereas the writ petition
is filed by the CAB for restraining the respon- G
dents, (which include, among others,
Union of India (No.1), Secretary,
Ministry of Information
& Broadcasting (No. 2), Director General, Door
darshan (No.3), Secretary, Ministry of Communications (No. 5), Director,
Department of Telecommunications (No.6), and Videsh Sanchar Nigam
Limited (No. 9), from preventing, obstructing and interfering with or
H
1124 SUPREME COURT REPORTS [1995] 1 S.C.R.
A creating any hurdles in the implementation of agreement dated 14.6.1993
between the petitioner-CAB and respondent No.10, i.e., TWI.
The matter
was heard
_by this Court 0n 15th November, 1993. It
appears from the record that although the High Court had directed the
Secretary, Ministry of Communications to decide the question of granting
B licence under section 4(1) of the Telegraph Act within 3 days from 12th
November,
1993 by its order of the same day, the Secretary had fixed the
meeting for consideration of the application only on the 16th November,
1993. That itself was a breach of the High Court Court's order. This Court,
therefore, directed the Secretary to hear the matter at
4.30 p.m. on 15th
C November, 1993 and communicate its decision to TWI or its counsel or to
the CAB or its counsel immediately thereafter but before 7.30 p.m. on the
same day. This Court also directed U1e Customs authorities to release the
equipment forthwith which they had not done in spite of the High Court's
order. The TWI and CAB were, however, restrained from using the said
equipment till the licence
was issued by the Secretary, Department of
D Telecommunication.
Pursuant to the direction given
by this Court, the Secretary by his
order of 15th November,
1993 after referring to the judgment of the High
Court and its implication and after taking into consideration the arguments
E of the respective parties, held as follows :
F
G
H
"In this connection, we have to take into account an important
point brought to our notice
by the Director General Doordarshan.
It is true that
Section 4 of the Indian Telegraph Act of 1885 enables
the government to
give licences to agencies others than Doordar
shan
or the government departments to telecast. In fact, such a
permission had been given in January
1993 when the cricket
matches were telecast by the same TWI. However, subsequently,
I am given to understand that the government policy in the Ministry
of I&B has been that the uplinking directly by private par
ties/foreign agencies from India for the purpose
of broadcasting
should not be permitted.
It is true that
in a cricket match we are not considering security
aspects. But, the point to
be considered is whether uplinking given
in a particular case will have its consequences on other such claims
which
may not be directly linked to sports and which will have
I
I
MIN. OF INFORMA TJl)N AND BROADCASTING v. CRICKET ASSN. OF BENGAL [SA WANT, J.J 1125
serious implications. Within the government, as per Allocation of f ~
Business Rules, it is the Ministry of I&B which has the respon
sibility for formulation and implementation of the policies relating
to broadcasting/telecasting.
As
was made clear earlier, in this case, we are considering two
aspects.
One is the generation of signals and the second is their
communication. The Department of Telecommunication comes in
the picture so far as the communication aspect
is concerned.
B
Taking into account the facts mentioned above, the only reasonable
conclusion. I
reach is that permission may be
gi.ven to TWl for C
telecast overseas through the VSNL, while Doordarshan will be
telecasting within the country. The TWI will have to get the signals
from Doordarshan for uplinking through the VSNL by making
mutual a"angements. So far as VSNL
is concerned, there should be
no difficulty
in transmitting the signals through Intelsat as already
agreed upon. D .
In my view, the above decision takes into account the needs of the
millions of viewers both within the country and abroad who are
keen to watch the game and at the same time ensures that there
is no conflict with the broad government policy in the Ministry of E
I&B which is entrusted with the task of broadcasting. It also takes
into account the overall aspects and the reasonable expectation
created within the TWI by the series
of clearances given by the
different authorities of the Government
of India."
This order which
was passed around
7.30 p.m. was challenged by the F
CAB, and being an urgent matter, was heard by the Court late at night on
the same
day. The Court stayed the order of the Secretary to the extent
that it imposed a condition that the TWI
will have to get the signals from
the
DD for uplinking through the
VSNL by making mutual arrangements.
The Court directed that the TWI can generate its own signal
by focussing G
its cameras only on the ground where the matches were being played, as
directed by the Ministry of Home Affairs and that they will take care not
to focus their cameras anywhere else.
For telecasting the triangular series and the West Indies tour to India
in 1994 season, the same disputes arose between the parties. By their
letter· H
1126 SUPREME COURT REPORTS [1995] 1 S.C.R.
A of 25th August, 1994, the BCCI requested the Director, Sports, of the
Ministry of Human Resources Development, Department of Youth Affairs
and Sports to grant permission to it or TWI/ESPN to telecast the triangular
series and matohes to be played between India and West Indies.
By their
letter of 30th August,
1994 written to the Secretary, Department of Sports,
B the MIB
dpposed the grant of uplinking facilities to any foreign agency.
On 14th September, 1994, Ishan Television India Ltd. [with a tie-up with
ESPN which had contract with BCCI], applied to the VSNL for uplinking
facilities
for telecasting of the said matches. The VSNL thereafter wrote to
the MIB for their "no objection" and the MIB opposed the grant. of
"no
C objection" certificate and objected to
VSNL writing to the MIB directly for
the purpose. The MIB also stated that their
view in the matter was very
clear that satellite uplinking from Indian soil would be within the exclusive
competence of the MIB/DOT
/DOS and the telecast of sporting events
would be the exclusive privilege of DD.
By their letter of 26th September,
1994, the 'nodal' Ministry, i.e., Ministry of Human Resources Development
D (Department of Youth Affairs and
Sports) addressed to all the Ministries
and Departments including the MIB called for the remarks on the letter
of the BCCI addressed to the nodal Ministry. The MIB again wrote to the
Sports Department of the nodal Ministry, opposing grant of Single Window
service to the BCCI. On 3rd October, 1994, the VSNL returned the
E advance which it had received from Ishan TV for uplinking facilities. On
7th October, 1994, this Court passed the following order :
F
G
H
"Pending the final disposal of the matters by this interim order
confined to telecast the International Cricket Matches to be played
in India from October
1994 to December 1994, we direct
respon
dent Nos. 1and6 to 9 in Writ Petition No. 836/93 to grant forthwith
necessary permission/sanctions and uplinking facilities for produc
tion, transmission and telecasting of the said matches.
We also direct respondent Nos.
2, 3 and 4 in writ petition No.
836/93 and all other Government Agencies not to obstruct/restrict
in
any manner whatsoever production, transmission and telecasting
of the said matches for the said period
by the petitioner applicant
only on the ground where
the Cricket Matches would be played
and the signals are generated under the direct supervision of the
VSNL personnel.
I'
I
MIN. OF INFORMATION ANIJ BROADCASI1NG v. CRICKET ASSN. OF BENGAL [SAWANT,J.] 1127
So far as the production, transmission and telecasting of these A
matches in India is concerned, the Doordarshan shall have the
exclusive right in
all respects for the purpose, and the petitioner
applicant shall not prevent Doordarshan from doing
so, and in
particular shall afford all facilities for Doordarshan to do so.
So far as the placement of cameras are concerned both
B
petitioner-applicant as well as
Doord~rshan shall have equal rights.
·This shall be ensured by Shri Sunil Gavaskar in consultation with
such technical experts as he may deem necessary to consult.
He is
requested to do so. As far as the remuneration for Shri Sunil
Gavaskar and the technical expert
is concerned, both Doordarshan C
as well as the petitioner-applicant will share the remuneration
equally which
will be fixed by this Court.
As regards the revenue generated by the advertisement by
Doordarshan
is concerned, Doordarshan will deposit the said
amount in a separate account and preferably in a nationalised
D
Bank. The Doordarshan will have the exclusive right to advertise
ment. All the IAs are disposed of accordingly".
Since certain disputes arose between the parties, on 18th October,
1994 this Court had to pass the following order :
· E
"The BCCI will ensure tl1.at all Cricket Associations and staging
Centres shall extend every facility to the personnel authorised
by
the Doordarshan to
enter into the Cricket Ground for production,
transmission and telecasting of the matches without
any late or
hindrance.
F
The BCCI will also ensure that all Cricket Associations staging
the matches
will make available every facility and render such
assistance as may be necessary and sought by the Doordarshan for
effective telecasting of the matches at the respective grounds and
G
stadia.
The BCCI shall not permit the ESPN to enter into any contract
either with A.T.N. or any. other Agency for telecasting in any
manner all over India, whether through the Satellite
footprmts or
otherwise, Cricket Matches which are being telecast in India by H
1128
A
SUPREME COURT REPORTS [1995]' l S.C.R.
the Doordarshan. If the ESPN has entered into any such contract
either with A.T.N. or
any other Agency, that contract should be
cancelled forthwith.
Since this Court is seized of the present matter, no court should
entertain
any writ petition, suit or application which is connected
in any manner with the discharge of obligation imposed on the
respective parties to the present proceedings.
If any such writ
petition, suit or application
is already entertained, the Courts
should not proceed with the same till further orders of this Court.
C The
BCCI and the Doordarshan will mutually solve the prob-
lem of the Control Room and Storage Room facilities needed
by
the Doordarshan, preferably in one meeting in Bombay on
20th
October, 1994".
D 22. The law on the subject discussed earlier makes it clear that the
fundamental right to freedom of speech and expression includes the right
to communicate effectively and to
as large a population not only in this
)
country but also abroad, as is feasible. There are no geographical barriers
on communication. Hence every citizen has a right to use the best means
available for the purpose. At present, electronic media,
viz.,
T.V. and radio,
E is the most effective means of communication. The restrictions which the
electronic media suffers in addition to those suffered
by the print media,
are that (i) the airwaves are a public property and they have to be used for
the benefit of the
society at large, (ii) the frequencies are limited and (iii)
media
is subject to pre-censorship. The other
limit~tion, viz., the
F reasonable restrictions imposed by law made for the purposes mentioned
in Article 19(2)
is common to all the media. In the present case, it was not
and cannot be the case of the
Mm that the telecasting of the cricket
matches
was
not for the benefit of the society at large or not in the public
iilterest and, therefore, not a proper use of the public property. It was not
the case of the MIB that it was in violation of the provisions of Article
G 19(2). There was nothing to be pre-censored on the grounds mentioned in
Article 19(2). AS regards the limitation of resources, since the DD was
. prepared to telecast the cricket matches, but only on its terms it could not
plead that there
was no frequency available for telecasting. The DD could
also not have ignored the rights
of' the viewer~ which the High Court was
H at. pains to emphasise while passing its orders and to which we have also
I
+
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL (SA WANT, J.] 1129
made a reference. The CABJBCCI being the organisers of the event had a A
right to sell the telecasting rights of its event to any agency. Assuming that
the DD had no frequency to spare for telecasting the matches, the CAB
could certainly enter into. a contract with any agency including a foreign
agency to telecast the said matches through that agency's frequency for the
viewers in this country (who could have access to those frequencies) as well B
as for the viewers abroad. The orders passed by the High Court in effect
gave a right to DD to be the host broadcaster for telecasting in this country
and for the TWI, for telecasting for the viewers outside this country as well
as those viewers in this country who have an access to the TWI frequency.
The order was eminently in the interests of the viewers whatever its merits
on the other aspects of the matter. C
23. The orders passed by the High Court have to be viewed against
the backdrop of the events and the position of law discussed above. The
circumstances
in which the High Court passed orders and the factual and
legal considerations which weighed with it in passing them speak for
themselves. However,
Since the cricket matches have already been telecast, D
the question of the legality or otherwise of the orders has become academic
and
it is not necessary to pronounce our formal verdict on the
s~me. Hence
we refrain from doing so.
24. We therefore, hold as follows: E
(i) The airwaves or frequencies are a public property. Their use has
to be controlled and regulated by a public authority in the interests of the
public and to prevent the invasion of their rights. Since the electronic
media
involves the use of the airwaves, this
factor creates an in-built
restriction
on its use as in the case of any
ot~er public property. F
(ii) The right to impart and receive information is a species of the
right of freedom of speech and expression guaranteed by Article 19(1) (a)
of the Constitution. A
citizen has a fundamental right to use the best means
of imparting and receiving information and as such to have an access to G
telecasting for the purpose. However, this right to have an access to
telecasting has limitations on account of the use of the public
properfy, viz.,
the airwaves involved in the exercise of the right and can be controlled and
regulated
by the public authority. This limitation imposed by the nature of
the public property involved in the use of.the electronic media is in addition
to
the restrictions imposed on the right to freedom of speech and expres;. H
1130 SUPREME COURT REPORTS (1995] 1 S.C.R.
A sion under Article 19(2) of the Constftution.
(iii) The Central Government shall take immediate steps to establish
an independent autonomous public authority rep~esentative of all sections
and interest in the society to control and regulate the use of the airwaves.
B (iv)
Since the matches have been telecast pursuant to the impugned
order of the High Court,
it is not necessary to decide the correctness of
the said order.
(v)
The High Court will not apportion between the CAB and the DD
· the revenues generated by the advertisement.on T.V. during the telecasting
C of both the series of the cricket rilatches, viz., the Hero Cup, and the
International Cricket Matches played in India from October to December
1994, after hearing the parties on the subject.
D
25. The civil appeals are disposed of accordingly.
In
view of the disposal of the civil appeals, the writ petition
filed by
the Cricket Association of Bengal also stands disposed of accordingly.
B.P. JEEV AN REDDY, J. Leave granted in Special Leave Petitions.
E While I agree broadly with the conclusions arrived at by my learned
brother Sawant, J. in para 24 of his Judgment, I propose to record my views
and conclusions on the issues arising in these matters in view of their
far-reaching importance.
Cricket
is an interesting game. Radio, and more particularly the
F television has made in the most popular
game in India. It has acquired
tremendous mass appeal. Television has brought the game into the hearths
and homes of millions
of citizens across the country, enhancing its appeal
several-fold. Men, women and children who had no interest in the game
earlier have now become its ardent fans -all because of its broadcast by
radio and television. This has also attracted the attention of business and
G
commerce. They see an excellent opportunity of advertising their products
and wares. They are prepared to pay huge amounts therefore. The cricket
clubs which conduct these cricket matches have come to see an enormous
opportunity
of making money through these matches.
Previously, their
income depended mainly upon the ticket money.
Now, it probably does not
H
count'li:t all. The real income comes from the advertisements both in-stadia
I
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OP BENGAL [B.P. JEEV AN REDDY, J.J 1131
as well as the spot advertisements over radio and television. The value of . A
in-stadi~ ·adv.e.rtisement has increased enormously on ·account of its con
stant expOsure .on television during the progress of the game. Lured by this
huge revenues;· organisers of these events now propose to sell the broad
casting rights ~·:used compendiously to denote both radio and televisioii
rights -of these. events to the highest bidder, be he foreign agency or a B
local one. They find that Doordarshan is not in a position to or willing to
pay as much as the foreign agencies are. According, they have sold these
rights to foreign agencies. But -and here lies the rub -broadcasting the
event, particularly telecasting, requires import, installation and operation
of certain equipment
by these foreign agencies for which the law (Indian
Telegraph Act) requires a prior permission -licence -to be granted by
C
Government of India. Earlier, they wanted uplinking facility too through
Videsh Sanchar Nigam Ltd., a Government of India-owned company. Now
they suggest, it may not be necessary. They say, they can uplink directly
.
from their elU'th station installed, or parked, as the case may be, near the
playing field to their designated communication satellite which
will beam D
it back to earth. The revolution in communications/information technology
is throwing up new issues for the courts to decide and this is one of them.
The Doordarshan
says that alI these years it has been telecasting the
cricket events in India and has helped it popularise.
So also is the plea of
All-India Radio (AIR). They are Gov~rnment agencies -departments of E
Government. AIR and Doordarshan enjoy a monopoly in this country in
the matter of broadcasting and telecasting. They cannot think of any other
agency doing the same job. They are not prepared to reconcile themselves
to any other agency, more particularly, a foreign agency being invited' to
broadcast/telecast these events and they themselves being asked to
F
negotiate and purchase these rights from such foreign agencies. They say,
they along should be allowed to telecast and broadcast these events; that
they alone must act as the 'host broadcaster', which means they alone shall
generate the host broadcasting signal, which the
interesteci foreign agencies
can purchase from them. They are, of course not prepared to
p'ay as much
amounts
as the foreign agencies. They are seeking to keep away the foreign G
agencies with the help of the legal provisions in force in this country. If
they are successful in that, it is obvious, they may-they can -dictate terms
to the organisers of these events.
If they cannot, the organisers will be in
a position to dictate their terms. But here again, there
is another practical,
technological, problem. The foreign agencies
do beam their programmes H
1132 SUPREME COURT REPORTS [1995] 1 S.C.R.
A over Indian territory too, but for receiving these programmes you require
-period - a dish antenna, which costs quite a bit. Our TV sets cannot
receive these programmes through the ordinary antenna. Doordarshan
alone has the facility of telecasting programmes which .can be received
through ordinary antennae. Millions
in this country, who are deeply inter-
B ested in the game, cannot afford these dish antennae but they want to watch
the game and that can be provided
only by the Doordarshan. And this is
its relevance. Doordarshan says, if the organisers choose to sell their
telecasting rights to a foreign
agency, they would have nothing to do with
the event. The would not telecast it themselves.
If the foreign agencies can
telecast them,
well and good -they can do so in the manner they can, but
C Doordarshan would not touch the event even by a long barge-pole. But,
the Doordarshan complains, they are being compelled
by the courts to
telecast these events in public interest; such orders have been passed in
writ petitions filed
by individuals or
. groups of individuals purporting to
represent public interest; the Doordarshan
is thus made to lose at both
D ends -and the organisers are laughing all the way; telecasting an event
requires good amount of preparation; advertisements
have got to be col
lected
well in time; it cannot be done at the last minute; without advertise
ments, telecasting an event results in substantial loss the public exchequer
-it
says. These are the problems which have given rise to these appeals
and writ petitions. They raised
inter a/ia grave constitutional questions
E touching the freedom of speech and expression guaranteed by Article
)9(1)(a) of the Constitution. The interpretation of
Section 4(1) of the
Indian Telegraph Act, the right to establish private broadcasting and
telecasting facilities/stations -in short, the whole gamut of the
law on
broadcasting and telecasting has become involved in the issues arising
F herein.
FACTUAL
CONSPECTUS:
Cricket Association of Bengal (CAB) organised an international
cricket tournament under the name and
style of "Hero Cup Tournament"
G to commemorate and celebrate its diamond jubilee celebrations. Apart
from India, National teams of West Indies, South Africa,
Sri Lanka and
Zimbabwe agreed to participate though the national team
of
Pakistan
withdrew therefrom having agreed to participate in the first instance. The
Hero Cup Tournament comprised several one day matches and its attrac-
H tion was not confined to India but to all the cricket loving countries which,
~\
I
(
-~
MIN. OF INFORMATION AND BROADCASTINGv. CRICKET ASSN. OF BENGAL [B.P. JEEV AN REDDY, J.) 1133
in effect means all the commonwealth countries.
The tournament was to A
be held during the month of November, i993.
Until 1993, Doordarshan was
acting as the host broadcaster in respect
of all the cricket matches played
in India. It generated
the 'host broadcaster signal', watch. signal organisa
tions for being broadcast in their countries. However,
an exception was
made by the Government
of India -for reasons we do not know -in respect B
of an earlier tournament; a foreign agency was permitted to telecast the
matches in addition to Doordarshan. This exception appears to have set a
precedent.
On March 15, 1993 the Cricket Association of Bengal wrote to
Doordarshan asking it to send their detailed off er which could be any one
of the two alternatives mentioned in the letter. The two alternatives men
tioned were: "(a) that you (Doordarshan) would create 'host broadcaster
C
signal' and also undertake live telecast of all the matches in the tournament
or (b) that any other party may create the 'host broadcaster signal' and you
would
o_nly purchase the rights to telecast in India." The Doordarshan was
requested to clearly spell in their offer the royalty amount they were willing
to pay.
It was further made clear that
"in either case it may also please to D
noted that foreign T.V. rights will be retained by this association". The
letter also suggested the manner in which and by which date the royalty
amount was to
be paid to it. The offer from Doordarshan was requested
to be sent by March 31, 1993.
On March 18, 1993 Doordarshan wrote to
CAB asking it to send in writing the amount it expects as rights fee payable
to it for granting exclusive telecasting rights "without the Star T.V. getting E
it". On March 19, 1993, CAB wrote to Doordarshan stating that "we are
agreeable to your creating the Host Broadcaster Signal and also granting
you exclusive rights for India without
the
Star TV getting it. And we would
charge you US $ 800,000 (US Dollars Eight Hundred Thousand only ) for
the same. We will, however, reserve the right to sell/licence right p
worldwide, excluding India and Star TV. You would be under an obligation
to provide the picture and commentary, subject to the payment of your
technical fees". On March 31, 1993 Doordarshan replied back stating that
the exclusive rights for India without Star TV getting it may be granted to
Doordarshan at a cost of Rupees one crore. Evidently, because no
response was forth coming from CAB, the Doordarshan sent a reminder G
on May 4, 1993. On May 12, 1993, CAB wrote to Doordarshan. By this
letter,
CAB informed Doordarshan that they have now decided
"to
sell/allot worldwide TV Rights for the tournament to one party only,
instead
of awarding separate areawise and companywise contracts". In view
H
1134 SUPREME COURT REPORTS [1995] 1 S.C.R.
A of this revised decision, the CAB called upon Doordarshan to let them
)mow whether Doordarshan is in the deal and if so to submit its detailed
offer for worldwide TV rights by May
17, 1993. The Doordarshan was given
an option either to purchase
TV rights outright or to purchase TV rights
on the basis of sharing
of rights fee. Even before receiving this letter
of
CAB dated May 12, 1993, Doordarshan addressed a letter to CAB dated
B May 12, 1993 stating that while Doordarshan is still committed to its bid
of Rupees one crore, there is speculation that Pakistan may not participate
in the tournament in the tournament which would adversely affect the
viewership
and commercials. In such an eventuality, the Doordarshan said,
it
will have to re-think its bid.
c
On June 18, 1993 Doordarshan sent a fax message to CAB referring
to the press reports that CAB has entered into an agreement with
transworld Image
(TWI) for the
TV coverage of the said tournament and
that, therefore, Doordarshan has decided not to telecast the tournament
matches organised by paying
TWI. It stated that Doordarshan is not
D prepared to enter into any negotiation with TWI
.to obtain TV rights for
the event.
Months passed by
and then on
October 18, 1993, CAB wrote a
detailed letter
to Doordarshan. In this letter, CAB stated that though they
E were expecting an offer of Rupees two crores, Doordarshan was offering
only a sum
of Rupees one crore and that they
have· received offers from
agencies abroad including
TWI which were much higher than Rupees two
crores and that too in foreign exchange.
Since Doordarshan was not
interested in increasing its offer, the letter stated, CAB entered into a
F contract with TWI for the telecast of matches. Even so, the letter stated,
the CAB is still keen that Doordarshan comes forward to telecast the
matches since it does not wish to deprive
800 million people of this country
and that accordingly they have made TWI agree for co-production with
Doordarshan. It was also stated that Doordarshan should not claim ex
clusive rights and the CAB would be at liberty to sell the rights to Star TV.
G . The letter further stated that the Doordarshan has not been responding to
their letters
and that meanwhile several foreign TV organisations and
networks have been app.roaching them to telecast their matches to the
Indian audience. The letter also referred to their information received from
some other
sources that Doordarshan is interested in acquiring the rights
H of telecast provided it is allowed to produce some matches directly and
>--
I
..,.
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [B.P. JEEV AN REDDY, J.) 1135
that matches produced by TWI are made available to Doordarshan without A
payinent of technical fees. The letter indicated the matches which Door
darshan would be allowed to telecast directly and the matches which TWI
was to telecast directly. This offer was, however, subject to certain condi
tions which inter alia included the condition that Doordarshan
will not pay
access
fee to CAB but shall allow four minutes'advertising time per hour
(i.e., a total of twenty eight minutes in seven hours) and that
CAB will be
at liberty. to sell such time slots to advertisers and receive the proceeds
therefor
by itself.
B
On October 27, 1993 Doordarshan replied that they are not inter
ested in the offer made
by CAB in its letter dated
October 18, 1993. They C
stated that they have never agreed to any joint production with TWI. On
October 29, 1993, CAB again wrote to Doordarshan expressing their regret
at the decision of the Doordarshan conveyed in their letter dated Septem-
ber 27, 1993 and stated, " ..... purely in deference to your sensitivity about
taking a signal from TWI, CAB would be quite happy to allow you
production of your
own picture of matches; you may like to buy rights and D
licence from CAB, at a price to be mutually agreed upon. We would also
like to clarify that these rights
will be on non-exclusive basis for Indian
territory". Doordarshan's response
was requested at the earliest.
On Oc
tober 30, 1993, Doordarshan confirmed its message sent that day express-
ing their refusal to pay any access fee to CAB and stating further that if
E
Doordarshan has to telecast the matches live, CAB has to pay technical
charges/production fee at the rate of Rupees
five lacs per match and that
Doordarshan shall have exclusive rights for the signal generated. There was
a further exchange of letters,
which it is unnecessary to refer.
While the above correspondence
was going on between CAB and
Doordarshan, the CAB applied for and obtained the following permissions
from certain departments. They are :
F
(a)
On September 2, 1993, the Government of India, Ministry of
Human Resource Development (Development
of Youth Affairs and G Sports) wrote to CAB stating that government has no objection to the
proposed visit of the cricket teams of the participating countries in Novem-
ber
1993. The government also expressed its no objection to provide the
conversion facility for guarantee money and prize money for foreign players
subject to a particular ceiling.
H
1136 SUPREME COURT REPORTS (1995] 1 S.C.R.
A (b) Videsh Sanchar Nigam Limited (VSNL) indicated its charge for
providing uplink facility to INTELSAT and acc.epted the said charges when
paid
by the CAB/TWI.
(c)
On October 13, 1993 the Government of India, Ministry of Home
Affairs wrote to CAB expressing its no objection to the filming of cricket
B matches and to the use of walkie-talkie sets in the playground during the
matches. It also expressed its no objection in principle to the production and technical staff of TWI visiting India.
(d) On October 20, 1993, the Department of Telecommunications
C addressed a letter to the Central Board of Excise and Customs expressing
its no objection to temporary import of electrical production equipment
required for transmission of the sai~ matches between November 7-27,
1993 subject to the organisers coordinating with wireless planning commit-
tee for frequency clearance and also with VSNL. ·
D (e) On November 2, 1993, the Ministry of Finance (Department of
E
Revenue) addressed a letter to Collector of Customs, Sahar Airport,
Bombay intimating him of the grant
of exemption from duty for the
temporary import of electrical equipment
by TWI, valued at Rs. 4.45 crores
subject to certain conditions.
Inasmuch
as no agreement could be arrived at between CAB and
Doordarshan, the Department of Telecommunications addressed a letter
to
VSNL on November 3, 1993 (on the eve of the commencement of tlie
matches) to the following effect: "Refer to your letter No. 18-IP(TWI)/93-
TG dated 13.10.1993 and discussion of Shri V.Babuji with W.A. on
F 2.11.1993 regarding regarding uplink facility for telecasting by TWI of
C.A.B Jubilee Cricket matches. You are hereby advised that uplink
facilities for this purpose should NOT repeat NOT be provided for T.W.I.
This has the approval of Chairman (TC) and Secretary, DOT. Kindly
confirm receipt." The VSNL accordingly intimated CAB of its inability to
G grant uplinking facility and also returned the amount received earlier in
that behalf.
Faced with the above developments, the CAB approached the Cal·
cutta High Court by way of a writ petition being Writ Petition No. F.M.A.'I.
Nil of 1993 asserting that inspite
of their obtaining all permissions including
H the
TV uplinking facilities from VSNL as contemplated by the proviso to
·"
-...
MIN. OF JNFORMA TION AND BROADCASTING"· CRICKET ASSN. OF BENGAL [B.P. JEEV AN REDDY, J.] 1137
Section 4 of the Indian Telegraph Act, Doordarshan -and other A
governmental authorities at the instance of Doordarshan -are seeking to
block and prevent the telecast
of the matches by TWI. The reliefs sought
for
in the writ petition are the following :
(i) A
mandamus commanding Respondents 1, 3 and 4
(Union of
India, Director General, Inforillation and Broadcasting and Director B
General Doordarshan) and other respondents to ensure uninterrupted and
unobstructed telecast and broadcast
of Hero Cup tournament between
November
10-28, 1993 and to take all appropriate measures for such
telecast and broadcast.
(ii) A
mandamus to the respondents to provide all arrangements and
facilities for telecast and broadcast of the Hero Cup tournament by the
appointed agencies of the petitioners.
(iii) A mandamus restraining the respondents from seizing, tamper-
c
ing with, removing or dealing with any equipment relating to transmission D
telecast and broadcast of the said tournament; and
(iv) Restraining the respondents from interfering
of disrupting in any
manner the
live transmission and broadcast of the said tournament by the
petitioners and their agents.
A learned
Single Judge of the Calcutta High Court heard the matter
on November 8,
1993. The learned judge directed the matter
to· come up
on the next day with a view to enable the Advocate for the Union
of India
to obtain necessary instructions in the matter.
At the same time, he granted
an interim order of injunction in terms
of prayers (i) and
G) in the writ
petition effective till the
end of the next day. Prayers (i) and
G) in the writ
petition
read as follows :
"(i) Interim order commanding the Respondents, their servants,
agents, employees
or otherwise to provide all adequate assistance
E
F
and cooperation to the petitioners and/or their appointed Agency G
for free and uninterrupted telecast and broadcast of
HERO CUP
Tournament between 10th November, 1993 and 28th November,
1993;
G) An interim order of injunction restraining the Respondents
their servants, agents, employees and others from tampering with,
H
1138 SUPREME COURT REPORTS [1995] 1 S.C.R.
A removing, seizing or dealing with any equipments relating to trans
mission telecast and broadcast of HERO CUP TOURNAMENT
belonging to and/or their appointed agency in any manner what
soever."
The order made it clear that the said order shall not prevent Door
B darshan from telecasting any match without affecting any arrangement
arrived at between CAB and TWI.
On the next day, i.e., November 9, 1993, the learned Single Judge
heard the Advocate for the Union of India. but declined to vacate the
C interim order passed by him on the previous day. He further restrained the
respondents to the writ petition for interfering with the frequency lines
given to the Respondent No.
10, i.e., TWI as per request made by VSNL
to INTELSAT in view of the fact that VSNL had accepted the proposal
of CAB and TWI and had also received the fees therefor. On November
D 11, 1993, the learned Judge passed another order, on the representation of
the J~arned counsel for the writ petitioners, that the equipment brought by
TWI for the purpose of production of transmission and telecasting of
cricket matches, which
was seized by the Bombay customs authorities,
allegedly under the instructions
of the Ministry of Telecommunications and
Ministry of Information and Broadcasting, be released. The learned Judge
E directed that all the governmental authorities including the customs
authorities shall act in accordance with the interim orders dated 8/9th
November,
1993. Meanwhile, it appears, certain individuals claiming to be
interested
in watching cricket matches on television filed independent writ
petitions for a direction to the Doordarshan to telecast the matches. The
F learned Judge expressed the opinion that by their internal fight between
Respondents 1 to
5 on one hand and respondent No. 6 (reference is to the
ranking in the writ petition) on the other, millions
of viewers in India are
deprived
of the pleasure of watching the matches on television. He then
referred to the representation that at the instance of Doordarshan and
others, All-India Radio (AIR) too has stopped broadcasting the matches.
G The learned Judge observed that there is no reason for AIR to do so and
accordingly directed the
Union of India and others including the Ministry
of Information and Broadcasting to broadcast the remaining cricket
matches on AIR as
well.
H
·Aggrieved by the orders of the learned Single Judge aforemen-
·,
I
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL (B.P. JEEVAN REDDY, J.] 1139
tioned, the Union of India and other governmental agencies filed a writ A
appeal (along with an application for stay) which came up for orders on
November
12, 1993 before a Division Bench of the Calcutta High Court. It
was submitted by the learned counsel for the
Union of India that though
the Doordarshan
is very much keen to telecast the matches, the CAB
has
really created problems by entering into an agreement with TWI. He B
submitted that under Section 4 of the Telegraph Act, 1885, tht Central
Government has the exclusive privilege to establishing, maintaining and
working telegraph and that the definition of the expression "telegraph"
includes telecast. He submitted that neither CAB nor TWI have obtained
any licence or permission
as contemplated by the proviso to Section 4(1)
of the
IQ.dian Telegraph Act and, therefore, TWI cannot telecast the C
matches· from any place in Indian territory. After referring to the rival
contentions of .the parties and the correspondence that passed between
them, the Division Bench observed that there were
two dimensions to the
problem arising before them,
viz., (i) the right to telecast by Doordarshan
within India and (2) right of TWI to telecast outside India for viewers
D
outside India. Having regard to the urgency of the matter and without
going into the merits of the rival contentions, and keeping in
view the
interest of millions of viewers, the Division Bench observed:
"we record, as
Doordarshan is inclined to telecast the matches for the Indian viewers on
receipt of Rs. 5 lakhs per match and to enjoy the exclusive right of
E
signalling within the country being the host broadcaster, we direct the CAB
to pay immediately a sum of
Rs. 5 lakhs per match for this purpose and
the collection of revenue on account of sponsorship or otherwise in respect
F
of 28 minutes which is available for commercial purpose be realised by the
Doordarshan. on condition that such amount shall be kept in a
sep~ate
account and shall not be dealt with and dispose of the said amount until
further orders" to be passed in the said writ appeal. The Doordarshan was
acco~dingly. directed to immediately start telecasting the matches. The
Bep;ch .then took up the question whether TWI is entitled to telecast the
mat¢.hes from Indian territory. It noted that no formal order as required
under the proviso to Section 4(1) of the Telegraph Act has been granted
G
in favour of either CAB or TWI.
Purporting to take notice of the national
and international impact of the issue, the Bench directed the 5th appellant
before them,
viz., the Secretary, Ministry of Telecommunications, Govern
ment of India "to consider
the facts and circumstances of the case clearly
suggesting that there had already been an implied grant of pennission, shall H
1140 SUPREME COURT REPORTS [1995] 1. S.C.R.
A grant a provisional pennission or licence without prejudice to the rights and
contentions of the parties in this appeal and the writ application and subject
to the condition that Respondent No. 6 (5th appellant in appeal) in the
writ application
will be at liberty to impose such reasonable terms and
conditions consistent with the provision to Section 4(1) of the Indian
B Telegraph Act having regard to the peculiar facts and circumstances of the
case." (emphasis added). The Secretary was directed to decide the said
question within three days from the date of the said order after hearing all
the parties before the Division Bench, if necessary.
On November 14, 1993, the matter was again taken up by the Division
C Bench, on being mentioned by the parties. The first problem placed before
the Bench was placement of cameras. The Doordarshan authorities com
plained that they have not been given suitable place for the purpose of
telecasting. Doordarshan further submitted that there can only ·be one
signalling from the field and that in terms
of the orders of the Division
Bench, Doordarshan should be the host broadcaster and TWI should take
D the signal from Doordarshan. This request was opposed by the CAB and
TWI. The
Bench directed that according to their earlier order the TWI is '
entitled to telecast outside the country and to send their signal accordingly
and in case the signalling
is required to be made by TWI separately, the
necessary permission should be given by the Doordarshan and other com-
E petent authorities therefor. Regarding placement of cameras, certain
direc
• tions were given.
Aggrieved by the orders of the Division Bench dated 12/14th Novem
ber, 1993, the Secretary, Ministry of Information and Broadcasting,
F Government of India, Director General, Doordarshan and Director
General, Akashvani filed two Special Leave Petitions in this court, ·viz.,
S.L.P. (C) Nos. 18532-33 of 1993. Simultaneously, CAB filed an inde
pendent writ petition is this Court under Article 32 of the Constitution
being W.P. (C) No. 836 of 1993. The prayers in this writ petition are
practically the same
as are the prayers in the writ petition filed in the
G Calcutta High Court. The additional prayer in this writ petition related to
release of equipment imported by TWI which was detained by customs
authorities at Bombay.
On November 15, 1993, this court directed the
Secretary. Ministry of Telecommunications, Government of India to hold
the meeting, as directed
by the Calcutta High Court, at
4.30 P .M. on that
H very day (November 15, 1993) and communicate the decision before 7.30
+
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL (B.P. JEEVAN REDDY, J.J 1141
P.M. to TWI or its counsel or to CAB or its counsel. The customs A
authorities were directed to release the equipment forthwith. The TWI was,
however, restrained from using the equipment for telecast purpose unless
a licence
is issued by the Secretary, Ministry of Telecommunications in that
behalf.
Pursuant to the orders of this court, Shri N. Vithal, Chairman, B
Telecommunications and Secretary, DOT passed orders on November 15,
1993 which were brought to the notice of this court on that very.day. This
court stayed the said order to the extent it imposed a condition that TWI
will get their signal from Doordarshan for uplinking through VSNL. The
TWI
was permitted to generate their own signal by focussing their cameras C
on the ground. It was observed that the
·said order shall not be treated as
a precedent in future' since it was made in the particular facts and cir-
cumstances of that case. '·
' ' ., ' '' . -
The matches were telecast in accordance with the directions given
by this Court and the Hi~ Court but the Special Leave Petitions and the D
Writ Petition remained pending. While so, a new development took place
in 1994 which now requires to be mentioned. · ·· 1..
J. . I (
. In connection with World Cup. Matches scheduled for the year t996,
certain correspondence took place between Doordarshan and the ·Board E
of Cricket Control, India (BCCI). While the•said cgrrespondence wa:s in
progress, each side re-affirming their respective stand, BCCI arranged
certain international cric~et matches to be . played between the national
teams of lndia,i West .Ii:t.dies .<!lld .. N.e.w-z.ealand during the months, ~f
Octobe:r-:Qe~mber, 1994. J;JCClenter~<JJnto a11.agreement with ESPN, a
foreigq agen_cy, for telecasting all the
1 cricke_t ma~ches organised by BCCI ,F
ii). W,<;lie;t for the ne~ fi-ve ,Years for a cons~deratiQD of US $30 millio~.
Doord¥-was,wtally exclude<J,. ESPN in turn made .an offer to Door
darsban to purchase the .. rigi!t to te\equ;t th!'! ~tches in India.from ESPN
at a p~ticular considerjltjpn whicp. the Doord,arshan decli~d,
On September" W, ;1994; we c~~enced the hearing of th~~~ ~atters. G
While the.Hearing ~as .. in progre~s; the BC-CI fiJed a. writ petiti~n, being
W~itJ>~tit~n l'fo:'6~.8f,!994,:f?r.is~uai.i~ ~f ~~it, ~~der or direction to
the respondents (Government
of India and its various departments and ~gencieli) · i~ is;ue and ~ant the necessary licences and/or perntlssions in
aq::o.rdanc~ With ''1~w to_ BCCI o~ its appointed . agencies for proquction, H
.. t.. .,,J \. • . • -, J l ii ' ""-' ,_. • ' •
1142 SUPREME COURT REPORTS [1995] 1 S.C.R.
A transmission and live telecast of the ensuring international cricket matches
to be played during the months of October -December, 1994 and to
restrain the Doordarshan and other authorities from interfering wi~h or
obstructing
in any manner the transmission, production, uplinking and
telecast of the said matches. This writ petition
was occasioned because the
B authorities were said to be not permitting
ESPN to either bring in the
necessary equipment or to telecast the matches from the Indian territory.
The said writ petition was withdrawn later and Interlocutory Applications
filed
by the BCCI in the pending special leave petition and writ petition
seeking to be impleaded in those matters and for grant of relief similar to
those prayed for in Writ petition No.
628 of 1994. Since the hearing was
C yet to be concluded, we passed certain order similar to those passed by
this court earlier -confined, of course, to the matches to be played during
the months of October-December,
1994.
D
·E
CONTENTIONS URGED BY THE PARTIES AND THE QUES
TIONS ARISING FOR CONSIDERATION:
The CAB and BCCI have taken a common stand, were represented
by the same counsel and have also filed common written submissions.
It is
not possible to reproduce all their contentions as put forward in
thejt
written submissions because of the number of pages they run into. It woUid
suffice if I set out their substance. The submissions are :
(a) CAB and BCCI are non-profit-making sporting organisations
devoted to the promotion
of cricket and its ideals. They organise
interna
tional cricket tournaments and series from time to time which call for not
p only good amount of organisation but substantial expense. Payments have
to be made to the members of the teams participating. Considerable
amount of money has to be expended on the training of players and
providing infrastructural facilities
in India. All this requires funds which
have to be raised by these organisations on their
own. Accordingly, CAB
G
. entered into an agreement with TWI for telecasting the Hero Cup Tour
nament matches to be played in the year 1993. The necessary permissions
were applied for and granted by the Ministries of Home, Defence, Human
Resource Development
and Telecommm.}ications. The Ministry of
Telecommunications/VSNL accepted the :nonies for the purpose of
providing uplinking facilities, which does amount to implied grant' of per-
H mission under the proviso to Section 4(1) of the Telegraph Act. In any
..
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL (B.P. JEEV AN REDDY, l.J 1143
eve<nt, the acceptance of the monies made it obligatory upon the ministries A
to grant the said licenee. It is only on account of the interference and
lobbying by Doordarshan and Ministry of Information and Broadcasting
that the order ministries went back and refused to permit the telecast. The
action of the Doordarshan and the Ministry of Information and Broadcast-
ing
is malafide, unreasonable and authoritarian besides being illegal.
(b) The game
of cricket provides entertainment to public. It is a form
of expression and is, therefore, included within the
fr.;:edom of speech and
expression guaranteed by Article 19(1)(a)
of the Constitution. This right
includes the right to telecast and broadcast the matches.
J'his right belongs
B
to the organiser of the matches which cannot be interfered with by anyone. C
The organiser is free to choose such agency as it thinks appropriate for
telecasting and broadcasting its matches. The Doordarshan
or the
Minj.stry
of Information and Broadcasting can claim.no right whatsoever to telecast
or broadcast the said matches. If they wish to do so, they must negotiate
with the organiser and obtain the right. They have no inherent right, much
D
less a monopoly, in the matter of telecasting and broadcasting these
matches. It
is not their events. If the organisers, CAB and BCCI herein,
choose to entrust the said rights to a foreign agency, such foreign agency
is merely an agency
of the organisers and the mere fact that it happens to
be a foreign agency is no ground for depriving the organisers, who as
Indian citizens, are entitled to the fundamental right guaranteed by Article
E
19(1)(a). The said right can be
restri~cd or regulated only by a law made·
with reference to the grounds mentioned in clause (2) of Article.19 and on
no other ground.
(c) Section 4
of the Indian Telegraph Act must be understood and F
construed in the light of Article 19{1)(a).
So read and understood, it is only
a regulatory provision. H a person applies for a licence for telecasting or
broadcasting his Speech and expression - in this case the game of cricket
-the appropriate authority
is bound to grant such licence unless it can seek
refuse under a law made
in terms of clause (2) Article 19. The appropriate
authority cannot also impose such conditions as would nullify
or defeat the G
·
guaranteed freedom. The conditions to be imposed should be reasonable
and relevant to the grant.
( d) Doordarshan
or AIR has no monopoly in the matter of
teleca..~t- ·
ing/broadcasting. Radio and television are only a medium through which H
•
.A
1144.
' '
. SUPREMECOURTREPORTS
freedom of speech and expression is expressed. Arti~le 19(2) does not
permit any monopoly as does clause (6) in the nU.tier of Article 19(1)(g);
Section 4, which contemplates grant of telegraph licences is itself destruc-
tive
of the
claim of monopoly by Doordarshan/ AIR.
. '
~ :(e) Right t~ disseminate and receive information is a part.of the right
B guaranteed by Article 19(1)(a). Televising the cricket match
is form of
dissemination of information. The mere fact that
the organisers earn some
.. i,;come from such activity does not make it anytheless a form of expression.
' It has been held repeatedly by this court in the matter of freedom of press
. that the mere fact that publication of newspaper has also certain business·
cl features is no ground to treat it as a business proposition and that it
· ·• remain:; an activity relatable to Article 19(1)(a). Business activity is not the
main but only an incidental activity of CAB/BCCI, the main activity being
promotion of cricket. It follows that ~henever any citizen of this country
seeks
to
exercise that right, ·all necessary permissions have to be granted
by the appropriate authorities.
The only ground upon which it can be
D refused is with reference to law made in the interest of one or the other
ground mentioned
in Article 19(2) and none
else •
. ' (I) With the technological advance and the availability ~f a large
number of frequencies and channels, being provided by the increase num~
E her of satellites, the ariument of fuitlted frequencies and/or scarce resource
is no longer tenable. The BCCI does not want allotment of frequency-not
even
the uplinking
fa~ty; smce it has the facility io uplink directly from
the
earth station
to· Gorlzon-Russion. satellite · -with which ESPN has an
arrangement. All that the BCCI wants is a licence/permission for importing
and operating the earth station, wherever the match is played. In such an
F. 'eventuality, Doordarshan does not come into picture at all Of course, in
ro,;nection with He~o Cup matches, the CAB wanted uplinkitig facility for
the r~ason that it wanted uplinking to INTELSAT, which is provided only
.. !hr(;c;gh VSNL If an organiser does.not want uplinking to INTELSAT, he.
need not even approach VSNL As a matter of fact, major networks in
G ; l[nited Stat~~ have their o'IVn satellites. · · · .
'· -~ On the other hand, the submissions on bi:half of the Doordafshan and
. the Ministry of Information and Broadcasting are the following : ·
· (i) The CAB or for that matter BCCI did not even apply for a licence;
H · Ullder the proviso to Section 4(1) nor was such licence granted by the
"
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OP BENGAL [B.P. JEEVAN REDDY. J.) l 145
appropriate authority at any time or on any occasion. The grant of permis- A
sion by other departments including the collection of fees by VSNL does
not amount to and cannot take the place of licence under the proviso to
Section 4(1). In the abseece of such a licence, the CAB/BCCI or their
agents had
no right to telecast or broadcast the matches frotn the Indian
territory. The argument of implied permission -or the alternate argument
B
that the authorities were bound to
gr~t such permission - is misconceived,
more particularly, in the absence of even an application for grant of licence
under Section 4 of the Telegraph Act.
(ii) The Calcutta High Court was not right in giving the directions it
did. Particularly the direction given in its order dated November
12, 1993 C
to the Secretary, Ministry of Telecommunications, Government of India,
was contrary to law. While directing the Secretary to consider the facts and
circumstances of the case, the High Court expressly opined that there
was
already an implied grant of permission. After expressing the said opinion
the direction
to consider was a mere formality and of little significance. D
The charge of malafides and arbitrary and authoritarian conduct levelled
against Doordarshan and a Ministry of lnformation and Broadcasting is
wholly unfounded and unsustainable in the facts and circumstances of the
case. In the absence of a licena,e under Section 4 of the Telegraph Act,
VSNL could not have granted uplinking facility and it
is for that reason E
that the Department of Telecommunications wrote its letter dated Novem-
ber
3, 1993 to VSNL.
(iii) Realising the
lack of coordination among the various ministries
concerned in granting permission in such a matter, the Government of
India has since taken a policy decision in the meeting of the Committee of F
Secretaries held on November U, 1993. It has been decided that satellite
uplinking from the Indian soil should be within the exclusive tompetence
of the Ministry of Information and Broadcasting/Department of
Space/Department of Telecommunications and that similarly the telecast
of sports events shall be within the exclusive purview of the Doordar-
G · shan/Ministry of Information and Broadcasting who in turn could market
their rights to other parties on occasion in whole or in part.
It has been
further decided that in respect of any such 'event, the organiser shall
contact the specified nodal ministry which in turn
will coordinate with all
other concerned departments.
In short, what may be called a 'single .H
1146 SUPREME COURT REPORTS [1995] 1 S.C.R.
A window system' has been evolv_ed which is indeed in the interest of or
ganisers of such events.
(iv)
So far as the contention based upon .Article 19(i)(a) is con
cerned, the contentions of CAB/BCCI are misleading and over-simplistic.
B The right guaranteed by Article 19(1)(a) is not limited to organisers of such
sports events. The said right
is guaranteed equally to the broadcaster and
the viewers. Among them, the
·right of the viewers is the more important
one. The decisions rendered
by this court in the matter of freedom of press
are not strictly relevant
in the matter of broadcast/telecast. Telecasting a
sports event
is distinct from the event
it~elf. It is evident that the
C CAB/BCCI are seeking to earn as much as possible by selling the telecast
ing rights. It
is nothing but commerce and an activity solely relatable to
Article 19(1)(g) and not to Article 19(1)(a). Inviting bids from
all over the ..
world and selling the telecast rights to the highest bidder has nothing to
do with Article 19(1)(a). In any event, the predominant element in such
D activity is that of business. The interest of general public is, therefore, a
relevant consideration in such matters. The public interest demands that
foreign agencies should not be freely permitted to come and set up their
telecasting facilities
m India in an unrestricted fashion. The occasion for
inviting foreign agencies may possibly arise only
if Doordarshan and AIR
E refuse to telecast or broadcast the event which they have never done. The
Doordarshan
was and is always ready to undertake the telecasting on
reasonable terms but the CAB and BCCI were more interested in deriving
maximum profit from the event. Doordarshan cannot certainly compete
with foreign agencies who are offering more money not merely for obtain-
F ing the right to telecast these events but with the real and ultimate object
of gaining a foothold in the Indian telecasting scene. Through these events,
the foreign telecasting organisations, particularly
ESPN, are seeking entry
into Indian market and it is for the reason that they are prepared to pay
more. Their interest
is something more than more commercial.
G
(v) The present situation is that the Doordarshan and AIR has got
all the facilities of telecasting and broadcasting the events in India. They
have been doing it for over the last several decades and they have the
necessary infrastructure. The Doordarshan
is taking all steps for updating
its equipment and for training its technicians to handle the latest equip-
H
ment. It .. is also entering into tie-ups with certain foreign agencies for the
MIN. OF INFORMATION AND BROADCASl'INGv. CRICKET ASSN. OF BENGAL (B.P. JEEV AN REDDY, J.J 1147
purpose. They have always been prepared for any reasonable terms. Both . A
Doordarshan and· AIR are agencies of the State. Until recently, 97% of the
telecasts made
by Doordarshan did not earn any income. They only in
volved expense. Its
income was derived mainly from the remaining three
per cent of its activities including sports events like cricket. Recently, there .
has been a slight change in policy but the picture largely remains the same. B
There is nothing illegitimate or unreasonable in Doordarshan seeking to
earn some money in the matter of telecast
of such events.
(vi) The very nature
of television media is such that it necessarily
involves the marshalling
of the resource for the greatest public good.
'rhe
state monopoly is created as a device to use the resource for public good. C
It is not violative of the right of free speech so long as the paramount
interest
of the viewers is subserved and access to media is governed by the
'fairness doctrine'. Section 4 of the Telegraph Act cannot be faulted on any gro;md. Indeed, in none· of the petitions filed by the CAB/BCCI has the
validity
of the monopoly of Doordarshan questioned. If the argument of
the CAB/BCCI is accepted it would mean a .proliferation of television D
stations and telecasting facilities by all and sundry, both domestic and
foreign, which would not be in the interest of the country. Indeed, the other
side has not placed any material to show that such free grant
of licences
would serve the public interest.
E
(vii) Section 4 of the Telegraph Act is in no way inconsistent with
the monopoly
of Doordarshan/AIR. Indeed, it supports it. The American
decisions are not really relevant to the Indian context. The availability of
more
or unlimited number of frequencies or
channels is no ground. to
permit free and unrestricted import, establishment and operation~- of
Radio!f elevision stations, earth stations or other such equipment. · F
In the light of the contentions advanced, the following questions arise
for consideration :
1. (a) Whether a licence or permission can be deemed to have been
granted to CAB under the proviso to Section 4
of the Indian Telegraph G
Act, 1885 for telecasting the Hero Cup Tournament matches played
November,
1993?
(b) If it is found that there was no such permission, was it open to
the Calcutta High Court to
give the impugned directions? H
--•. -/-;',,..---:-· :,,.
-'·. \- ·-- __ ,.
'
'
"
' '
'SUPREME COURT REPORTS (1995) 1 S.C.R.
A ·< -( c) Whether the charge of malafides and arbitrary and authoritarian
· ccinduct attributed to Doordarshan by CAB justified?.
2.( a) Whether organising a fricket match or other sports event aform
of speech and expression guaranteed by Article 19(1)(a) 'of the Constitu
tion?
B·
_ (b) If the question in Clause (a) is answered in the affirmative, the
further question is whether the right to telecast such event is also included
within the right of free-speech and expression? ·
, ,·: --' . I , ' . • .
I ( c) Whether the organiser of such sports events can claim the right
c to ~ell the telecasting rights of such events to . such agency as they think
, p~oper and whether they have the right to comJJel the government to issue
all requisite permissions, licences and facilities to enable such agency to .
telecast the events from the Indian soil? Does the right in Article 19(1)(a)
take in all such rights? - -· · · -
D ·:-• .... >_;:..-.
. (d) If the organiser of sports does have ili~iights mentioned in (c),
whether the government
is not entitled to impose
any' conditions thereon
exeept charging technical fees or service charges, "as the case may be?
- '
· 3. Whether the impact of Article 19(1)(a) upon Section 4 of the
· E Telegraph Act is that whenever a citizen applies for a licence under the
I . " . .
· · proviso to Section 4(1) it should be granted unless the refusal can be traced
io a law within the meaning of Article 19(2)?
· 4. Whether the virtual monopoly existing in favour of Doordarshan
F
in the matter of telecasting from Indian soil violative of Article 19(1)(a) of
the Constitution? ·
G
----------_ --· . ANSWERS TO THE QUESTIONS:
. ' QUESTION
NO. I
:
, . Thefa_cts narrated in Part-II show .that neither CAB nor BCCI ever
applied for· a licence under the first proviso to sub-section (1) of Section
4 of the Telegraph Act. The permissions obtained from other departments,
viz., from the Ministry of Human Resource, VSNL, , .. Ministry of Home
Affairs,· Ministry of Finance or the Central Boord of Excise and Customs
.H cinnot take the place of licence under Section 4(1). Indeed, this fact was.
+
'·I -
MIN. OF INFORMATION AND BRO~Gv. CRICKET ASSN. OF BENGAL [B.P. JEEV AN REDDY, J.J 1149
recognised by the Division. Bench of the Calcutta High Court and it is for A
the said reason that it directed the s·ecrefary to 'the Telecom Department
to decide the question whether such licence should be granted to CAB
in
connection with Hero Cup matches. But while directing the Secretary to
consider the said question, it chose to make certain
obserations which had
the effect of practically foreclosing the issue before the Secretary. The B
Division Bench observed that the Secretary should proceed on the assump-
tion that there
was an implied grant of permission. As a matter of fact, the
Secretary'
was directed to grant the licence in so many words, thus leaving
no discretion in him to examine the matter in accordance with law. It
became an empty formality. I am of the opinion that while asking the
Secretary to decide the issue under proviso to Section 4(1),
his discretion C
and judgment could not
have been restricted of fore-stalled in the above
manner. Be that as it
may, in pursuance of the said directions -and the
directions of this Court -the Secretary passed certain orders, the legality
of whicli has now become
academic_ for that both the events, viz., the Hero
Cup matches as well as the recent international matches (October ~ D
December, 1994) are over. The orily thing that remains to be considered is
whether the charge of tnalafides and arbitrary and authoritarian conducted
attributed to the Doordarshan by CAB the BCCI
is justified. Firstly,
neither the CAB nor its foreign agent had applied for
or obtained the
licence/permission under Section 4(1). The permissions granted by other
E
departments are no substitute for the licence under the proviso to Section
4(1). There
is nothing
to· show that seizure of imported equipment by
customs authorities was at the instance of Doordarshan; it appears to
be
for non-compliance with the requirements subject to which permission to
import
was granted. Secondly, this issue, in my opinion, cannot be ex
amined in isolation but must be judged in the light of the entire relevant
context. The Doordarshan did enjoy monopoly
of telecasting in India
which
is the product of and appears to be sustained by Section 4(1) of the
Telegraph Act. There
was no occasion when a foreign agency was allowed
F
into India without the consent of or without reference to Doordarshan to
telecast such events. All these years, it
was
Doordarshan which was G
telecasting these matches. On one previous occasion, a foreign agency was
allowed but that
was by the Doordarshan itself or at any rate with the
consent of and
in cooperation with the
Doordarshan. It is for this reason
that the Doordarshan
was asserting its exclusive right to telecast the event
taking place on Indian soil and was not prepared to purchase the said right
H
1150 SUPREME COURT REPORTS (1995] 1 S.C.R.
A from a foreign agency to whom the CAB and BCCI sold all their rights. It
is also worth noticing that neither CAB nor for that matter any other sports
organisation
had ever before invited a foreign agency to telecast or broad. cast their events -at any rate, not without the consent of Doordarshan. The
agreement with TWI entered into by CAB and the agreement with ESPN
entered into by the BCCI were unusual and new developments for all
B concerned. Like the bureaucracy everywhere, the Indian bureaucracy is
also perhaps slow in adjusting
.to the emerging realities, more particularly
when they see a threat
to their power and authority in such developments.
In the circumstances, their objection to a foreign agency coming in and
telecasting such events without even obtaining a licence under the proviso
C to
Section 4(1) of the Telegraph Act cannot be termed malafide or ar
. bitrary. So far as the charge of authoritarianism is concerned, it is equally
unsustainable for the reason that the CAB/BCCI had no legal right nor any
justification in insisting upon telecasting their events through foreign agen
cies without even applying for and/or obtaining a licence required by law.
D The correspondence between them shows that each was trying to get the
better of the other; it was like a game of fencing. In my opinion, therefore,
the charge
of malafides or for that matter, the charge of arbitrary or
authoritarian conduct levelled against the Doordarshan and/or other
governmental authorities is unacceptable in the facts and circumstances of
this case.
E
QUESTION
NOS. 2, 3, AND 4:
The contentions of Sri Kapil Sibal, learned counsel for the
BCCl/CAB have been set out hereinbefore. What do they really mean and
F imply? It is this: the game of cricket provides entertainment to public at
large.
The entertainment is organised and provided by the petitioners.
Providing entertainment is a form
of expression and, therefore, covered by
Article 19(1)(a)
of the Constitution. Except in accordance with a law made
in terms
of clause (2) of Article 19, no restriction can be. placed thereon.
The organiser of the game has the right to telecast and broadcast the game.
G None can stop it -neither the Doordarshan nor AIR. The monopoly in
faV01!J'. of Doordarshan and AIR is inconsistent with Article 19(1)(a) as
well as Section 4 of the Telegraph Act. If Section 4(1) is construed as
' conferring or a(firming such monopoly, it is void and unconstitutional may
fall foul
of Article 19(1)(a). The first proviso to
Section 4(1) is bad for the
H added reason that it or the Act does not furnish may guidance in the matter
t
(
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL (B.P. JEEV AN REDDY, J.] 1151
or exercise of discretion conferred upon the Central Government there- A
under. The organiser of the game is free to choose such agency as he thinks
appropriate for telecasting and broadcasting the game -whether domestic
or foreign-and if the organiser asks for a licence under the proviso to
Section 4(1) for importing and operating the earth station or other equip
ment for the purpose, it must be granted. No conditions can be placed B
while granting such permits except collection of technical fees. This in
substance is the contention. It must be said at once that this may indeed
be the first decision in this country, when such an argument
is being
addressed, though such arguments were raised in certain European courts
and the European Court of Human
~ights, with varying results as we shall
indicate in a little while.
C
. There may be no difficulty in agreeing that a game or cricket like any
other sports event provides entertainment -and entertainment
is a facet, a
part, of free speech.
See Burstyn v. Wilson, 96 L.Ed. (1098), subject to the
caveat that where speech and conduct are joined in a single course of D
action, the free speech values must be balanced against competing societal
interests.
Los Angeles v. Preferred Communications (1986) - 476
U.S. 488
= 90 L. Ed. 2d. 480. It attracts a large audience. But the question is
whether the organiser of the event can say that his freedom of expression
takes in the right to telecast it from the Indian soil without any restrictions
or regulations. The argument really means this, 'I have a right to propagate E
my expression, viz., the game, by such
means as I think appropriate, I may
choose to have a television station of my own or I may invite a foreign
agency to do t~e job. Whatever .I wish, the State must provide to enable
me to propagate my game. I may make money in the process but that is
immaterial'. In effect, this is an assertion of an absolute and unrestricted F
right to establish private radio and television stations, . since there is no
distinction in principle between having a mobile earth Station (which
beams its programmes to a satellite via VSNL or directly to another
satellite which in turn beams it back to earth)
and a
statimrary television
station. Similarly,· there is no distinction in law between a permanent
telecasting facility and a facility for a given occasion. Question
is, is such G
a stand acceptable within the framework of our Constitution? (The ques-
tion relating to interpretation of
Section 4(1), I will deal with it separately.)
I
may clarify that I am concerned herein with 'live telecast' which requires
the telecast equipment to be placed at or near the field where the event
is
taking place, i.e., telecasting from the Indian territory. This clarification is H
.
' :--..
1152 ' . SUPREME COURT REPORTS (1995) 1 S.C.R.
.
. A appended in view of the_ contention urged that nothing prevents the or-
ganises -
or for that matter, anybody
-from video recording the event and
then take the video cassette out" of this country and telecast it from outside
stations. Undoubtedly, they can
do so.
Only thing is that il will not be a
live telecast and
it would also
niit be a telecast from the Indian soil.
Article 19(1)(a) declares that all citizens shall have the right of
freedom.of sp~~ch and eXjire5sion.-Clause (2) of Article:19, at the same
time, provides
that nothing in sub-clause (i) of clause (1) shall effect the
operation of any
eri<ting law or prevent the Stale from making any law,
insofar a• such law imposes reasonable restrictions on the· eXercise of the
C right' conferred by the· said sub-clause in the interests of ihe sovereignty
and integrity of India, the security of the State, friendly relations with the
foreign States, public order, decency
or. morality or in relation to
contempt
of court, defamation or incitement of an offence. The grounds upon which · ·
reasonable restrictions can be placed upon the freedom of speech and
D · expression are designed firstly to ensure that the said right is not exercised
in such a manner as to threaten the sovereignty and integrity of India,
security of the State, friendly relations with the foreign States, public order,
decency
or morality. Similarly, the said right cannot be so exercised as to
. : amount to . contempt of court, defamation
or· incitement of an offence.
Existing laws providing such restrictions are saved and the State is free to
E make laws in future imposing such restrictioDs. The grounds afcirCsaid are
. conceived in the interest of ensuring and maintaining conditions in which
the said _right can meaningfully and peacefully be exercised by the citizens
of this country.
F The freedom of speech and expression is a right gi~n to every citizen
of this country and not merely to a few. No one can exercised his right of
· speech in such a manner as to violate another man's right of speech. One
, man's right to· speak ends where the other man's right to speak begins.
:·Indeed it may be the duty of the State to ensure that this right is available
to all in equal measure and that i.t is not hijacked by a few to the detriment
· · G · of the resL This obligation flows from the preamble to our Constitution,
. . which seekSt~ secure to all its citizens liberty of thought, expression, belief
and worship." State being a product of the Constitution is as much com
mitted to this goal as any citizen of this country . Indeed, this obligation
also flows from the injunction in Article 14 that 'the State shall not deny
H
to
any person equ3lity before ihe law' and the direction in Article 38(2) to
c : •
•
(
MIN. OF INFORMATION AND BRO~G v. CRICKET ASSN. OF BENGAL [B.P. JEEVAN REDDY, J.) 1153
I , 11
the effect: "the State, shall, in particular -endeavour to eliminate ine- A
q·ualities in status, facilities ~nd opportunities, not only amongst individuals
but also amongst groups of people ....... " Under our Constitutional scheme,
the State
is not
merely under an obligation to respect the fund;;imental
rights guaranteed by Part-III but under an equal obligation to ensure
conditions
in which those rights can be meaningfully and effectively enjoyed
by one and all.
·
,,
The fundamental significance of this freedom has been stressed by
this Court in a large number of decisions and it is unnecessary to burden
this judgment with those decisions. Freedom of speech and expression, it
B
has been held repeatedly, is basic to and indivisible from a democratic C
polity. It encompasses freedom of
press. It includes right to impart and
receive information. The question now in issue
is: does it include the
freedom to broadcast and telecast one's
views, ideas and opinions and
whether, if
one wishes to do so, is the State bound to provide all necessary
licences, permits and facilities therefor?
This requires an examination of the
history of broadcasting and telecasting in the country as well
as in certain D
leading democracies in the world. In this judgment, the expression "broad
casting media" wherever used denotes the electronic media of radio and
television now operated
by AIR and Doordarshan -and not any other
radio{fV services.
•INDIA:·
Though several countries have enacted laws on the subject of broad
casting, India has not. The Indian Telegraph Act, enacted in
1885 (as
amended from time to time) is the only enactment relevant in this behalf.
Clause (1) of Section 3 defines the expression "telegraph" in the following
words:
E
F ''"Telegraph" means any appliance," iD.strument, material or ap
paratus used or capable of use for transmission or reception of
signs, signals, writing, images
ru;id sounds or intelligence of any G
nature by wire, visual or other electro-magnetic emissions, Radio
waves or Hertzian w,ave.s, galyanic, electric or magnetic means.
Explanation. --"Radio waves" or "Hertzian w&ves" M~ns electro
magnetic
waves or frequencies
lmyer thfW: 3,000. giga cycles p~r
sec.o~t+ prp~aga~~d in. _sp~~ ~th9~i ~#!iq~_.~i<Je.:· , _ . tt
1154 SUPREME COURT REPORTS (1995) 1 S.C.R.
A Sub-section (1) of Section 4 which occurs in Part-II entitled
"Privileges and Powers of the Government" confers the exclusive privilege
of establishing, maintaining and working telegraphs
in India upon the
Central Government. At the same time,
.the first proviso to sub-section
empowers the Central Government itself to grant a licence on such condi-·
B tions and in consideration of such payments as it thinks fit, to establish,
maintain
or work a telegraph within any part of India.
Section 4 may be
set out for ready reference :
"4. (1) Within India the Central Government shall have the ex
clusive privilege of establishing, maintaining and working
C telegraphs:
D
Provided that the Central Government may grant a licence, on
such eonditions and in consideration of such payments as it thinks
fit, to any person to establish, maintain or work a telegraph within
any part of India :
Provided further that the Central Government
may, by rules
made under this Act and published
in the Official Gazette, permit,
subject to such restrictions and conditions as it thinks
fit. the
establishment, maintenance and working
--
E (a) of wireless telegraphs on ships within Indian territorial waters
and on aircraft within
or above India, or India territorial waters,
and
F
G
(b) of telegraphs other than wireless telegraphs within any part of
India.
.
(2) The Central Government may, by notification in the Official
Gazette, delegate to the telegraph authority all or any of its powers
under the first proviso to sub-section (1).
The exercise by the telegraph authority of any power so
delegated shall be subject to such restrictions and conditions the
Central Government
may, by the notification, think fit to impose".
The arguments before us have proceeded on the footing that the
radio broadcasting and telecasting fall within the definition of "telegraph",
H which means that according to
Section 4, the Central Government has the
MIN. OF INFORMATION AND BROADCASJ'INGv. CRICKET ASSN. OF BENGAL [B.P. JEF.VAN REDDY, J.Jl155
exclusive privilege and right of establishing, maintaining and working the. A
radio and television stations and/or other equipment meant for the said
purpose. The power to grant licence to a third party for a similar purpose
is also vested in the Central Government itself -the monopoly. -holder.
The first proviso says that the Central Government may grant such
-a
licence and if it chooses to grant, it can impose such conditions and B
stipulate such payments therefore as it thinks fit. The section is absolute in
terms and as rightly pointed out by the petitioners' counsel,
it does not
provide any guidance in the matter
of grant of licence, viz., in which matters
the Central Government shall grant the licence and in which matters
refuse. The provision must, however, be understood in the context
of and
having regard to the times in which it was enacted.
C
In Life Insurance Corporation of India etc. v. Manubhai D. Shah,
[1992] 3
S.C.C. 637, Ahmadi, J. (as the learned Chief Justice then was) held
that the refusal
of Doordarshan to telecast a film
"Beyond Genocide" on
Bhopal gas disaster (which film was certified by censors and had also D
received the Golden Lotus Award) on the ground of lacking moderation,
restraint fairness and balance
is bad. The court noted that while the
Doordarshan conceded that the
film depicted the events faithfully, it failed
to point out in what respects is lacked in moderation etc. Merely because
it was critical
of government, it was held, Doordarshan cannot refuse to
telecast it. It was pointed out pertinently that the refusal to telecast was
E
not based upon the ground that the list of award-winning films was long
and that having regard to inter se priorities among them, it was not possible
to telecast the
film or that the film was not consistent with the accepted
norms evolved by Doordarshan.
In this connection, the learned
Ju,dge,
speaking for the Bench, observed : F
''The words "freedom of speech and expression" must, therefore,
be broadly construed to include the freedom to circulate o~e's
views by words of mouth or in writing or thr-cmgh audio-visual
instrumentalities.
It, therefore, includes the right to propagate one's G
views through the print media or through any other communication
channel e.g. the radio
and the television. Every citizen of this free
country the ref ore, has the right to air his or her views through the
printing and/or the electronic media subject of course to pennissible
restrictions imposed under Article 19(2) of the Constitution. The print
media, the radio and the tiny screen play the ro!e of public educators, H
' ·---=-·-,.
1156 . SUPREMECOURTREPO~TS. (1995] 1 S.C.R.
A
·,
B
c/
D
F
H
'
so vital to be growth of a healthy democracy. Freedom to air one's
views
is the life line of any
democr~tic institution and any attempt
. to stifle, suffocate or gag this right would sound a death-biell to
democracy and_ w~uld help usher in' autocracy or dictatorship. It
. . cannot be gainsaid that modern communication mediums advance
, public interest by informing the public of the events and develop
ments that have taken place
and thereby educating the voters, a .-· role considered significant for the vibrant functioning of a
de~ocracy. Therefore, in any.set-up, more so in' a demo_cratic
set-up like ours, dissemination of news and views for popular
consumption is a must
and any attempt to deny the same must be
frowned upon unless it falls within the mischief of Article 19(2) of
the Constitution. It
follow5 that a citizen for propagation of his or
her ideas has a right to P,,blish for circulation his 'views in periodicals,
· magiizines and journals or through the electTonic media since it is
well known
that these communication channels are great purveyors .. of news and views and make considerable impact on the minds of
the readers and viewers and are known to mould public opinion
on vital issues of national importance. One it is conceded, and it
. cannot indeed be disputed, that freedom of speech and expression
includes freedom
of circulation and
propagation of ideas, there
·can be no doubt that the right extends to the citizen being per
mitted
to use the media to answer the criticism levelled against the
view propagated by
him_ Every free citizen has an undoubted right
to lay what sentiments he pleases before the publici to forbid this,
except
to the extent permitted by Article 19(2), would be an inroad
on
_his freedom. This freedom mus4 however, be exercised with
cirr:umspection and care must be taken not to trench on the rights of
other citizens or to jeopardise public interest. It is manifest from
Article 19(2)
that the right conferred by Article 19(1)(a) is subject to imposition of reasonable restrictions in the interest of, amongst
others, public order, decency
or morality or in relation to defama
tion
or mcitement to an offence. It is, therefore,
obVious that
'subject to reasonable restrictions-placed under Article 19(2) a
---~·Citizen has a right to publish, circulate _and disseminate his views ·
' ' and any attempt to thwart or deny the same would offend Article
... 19(i)(a).'
(Emphasis added)
f
"
MIN. OF INFORMATION AND BROADCASTINGv. CRICKET ASSN. OF BENGAL [B.P. JEEV AN REDDY, J.] 1157
Similarly, it was held in Odyssey Communications Pvt. Ltd. v. Lok-A
vidayan Saghatana & Ors., [1988] Suppl. 1 S.C.R. 486:
"It can no longer be disputed that the .right of a citizen to exhibit
films on the Doordarshan subject to the terms and conditions to
be imposed
by the Doordarshan is a part of the fundamental right
of freedom of expression guaranteed under Article
19(1)( a) of the
Constitution of India which can be curtailed only under cir
cumstances which are set out in clause (2) of Article
19 of the
Constitution of India. The right
is similar to the right of a citizen
to publish his
views through any other media such as news papers,
magazines, advertisement hoardings etc. subject to the terms and
conditions of the owners of the media. We hasten to add that what
we have observed here does not mean that a citizen has a fun-
. damental right to establish a private broadcasting stations, or
television centre.
On this question, we reserve our opinion. It has
B
c
to be decided in any appropriate case." D
The Court held that since the Union of India and Doordarshan have failed
to produce any material to show that "the exhibition of the serial was prima
facie prejudicial to community", the refusal cannot be sustained.
Be that as it
may, virtue of Section 4, radio and television have E
remained a monopoly of the Central Government. Though in the year
1990,
Parliament enacted the 'Prasar Bharati (Broadcasting Corporation of
India) Act, 1990, it never came into force because the Central Government
did not choose to issue a notification appointing the date (from which the
Act shall come into force) as contemplated
by
Section 1(3) of the said F
Act. Be that as it may, Government monopoly over broadcasting media is
nothing unusual and it is not solely because of the fact that India was not
an independent country, or a democracy, until
1947-50. Even in will
established democracies, the position has been the same, to start with, as
would be evident from a brief resume of the broadcasting history in those
countries which
we may now proceed to
er.amine. It would help us under-G
stand how the freedom of speech and expression is understood in various
democracies with reference to and in the context of right to broadcast and
telecast -compendiously referred to hereinafter
as broadcasting.
Broadcasting Law in other Countries : H
1158 SUPREME COURT REPORTS [1995) 1 S.C.R.
A The history
of broadcasting in
United States and other European
countries has been basically different, perhaps becauSe of ~istorical factors
besides constitutional principles.
in the
United States, Courts have
regarded freedom of speech almost entirely as a liberty against the State,
while the Constitutional courts in Europe have looked upon it has a value
which
may sometimes compel the Government to act to ensure the right.
B Constitutions of most of the countries in western Europe, e.g., Germany,
Italy and
France are of post-World War-II vintage whereas the First
Amendment to the United States Constitution is more than 200 years old.
These modern European Constitutions cast an obligation upon their
government to promote broadcasting freedom and not merely to refrain
C from interfering with it. The Constitution of Germany expressly refers to
the right to broadcast as part of freedom
of speech and expression. So far
·as the
United King~om is concerned, the development there has to be
understood in the context of its peculiar constitutional history coupled with
the fact that it has no written constitution. Even so, freedom of thought
D and expression has been an abiding faith with that nation. It has been a
refuge for non-conformists and radical thinkers all over the world - a fact
which does not heg any proof. And yet broadcasting in all these countries
was a State or a public monopoly to start with., Only much later have these
countrie~ started licencing private broadcasting stations. The main catalyst
for this development has been Article 10 of the European Convention on
E Human Rights which guarantees freedom of expression to all the citizens
of the member countries and refers specifically to radio and television. It
says: ·
"10(1) Everyone has the right to freedom of expression. This right
F shall include freedom to hold opinions and to receive and impart
information and ideas without interference by public authority and
regardless of frontiers. This Article shall not prevent States from
requiring the licensing of broadcasting, television
or cinema
enterprises.
G
·.H
(2) The exercise of these freedoms, since it carries with it duties
and responsibilities, conditions, restrictions
or penalties as are
prescribed by law and are necessary in a democratic society,
in the
interests
of national security,territorial integrity or public safety,
for the prevention of disorder or crime, for the protection of health
or morals, for the protection of the reputation
or rights of others,
I
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [B.P. JEEV AN REDDY, J.J 1159 .
for preventing the disclosure of information received in confidence·, A
or for maintaining the authority and imp(tiality of the Judiciary.," ··•
(Emphasis added)
More about this provision later.
In the United States, of course radio and television have been
operated
by private undertakings from the very beginning. As pointed out
by the
United States Supreme Court in Columbia Broadcasting System v.
Democratic National Committee, [1973] 412 U.S. 94 -36 L.Ed. 2d. m, at
the advent
of the radio, the government had a choice either to opt for
government monopoly or government control and that
it chose the latter.
The role
of the government has been described as one of an "overseer" and
that. of the licencee as a "public trustee". The position obtaining
in. each
country may now be noted briefly.
UN(TED KINGDOM •:
B
c
D
The first licence to operate eight radio stations was granted to British
Broadcasting Company (BBC) in
1992. In 1927 British Broadcasting
Com
pany was replaced by British Broadcasting Corporation. The Sykes Com
mittee, appointed in 1920s, considered the overall state .control of radio
essential
in view of its influence on public opinion but rejected operation E
of the medium by the
State. The othet committee appointed in 1920s, viz.,
Crawford Committee, also recommended that radio should remain a public
monopoly in contra-distinction to the United states system of 'free and
uncontrolled ttansmission'.
It however, recommended that the government
company should
be reorganised as a commission either under a statute or
F
as a public company limited by guarantee. In 1927, a Royal Charter was
granted with a view to ensure the independence of BBC, which charter has
been renewed from time to time. It prohibits the BBC from expressing its
own opinion on current
political and social issues and from receiving
revenue from adv.ertisment or commercial sponsorship. The power to
give
directions is reserved to the government. In 1935, the Corporation was G
This part of the judgment dealing with the broadcasting law obtaining in United
kingdom and other European countries
is drawn largely from the Book
"Broadr.asting
Law • A Comparative Study" (1993 Edition) by Eric Barcndt, Goodman Professor of
Media Law, University College, London and his article "The influence of the German
and Italian Constitutional courts on their National Broadcasting Systems• published in
'Public Law, Spring 1991'. H
1160 SUPREME COURT REPORTS {1995] 1 S.C.R.
A liccnccd by the Post-Master General to provide a public television service,
which
was introduced in the following year. The monopoly of BBC continued till 1954. In that year, the British Parliament enacted the Television
Act,
1954 establishing the Independent Television Authority (IT A) to
provide television broadcasting services additional to those of the
BBC.
B The function of the Authority was to enter into contracts with programme
companies for the broadcast of commercial programmes. In
1972, IT A was
re-designated as Independent Broadcasting Authority (IBA). In
1984, IBA
acquired powers in respect of direct broadcasting
by satellite.
The Peacock Committee appointed in
1980s to examine the question
C whether BBC should be compelled to take advertising, rejected the idea
but advocated de-regulation of radio and television. The government ac
cepted the proposal and, accordingly, the Parliament enacted the Broad
casting Act, 1990. Section 1 established the Independent Television
Commission (ITC) with effect from January
1, 1991 in the place of IBA
D and regulate non-BBC Television services including and the Cable
Authority. The ITC
is vested with the power to licence channels 3 and 4
and the proposed channel 5 besides cable and satellite services. Section 2
requires that the ITC discharge its functions in the manner
it" considers
best to ensure a wide range
of
TV programme services and also to ensure
that the programmes are of high quality and cater to a variety of tastes and
E interests. In 1991, ITV decided to grant 16 new channels 3 licences to
private bodies with effect from January
1, 1993. The allocation was to be
made
by calling for tenders -the highest bidder getting it -subject, of
course, to the bidder satisfying the qualifying criteria. The eligibility criteria
prescribed guards against granting licences to non-EEC nationals, political
bodies, religious bodies and advertising agencies. It also guards against
F concentration of these licences in the hands of few individuals or bodies.
Section 6 and 7 impose strict programme controls on the licencees while
Sections 8 and 9 regulate the advertisements. The programme controls
include political impartiality, eschewing of excessive violence, due regard
for decency and good taste among others. The programmes should not also
G offend religious feeling of any community. Section
10 provides for govern
ment control over licenced services. Section
11 provides for monitoring by
ITC of the programmes broadcast
by licenced services.
It is obvious that
this Act has no application to BBC, which is governed by the Royal
Charter, as stated hereinabove. The Act has also set up a Radio Authority
to exercise comparable powers over radio services.
It is said that this Act
H ultimately imposed as many restraints on broadcasters' freedom as there
I
MIN.OF INFORMATION ANDBROAIJCASilNGv. CRICKET ASSN. OF BENGAL[B.P. JEEVAN REDDY, J.]1161
were in force earlier.
FRANCE:
Para 11 of the Declaration of the Rights of Man adopted by the
National Assembly
in 1789* -affirmed in the preamble to the Constitution
of the Fifth Republic (1958) and treated
as binding on all branches of the
government
-guarantees freedom of dissemination of thought and opinion.
This provision -the child of the Franch Revolution -has greatly influenced
the development of broadcasting freedom in that country. Initially, licences
were granted to private radio stations to function along side the public
network but with the out-break
ofthe World-War II, the licences of private
broadcasters were suspended and later revoked. From
1945 to 1982, broad
casting remained a State monopoly. The government exercised tight control
over the radio. An ordinance issued in
1959 legalised government control.
A
B
c
In 1964, public monopoly was re-affirmed by law. In 1974, the State
organisation,
Office de la radiodiffusion-television Francaise (ORTF) was D
divided into seven separate institutions catering to radio and television
broadcasts in the country. This was done with a
view to introduce competi-
tion among the public television companies. The government exercised a
significant degree of control over all these units. No private broadcasting
was allowed since broadcasting services were regarded as essentially
public.
The State monopoly in the matter of broadcasting was upheld by E
Conseil constitutionnel (Constitutional Court) in 1978. In 1982, however, a
significant change took place. The
State recognised the right of citizens to
have a "free and pluralist broadcasting system". Even so, permission to
institute a private broadcasting station was dependent on prior authoriza-
tion of the Government. This provision was upheld by the Counseil Con
stitutionnel as compatible with Para 11 of the Declaration of the Rights of
Man. In 1985, the law was amended providing for private broadcasting and
televisions stations.
In 1986, the government sought to privatise one of the
public television channels which immediately provoked controversy. The
Conseil Constitutionnel ruled (in
1986) that principle of pluralism of opinion
F
Para 11 reads : "XI. The unrestrained communication of thoughts and opinions being G
one of the most precious rights o' nwn, every citizen may speak, write and publish
freely, provided he is responsible for !he abuse of this liberty in cases determined by
law." At the same time, Para 4 sets out the limitation implicit in all freedoms comprised
in the concept
of political
liberty. It says : " ........ The exercise of the natural rights of
every man has no other limits than those which are necessary to secure to every other
man the free exercise of the same rights; and these limits are determinable only by the
1aw: . . H
1162 SUPREME COURT REPORTS {1995] 1 S.C.R.
·A was one of constitutional significance, against which the concrete provisions
of the proposed Bill niust be assessed. It observed that access to a variety of
views was necessary for the effective guarantee of the freedom of speech
protected by the Declaration of the Rights.of Man. At the same time, it found
nothing wrong with the decision to favour private television but held that
it
was for the
Parliament to determine the appropriate.structure for broad-
B casting in the light of freedom of communication and other relevant
constitutional values, like public order, rights
of other citizens and
pluralism of opinion. The law
was accordingly amended. Wherever private
broadcasting
is allowed it is governed by a contract between the applicant
and the administrative authority.
c
GERMANY:
After the occupying authorities withdrew from West Germany in
1949, the pattern that emerged was one of nine regional public broadcast-
D ing organisations. They formed into an association, the
Ar
heitsgemeinschaft der offentlich-techtlichen Rundfunkanstalten der
Bundersrepublik Deutschland (ARD), in 1950 and under its auspices the
first public television channel was formed. Article
5 of the Basic Law of
1949 states, " (E) very one shall have the right freely to express and
disseminate
his opinion by speech, writing, and pictures and freely to
E inform himself from generally accessible sources. Freedom of the press and
freedom
of reporting by means of broadcast and films are guaranteed.
·
There shall be no censorship." In a decision rendered in 1961, the Federal
Constitutional Court held
inter alia that in view of the shortage of
frequen
cies and the heavy cost involved in establishing a TV station, public
F broadcasting monopoly is justifiable, though not constitutionally man
datory. It held further that broadcasting, whether public or private, should
not be dominated by State or by commercial forces and should be open
1
'
for the transmission of a wide variety of opinion. (12 BVerfGE 205-196).
· There was a long battle before private commercial broadcasting was intro-·
duced. Many of the States in West Germany were opposed to private
G commercial broadcasting. The Constitutiorull Coult TUled in 1981 (The Third
Television Case -57 BVerfGE 295) that priwlte broadcasting was not incon
sistent
with Article 5 of the Basic Law but it
oblm'ed that unlink the press,
private broadcasting should not be left to 1'lllrlr.d /on:es in the interest of
ensuring that a wide variety of voices enjoy access to it. It recogni&'Cd that .
H the regulation of private broadcasting Can be different in content from the
-
MIN. OPINPORMATION AND BROADCASl'INGv. CRICKET ASSN. OP BENGAL [B.P. Jl!EV AN Rl!DDY,'J.)1163
regulation applying to public broadcasting. In course of time, private A
television companies came into existenee but in the beginning they were
confmed to cable.
In the Fourth Television Case decided in 1986 (73)
.BVerfGE 118), the court held in the present circumstances, the principal
public service functions of broadcastings are the responsibility of the
public
institutions whereas private broadcasters may be subjected to less onerous B
programme restrictions. Only after the decision of the Constitutional Court
in
1987 were the private companies allocated terrestrial frequencies. It
appears that notwithstanding the establishment of private companies, it
is
the public broadcasting companies which dominate the scene and attract
more advertisement revenue. The German constitutional court has
exer
cised enormous influence in shaping the contours of broadcasting law. It C
has interpreted the broadcasting freedom in a manner wholly different
from the United States Supreme Court casting an obligation upon the State
to ·act to ensure the right to all citizens.
ITALY:
In Italy too, the broadcasting was under State control, to start with.
In 1944, Radio audizioni Italia (RAI) was created having a monopoly
broadcasting.
It still holds the concession for public radio and broadcast-
D
ing. Article 21(1} of the Italian Constitution, 1947 provides that "Everyone
_.
has the right to express himself freely verbally, in writing, and by any other E
means". This provision was relied upon by potential private broadcasters
in support of their claim for setting up private commercial stations.
In a
decision rendered in
1960 (Decision 59/60 (1960} Giuispruenza Con
stituzionale 759) the Constitutional Court of Italy upheld RAl's monQpOly
with reference to Article 43 of the Constitution which enables legislation F
to reserve (or expropriate subject to compensation) for the State, busi
nesses which are concerned with vital public service or are natural monop
olies and which are of pre-eminent public interest. It denied the right of
applicants to establish private radio or television stations.
It opined that
private broadcasting would inevitably be dominated by a few corporations G
and, there/ ore, not in public interest, an aspect which was re-affirmed in a
decision in 1974. (Decision 225n4 (1974) Giurisprudenza Constituzionale
1 n5).
It held that broadcasting provides an essential service in a democratic
society and could ligitimately be reserved for a public institution, provided
certain conditions were met. In particular, it said that radio and television
should be put under parliamentary, and not executive control to ensure their H
1164 SUPREME COURT REPORTS [1995] 1 S.C.R.
A independence and that rules should be drawn up to guarantee the access of
significant political and social groups. Accordingly, the Parliament enacted
the Legge in April, 1975, which provided for a greater control by a Par
liamentary Commission over the programmes and their content. In 1976,
the Constitutional Court ruled (Decision 202/76 (1976) Giurisprudenza
Constituzionale
1276) that while at the national level, the monopoly of RAI
B is valid, at the local level, it is not, since at the local level there is no danger
of private monopolies or oligopolies emerging - a hope belied
by sub
sequent developments. This ambiguous decision resulted in establishment
of a large number of private radio stations
in Italy notwithstanding the
re-affirmation of RAl's national monopoly in
1981 by the court.
One of the
C major -rather the largest -private television and radio networks which thus
came illto existence is the $7 billion Finivest Company, controlled by Silvio
Berlusconi (the Ex-Prime Minister of Italy, who resigned in December,
1994). It
owns three major TV networks in Italy. This development
prompted the Constitutional Court, in
1988, to call for a prompt and
D comprehensive regulation of private broadcasting containing adequate
anti-trust and other anti-monopolistic provisions to safeguard pluralism.
Accordingly, a
law was made in
1990 which devised a system for licensing
private radio and television stations.
E
AUSTRIA:
Broadcasting has been under public control in Austria throughout.
This monopoly
was challenged as inconsistent with Article
10 of the
European Convention before the Austrian Constitutional Court which
repelled the attack with reference to clause (2) of Article 10. It held that
p inasmuch as a law made by the State, viz., Constitutional Broadcasting
Law had introduced a Iicencing system within the meaning of the last
sentence
in Article
10(1) of the Convention and since the said system was
intended to secure objectivity and diversity of opinions, no further need be
done. It held that the Austrian Broadcasting Corporation with the status
of an autonomous public law corporation
is a sufficient compliance not
G only with the national laws but also with Article
10 of the Convention and
that granting licence to every applicant would defeat the objectives of
pluralism, diversity of
views and range of opinions underlying the said
Austrian
law. Several individuals and organisations, who were refused
television/radio licences, lodged complaints
with the European Human
H Rights Commission, which referred the matter
f0r the opinion of the
t
.. >
MIN. OF INFORMATION AND BROADCASflNGv. CRICKET ASSN. OF BENGAL [B.P. JEEVAN REDDY, J.J 1165
European Human Rights Court (EHRC) (at Starsbourg). The Court held A
that the refusal to consider the applications for licence amounted to a
violation of Article 10 (Informationsverein Lentia & Ors. v. Austria - 15
Human rights law Journal 31-judgment dated 24th November, 1993.) The
reasoning of the Court
is to be found in paragraphs 38 and 39 which read
thus:
B "38. The Court has frequently stressed the fundamental role of
freedom of expression
in a democratic society, in particular where,
through the press, it serves to impart information and ideas of
general interest, which the public
is moreover entitled to receive
(see, for example,
mutatis mutandis, the
Observer and Guardian C
v. The United Ki.ngdom judgment of 26 November 1991, Series A
no.
216, pp.
29-30, $59 -13 HRU 16 (1992)). Such an undertaking
cannot be successfully accomplished unless it
is grounded in the
principle of pluralism,
of which the State is the ultimate guarantor.
This observation
is especially valid in relation to audio-visual
media, whose programmes are often broadcast very
widely. D
39.
Of all the means of ensuring that these values are respected, a
public monopoly
is the one which imposes the greatest restrictions
on the freedom of expression, namely the total impossibility of
broadcasting otherwise than through
" national station and, in E
some cases, to a very limited extent through a local cable station.
The far reaching character
of such
restricti~ms m~ans that they can
only be justified where they correspond to a pressing need.
As a result of the technical progress made over the last decades,
justification of these restrictions can no longer today be found in
F
consideration relating to the number of frequencies and channels
available; the Government accepted this. Secondly, for the pur
poses of the present case they have lost much of their raison d'etre
in
view of the multiplication of foreign programmes aimed at
Austrian audiences and the decision of the Administrative Court
G
to recognise the lawfulness of their retransmission by cable (see
paragraph
21 above). Finally and above all, it cannot be argued
that there are no equivalent less restrictive solutions; it
is sufficient
by
way of example to cite the practice of certain countries which
either issue licences subject to specified conditions
of variable
content or make provision for forms of private participation in the
H
1166 SUPREME COURT REPORTS (1995) 1 S.C.R.
A activities of the national corporation."
B
c
D
The Court then dealt with the· argument that "Austrian market was too
small
.to sustain a sufficient number of stations to avoid regrouping
an~ the
constitution of the private monopolies" and rejected it in the following
words:·
"42. The Court is not persuaded by the Government's argument.
Their assertions are contradicted by the experience of several
European States, of a comparable size of Austria, in which the
coexistence of private and public stations, according to rules which
vary from country to country and accompanied by measures
preventing the development of private monopolies, shows the fears
expressed to
be
groundless."
The .Court fmally concluded;
"43. In short, like the Commission, the Court considers that the
interferences in issue were disproportionate to the
aim pursued
and were, accordingly, not necessary in a democratic society. There
has therefore, been· a violation
of Article
10."
In our opinion, the reasoning of EHRC is unacceptable for various
E reasons which we shall set out at the proper st~e'.
OTHER WESTERN EUROPEAN COUNTRIES:
In Denmark, private broadcasting was permitted by Legislation
enacted in
1985. In Portugal, private broadcasting was allowed only in 1939,
F by amending the Constitution. In Switzerland too, private broadcasting has
been allowed only recently.
Private broadcasting is, however, subject to
strict programme control.
G
UNITED
STATES OF AMERICA:
In the United States, there was no law regulating the establishment
and working
of broadcasting companies till 1927. In that year, Radio Act, 192?_was enacted by Congress creating the Federal Radio Commission with
authority to grant three-year licenc;es to operate radio stations on an
assigned frequency. In the years 1934, the Congress enacted the Federal
H Communications Act. This Act placed the telephone and wireless ~
•
,;
!
MIN.OF INFORMATION AND BROADCASTINGv. CRICKET ASSN. OF BENGAL[B.P • .IEEVAN REDDY, J.)1167
munications under one authority, viz., Federal Communications Commis-A
sion (FCC). The Commission had the authority to assign frequency for
particular areas, to prescribe the nature of the service to be provided for
different types of stations.and
to decide licence applications. The only
guideline issued to the Commission was that it should exercise its powers
keeping in
view the
"public interest, convenience and necessity". It is under B
these guidelines that the FCC evolved the Fairness Doctrine in 1949.
Notwithstanding the First Amendment, the United States Supreme Court
held that the freedom of speech did not entail a right to broadcast without
a licence. It held :
"unlike other modes of expression, radio inherently is not
available to
air Vide N.B.C. v. U.S., 319 US 190 [1943). The Fairness
Doctrine
was approved by the
Supreme Court in red Lion Broadcasting C
Company v. F.C.C., 395 US 367 [1969). The Court observed : "Although
bro.adcasting
is clearly a medium affected by a First Amendment interest, differences in the characterstics of news media justify differences in the
First Amendment Standards applied to them....... "'7iere there are substan
tially more individuals who want to broadcast than there are frequencies to D
allocate, it is idle to posit an unabridgeable First Amendment right to broad-
cast comparable to the right of every individual to speak, write or publish .....
those who are licenced stand no better than those to whom licences are
refused .........
A license permits broadcasting, but the licensee has no con-
stitutional right to
be the one who holds the license
or-to monopolire a
radio frequency to the exclusion of his fellows citizens ...... The people as a . E
whole retain their interest in free speech by radio and their collective right
to have the medium function consistently with the ends and purposes
of
the
Fust Amendment. It is the right of the viewers Q1Jd·listeners, not the right
of the broadcdsters which is p0rarnount. It is the right of the public to receive
suitable access to social, political esthetic moral and other ideas and experien-F
ces which is crucial here ....... " In 1967-70, public broadcasting was estab-
lished on a national basis through the institution of the Corporation for
Public Broadcasting (CPB),
viz., the Public Broadcasting
Service (PBS) for
television and National radio service.
The CPB is funded by appropriations
made by the Congress. In
1978, the
Supreme Court affirmed in F.C.C. v.
National Citizens Committee for Broadcasting, (436 U.S. ns) that: G
"In making (its) licensing decisions between competing applicants,
the Commission has long given "primary significance" to "diver
sification of control of the media of mass communieations." This ~
policy is consistent with the statutory scheme and with the First H
A
B
c
D
1168
SUPREME COURT REPORTS [1995) 1 S.C.R.
Amendment goal of achieving "the widest possible dissemination
of Information from dive.rse and antagonistic Sources."* Petitioners
argue that the regulations ai:e invalid because they seriously restrict
the opportunities for expression ·of both broadcasters and
newspapers. But as we stated in Red Lion, "to deny a station licence
because 'the public interest' requires it 'is not a denial of free
speech'." The regulations are a reasonable means of promoting the
public interest in diversified maS& communications; thus they do
not violate the First Amendment rights of those who
will be denied
broadcast licenses pursuant to them."
It is significant to notice the statement that "to deny a station licence
because 'the public interest' requires it
'is not
a denial of free speech'" - a
holding
to which we shall have occasion to advert to later. Yet another
relevant observation of Burger,
CJ. is to the following effect :
"The
Commission (F.C.C.) was justified in concluding that the public
interest in providing access to market place of"ideas and expressions"
would scarcely be served by a system so heavily weighted in favour
of the financially affluent or those with access to wealth ....... "
(Emphasis added)
E In 1970s, however, it was argued that programming restraints were
contrary to the First
Amendment besides being unproductive and that
broadcasting licencees should enjoy the same rights as newspaper editors
and owners.
In course of time, the Government moved towards
deregula
tion of broadcasting and ultimately in 1987 the Fairness doctrine was
F repealed by FCC. An attempt by Congress to restore the said rule by an
enactment was vetoed by the President.
Having examined the systems containing in the United States and
major west-European countries, Eric Barendt says:
G "These developments illustrate the widely divergent approaches to
broadc~tin~ regulation in the United States and (for the most
part) in ~~urope. This is partly an aspect of the more sceptical
attitude
tu government and to administrative regulation which has
As far back as 1948, the Court held in US. v. Paramount Picturts, (92 L.Ed. 1261) that
H no monopoly can be countenanced in the matter of First Amendment rights. ,.,-,
...
MIN. OF INFORMATION A'lf.> llf:OAD<'ASflNG v. CRICKET ASSN. OF BENGAL (B.P. JEEVAN REDDY, l J 1169
prevailed in the USA, at any rate in the last twenty years. The First A
Amendment has been interpreted as conferring on broadcasters
rights, which have
not been derived from the comparable
pr.ovisions in continental countries. Another explanation is that in.
the
USA private commercial broadcasting enjoyed for a long time
a
de facto monopoly, while in Britain, France, Germany and Italy B
there was a public monopoly. It is interesting that there has been
continuity to
US broadcasting law, which (perhaps sadly) is not
found in these
European jurisdictions. The Federal
Communica
tions Act has remained in force since its passage in 1934, though
it has been
amended on a handful of occasions."
(Eric Barendt: Broadcasting Law -
Page-31)
We may now proceed to examine what does "Broadcasting freedom"
mean and signify?
BROADCASTING FREEDOM : Meaning and content of:
There is little doubt that broadcasting freedom is implicit in the
freedom of speech and expression. The European Court of Human Rights
also
bas taken the view that broadcasting like press is covered by Article
c
D
10 of the Convention guaranteeing the right to freedom of expression. But E
the question is what does broadcasting freedom mean? Broadly speaking,
broadcasting freedom
can be said to have four facets, (a) freedom of the
broadcaster, (b) freedom
of the listeners/viewers to a variety of view
and
plurality of opinion, (c) right of the citizens and groups of citizens to have
access
to the broadcasting media, and ( d) the right to establish private radio!fV stations. We shall examine them under separate heads. F
(a) FREEDOM OF THE BROADCASTER :
The first facet of the broadcasting freedom is freedom from State or
Government contro~ in particular from the censorship by the Government.
AS the Peacock Committee put it, pre-publication censorship has no ;)ace G
in a free society. Pre-publication censorship is prohibited in Germany by
Article 5
of the Basic Law. This principle applies in equal measure both
to public and private broadcasting. It is, however, necessary to clarify here
that public broadcasting is not to be equated with
State broadcasting. Both
are distinct. Broadcastir..g freedom in the case of public broadcasting means . H
1170 SUPREME COURT REPORTS [1995] 1 S.C.R.
A the composition of these bodies in a maner so as to genuineJy guarantee
their independence.
In Germany, the ConstitutionaJ Court has ruJed that
freedom from
State controJ requires the legislature to frame some basic
rules to ensure that Government .is unable to exercise any influence over
the selection, conten or scheduling of programmes. Laws providing to the
contrary were held bad. Indeed, the court also enunciated certain
B guidelines for the composition and selection of the independent broadcast
ing authorities on the ground that such a course
is necessary to ensure
freedom from Government control.
It should be noted that an unfettered
freedom for licensees to select which programmes appear on their schedule
to the complete disregard of the interests
of.public appears more like a
· C property right than an attribute of freedom of speech. It is for this reason
that the German constitutional court opined in
1981 (57 BVerfGE 295)
and in 1987
(73 BVerefGE 118) that television and radio is
an instrument
of freedom serving the more fundamental freedom of speech in the interest of
both broadcasters and the public. The court opined that broadcasting
D freedom is to be protected insofar as it's exercise promotes the goals of free
speech, i.e., an infonned democracy and lively discussion of a variety of views.
The freedom of broadcaster cannot be understood as merely an immunity
from government intervention but must be understood as a freedom to
safeguard free speech right of
aJJ the people without being dominated
either
by the
State or any co1ilmercial group. This is also the view taken by
E the Italian and French courts.
(b)
USTENERS/VIEWERS RIGHT:
Broadcasting freedom involves and includes the right of the viewers
p and listeners who retain their interest in free speech. It is on this basis that
the European courts have taken the
view that
restraints on freedom of
broadcasters are justifiable on the very ground on free speech. It has been
held that freedom of expression includes the right to receive information
. and ideas as well as freedom to impart them. "The free speech interests of
viewers and listeners in exposure to a wide variety of materiaJ can best be
G safeguarded by the imposition of programme standards, limiting the
· freedom of radio and television companies. What is important according
to
this perspective is that the broadcasting institutions are free to discharge
their responsibilities of providing the public with a balanced range
of
programmes and a variety of views. These free speech goals
require
H positive legislative provision to prevent the domination of the broadcasting
....
MIN. Of INFORMATION AND BROADCAS11NG v. CRICKET ASSN. OF BENGAL (B.P. JEEV AN REDDY, J.) 1171.
authorities by the government or by private corporations and advertisers, . A
and perhaps for securing impartiality .. : .... ~ .. ".
The Fairness .Doctrine evolve by FCC and approyed by the United .
States Supreme Court in Red Lion protected the interest of persons by
providing a right of reply to personal attacks. But difficulties have arisen
in the matter of enforcing the listeners'/viewers' rights through courts.
B
(c) ACCESS
TO BROADCASTING:
The third facet of broadcasting freedom is the freedom of individuals
and groups of individuals to have access to broadcasting media to express
C
their views. The first argument in support of this theory is that public is
entitled to hear range of opinions held by different groups so that it can
make sensible choices on political and social issues. In particular, these
views should be exposed on television, the most important contemporary
medium. It
is indeed the interest of audience that justified the imposition
of impartiality rules and positive
programme standards upon the broad- D
casters. The theoritical foundation for the claim for access to broadcasting
is that freedom of speech means the freedom to communicate effectively
to a mass audience which means through mass media.
This is also the view
taken by our court as pointed out supra.
An important decision on this aspect
U: that of the United States E
Supreme Court in Columbia Broadcasting System v. Democratic National
Committee, 412 US 94 [1973). The CBS denied to Democrats and a group
campaigning for peace in Vietnam any advertising time to comment upon
contemporary political issues. Its refusal was upheld by the FCC, but the
District of Columbia Circuit Court of Appeals ruled that an absolute ban F
on short pre-paid editorial advertisements infringed the First Amendment
and constituted impermissible discrimination. The Supreme Court, how
ever, allowed the plea of CBS holding that recognition of a right of access
of citizens and groups would be inconsistent with the broadcasters'
freedom. They observed that
if such right were to be recognised, wealthy
individuals and pressure groups would have greater opportunities to pur-
G
chase advertising time. It rejected the "view that every potential speakers is
'the best judge' of what the listening public ought to hear" (Burger, CJ.)
Some
Judges expressed the opinion that the broadcaster enjoyed the same First
Amendment rights
as the newspapers whereas the minority represented by
Brennan and Marshall,
JJ. was of the view that freedom of groups and H
1172 SUPREME COURT REPORTS (1995) 1 S.C.R.
A individuals to effective expression justified recognition of some access
rights to radio and television.
It appears. that this aspect has been debated more intensively in Italy.
The Italian constitutional court held that the monopoly of
RAJ can be
justified only on certain conditions, one of them being that access must be .
B allowed so far as possible to the political, religious and social groups,
representing various strands of opinion in society. It opined that statutory
provision for access
was required by Article 21 of the Constitution guaran
teeing freedom of expression. The Italian courts viewed access
as a
goal or
a policy rather than a matter of fundamental right while at the same time
C protecting the individual's right of reply.
On this aspect, Barendt says:
There are also practical objections to access rights. It may be very difficult to
decide, for example. which group are to be given access, and when and how
often such programmes are shown. There is a danger some groups will be
unduly privileged .... "
D (d) THE RIGHTS TO ESTABLISH PRIVATE BROADCASTING
STATIONS:
The French Broadcasting Laws of 1982 and 1989 limit the right of
citizens to establish private broadcasting stations in the light of the neces
E sity to respect individual rights, to safeguard pluralism of opinion and to
protect public interests such as national security and public order. No • private radio or television channel or station can be established without
prior authorisation from the regulatory body, Conseil superieur
de
l'audiovisuel. In Britain, the ITC and the Radio Authority must grant the
necessary licence for establishing a private television or radio station. In
F none of the
European counttj.es is there an unregulated right to establish
private radio/television station. It
is governed by law. Even in
United States,
it requires a licence from FCC.
Let us examine the position obtaining in Italy and Germany where
constitutional provisions corresponding to Article 19(1)(a) -indeed more
G explicit in the case of Germany -obtain. Notwithstanding Article 21,
referred to hereinbefore, the
Italian Constitutional Court continues to hold
that public monopoly
of broadcasting is justified, at/east at national level till
adequate anti-trust laws are enacted to prevent the development of private media oligopolies. in fact, this principle has been applied in the case of
H local broadcasting and private broadcasting allowed at local level. The
...
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [B.P. JEEV AN REDDY, J.J 1173
Italian Constitutional Court is of the view that Article 21 of the Italian A
Constitution does no doubt confer right to speak freely but this right is to be
exercised by "using means already at one's disposal, not a right to use public
property,. such as the airwaves". The analogy with the right to establish
private schools
was held to be a weak one and rejected by the
Constitu
tional Court. More particularly, it is of the view that it is impossible to justify B
recognition of a right which only a handful of individuals and media com
panies can enjoy in practice.
In Germany too, the Constitutional Court has not recognised a right
in the citizens to establish private teleVision/radio stations at their choice.
The question was left open in what is called the Third Television case. This C
question has, however, lost its significance in view of the laws made in 1980s
permitting private broadcasting. What is relevant is that even after the
enactm~nt of the said laws, the Constitutional Court held in Sixth Television
case (decided in 1991) that establishment of private broadcasting stations is
not a matter of right but a matter for the State (legislature) to decide. If the D
State legislation docs permit such private broadcasting, it has been held
at the same time, it cannot impose onerous programme and advertising
restrictions upon them so as to imperil their existence.
So far as the United States is concerned, where liccncing of private E
broadcasting stations has been in vogue since the very beginning, the
Supreme Court said in
C.B.S. v. Democratic Committee, 36 L.Ed. 2d. 772
[1973) that "(B)ecause the broadcast media utilize a valuable and limited
public resource, there
is also present an unusual order of First Amendment
values".
It then affirmed the holding in Red Lion that "no one has a First
Amendment right to a license or to monopolize a radio frequency;
to deny F
a station license because 'the public interest' requires it 'is not a denial a
denial of free speech"'•. The Court also affirmed that "it is idle to posit an
unabridgeable First Amendment right to broadcast comparable to the right
of every individual to speak, write or publish". It
is relevant to mention here
It is true that reference to
"the public Interest• in the above extract must be understood G
in the light of the guidance provided to P.C.C., which inter alia directs the P.C.C. to
perform its functions consistent with public interest, the fact yet remains that even the
guidance so provided was understood to be within the ambit of First Amendment and
consistent with the free speech right guaranteed by it. It was held in National Broad
casting Company v. United States, (1943) 319 U.S. 190 that the guidance provided to
F.CC. to exercise its powers •as pub!ic convenience, interest or necessity requires" did
not violate the first Amendment.
H
A
B
c
D
E
F
G
1174 SUPREME COURT REPORTS (19'J5) 1 S.C.R.
....
that the distinction made between the Press and the broadcasting meilia
Nis-a-vis the Firs.t Amendment has been justified by the American jwist
Bollinger as based on First Amendment values and not on notions of
expediency. He says that in "permitting different treatment of the two
institutions·
..... (the) Court has imposed a compromise - a compromise,
however, not based on notions of expediency, but rather on a reasoned and
principled accommodation of competing First Amendment Values". (75
Michigan law Review
1, 26-36 (1976) quoted in
"C()nstitutional Law" by
Store, Seidman and others (Second Edition) at 1427-28).
It is true that With the advances in technology the argument of few
or limited number of frequencies has become weak.
Now, it is claimed that
an unlimited number of frequencies are available. We shall assume that it
is so.
Yet the fact remains that airwaves are public property that they are
to be utilised to the greatest public good; that they cannot be allowed to
be monopolised or hijacked by a few privileged persons or groups; that
granting license to everyone who asks for it would reduce the right to
nothing and that such a licensing system would end up in creation of
oligopolies at the experience in Italy has shown -where the limited experi-
ment
of permitting private broadcasting at the local level though not at the
national level, has resulted in creation
of giant media empires and media
magnates, a development not conducive to free speech right of the citizens.
It would be instructive to.note the lament of the United
States Supreme
Court regarding the deleterious effect the emergence of media empires had
on the freedom of Press in that country. In Miami Herald Publishing
Company
v. Tomillo, [1974)418
U.S. 241, the Court said:.
"Access· advocates submit ·that ..... the press of today is in reality
very different from that known in the early years of our national
existence .....
The elimination
of competing newspapers in most of our large
cities· and the concentration of control of media that results from
the only newspaper's being owned by the same interests which own
a television station and a radio station, are important components
of
this trend towards concentration of control of outlets to inform
the public.
The result
of these vast changes has been to place in few hands
th~ power to inform the American people and shape public
I-
t-
_,_
..:
.,
MIN. OF INFORMATION AND BROA.DCASrlNG v. CRICKET ASSN. OF BENGAL [B.P. JEEVAN REDDY, J.] 1175
opinion. Much of the editorial opinion and commentary that a A
printed is that of syndicated columnists distributed nationwide and,
as a result,
we are told, on national and world issues there tends
to
be a homogeneity of editorial opinion, conunentary, and inter
pretive analysis. The abuses of bias and manipulative reportage
are, likewise, said to be the result of the vast accumulations of
B
unreviewable power in the modern media empires. In effect, it is
claimed, the public has lost any ability to respond or to contribute
in a meaningful way to the debate on issues ........ .
The obvious solution, which
was available to dissidents at an
earlier time when entry into publishing
was relatively
inexpen-;ive, C
today would be to have additional newspapers. But the same
economic factors which have caused the disappearance of vast
numbers
of metropolitan newspapers, have made entry into the
market place of ideas served by the print media almost impossible.
It
is urged that the claim of newspapers to be "surrogates for the
public" carries with it a concomitant fiduciary obligation to account
D
for that stewardship. From this premise it is reasoned that the only
effective
way to insure fairness and ·accuracy and to provide for
some accountability
is for government to take affirmative action.
The First Amendment interest of the public in being informed is said
to be in peril because the
"marketplace of ideas" is today a monopoly E
controlled by the owners of the market ...... "
(
(Emphasis added)
Of course, there is another side to this picture: this media giants in United p
States are so powerful that Government cannot always manipulate them -
as was proved in the
Pentagon Papers' case New
York Times v. United States.
[1971] 403 U.S. 713] and in the case of President's Claim of Privilege United
States v. Nixon, (1974] 418 U.S. 683. These considerations -all of them
emphasised
by Constitutional courts of United
States and major west- G
European countries, -furnish valid grounds against reading into Article
19(1)(a) a right
to establish private broadcasting stations, whether per
manent or temporary, stationary
or mobile.
Same holding holds good for
earth stations and other telecasting equipment which the petitioners want
to bring in through their chosen agencies. As explained hereinbefore, there
is no distinction in principle between a regular
TV station and an earth H
1176 SUPREME COURT REPORTS [1995] 1 s.c.R.
A station or other telecasting facility. More about this aspect later.
B
Having notice the judicial wisdom of the Constitutional Courts in
leading democ.racies, we may turn to the issue~ arising herein.
The Nature of grounds specified in Article 19(2) of the Constitution.
A look at the grounds in clause (2) of Ar~icle 19, in the interests of
which a
law can be
made placing reasonable restrictions upon the freedom
of speech and expression goes to show that they are all conceived in the
national interest
as well as in the interest of society. The first set of grounds,
viz., the sovereignty and integrity of India, the security of the State, friendly
C relations with foreign States and public order are grounds referable to
national interest whereas the second set of ground, viz., decency,
morality,
contempt of courts defamation and incitement to offence are conceived in
the interest of society. The inter connection and the inter-dependence
of
freedom of speech and the stability of society is undeniable. They indeed
D contribute to and promote each other. Freedom of speech and expression
in a democracy ensures that the change desired
by the people, whether in
politica~ economic or social sphere, is brought about peacefully and
through
law. That change desired by the people can be brought about in
an orderly, legal and peaceful manner is by itself an assurance of stability
and an insurance against violent upheavals which are the hall-mark of
E societies ruled by dictatorships, which do not permit this freedom. The
stability of,
say, the British nation and the periodic convulsions witnessed
in the dictatorships around the world is ample proof of this truism. The
converse
is equally true. The more stable the society is, the more scope it
provides for exercise of right of free speech and expression.
A· society
F which feels secure can and does permit a greater latitude than a society
whose stability
is in constant peril. As observed by Lord Sumner in
Bow
man v. Secular Society Ltd., [1917] A.C. 406:
G
H
"The words as well as the acts, which tend to endanger society
differ from time to time
in proportion as society is stable or
insecure in fact, or
is believed by its reasonable members to be
open to assault. In the present day meetings or processions are
held lawful which a hundred
and fifty years ago would have been
deemed seditious, and this
is not because the law is weaker or has
changed, but because, the times having changed, society
is stronger
than before
...... After
al~ the question whether a given opinion is
"·
MIN. OF INFORMATION AND BROADCAS!lNG v. CRICKET ASSN. OF BENGAL [B.P. JEEV AN REDDY. J.j 1177
a danger to society is a question of the times and is a question of A
fact. I desire to say nothing that would limit the right of society to
protect itself
by process of iaw
ff:;'Jll the dangers of the movement,
whatev.er that right may be, but only to say that, experience having
proved dangers once thought real to be
now negligible, and
dangers once
very possibly imminent to have now passed away,
there is nothing in the general rules as to blasphemy and ir-
B
religion ...... which prevents us from varying their application to the
particular circumstances of our time in accordance with that
ex-
perience."
It is for this reason that our. founding fathers while guaranteeing
the. C
freedom of speech and expression provided simultaneously that the said
right cannot be so exercised as to endanger the interest of the nation or
the interest of the society,
as the case may be. This is not merely in the
interest of nation and society but equally in the interest of the freedom
of
speech and expression itself, the reason being the mutual relevance and D
inter-dependence aforesaid.
Reference may also be made in this connection to the decision of the
United States Supreme C.burt in F.C.C. v. National Citizens Committee for
Broadcasting, (1978) 436 U.S. 775, referred to hereinbefore, where it has
been held that "to deny a station licence because the public interest E
requires it is not a denial of free speech". It is significant that this was so
said with reference to First Amendment to the United States Constitution
which guarantees the freedom of speech and e~ression in absolute terms.
The reason
is obvious. The right cannot rise above the national interest and
the interest of society which
is but another name for the interest of general
public.
It is true that Article 19(2) does not use the words "national
interest", "interest
of soci.ety" or "public interest" but as pointed
hereinabove, the several grounds mentioned in clause
{2) are ultimately
referable to the interests of the nation and of the society. As observed by
White, l., speaking for the United States Supreme Court, in Red Lion:
"It is the purpose of the First Amendment to preserve an uninhibited
marketplace of ideas in which truth will ultimately prevai~ rather than
to countenance monopolization of that market, whether it be by the
Government itself
or a private licensee. Associated Press v.
United
F
G
. State, 326 US 1, 20, 89 L. Ed. 2013, 2030, 65 S Ct 1416 (1945); New _H
1178
A
B
c
SUPREME COURT REPORTS [1995] 1 S.C.R.
York Times Co. v. Sullivan, 376 US 254, 270, 11 L Ed 2d 686, 700,
84 S Ct 710, 95 ALR2d 1412( 1964); Abrams v. United States, 250
US 616, 630, 63 L Ed. 1173, 1180, 40 S Ct 17 (1919) (Holmes, J.,
Dissenting). "(S)peech concerning public affairs is more than self
expression; it
is the essence of self-government". Garrison v.
Louisiana, 379
US 64, 74-75, 13 L Ed 2d 125, 133, 85 S Ct 209
(1964). See Brennan, _The Supreme Court and the f>1eiklejohn
interpretation of the First Amendment, 79 Harv L Rev 1 (1965).
It is the right of the public to receive suitable access t«;i social,
political,, esthetic, moral, and other ideas and experiences which
is crucial here."
(Emphasis added)
We may have to bear this in mind while delineating the parameters
of this freedom. It would also be appropriate to keep in mind the obser
vations in
Columbia Broadcasting
System v. Democratic National Commit
D tee, 36 L. Ed. 2d 772). Burger, C.J. quoted the words of Prof. Chafee to
the following effect :
"Once we get away from the bare words of the First Amend
ment,
we must construe it as part of a Constitution which creates
E a Government for the purpose of performing several very impor
tant tasks.
The First Amendment should be interpreted so as not to
cripple the regular work
of the government."
We must also bear in mind that-the obligation of the
State to ensure
this right to all the citizens of the country (emphasis hereinbefore) creates
F an obligation upon it to ensure that the broadcasting media is not monop
olised, dominated or hijacked by privileged, rich and powerful interests.
Such monopolisation or domination cannot but be prejudicial to the
freedom
of
speech and expression of the citizens in general -an aspect
repeatedly stressed by the Supreme Court of United States and the Con-
G stitutional Courts of Germany and Italy.
The importance and significance of television in the modem words
needs no emphasis. Most people obtain the bulk of their information on
matters of ·contemporary interest from the broadcasting medium. The
television is unique in the
way in which it intrudes into our homes. The
H combination of picture and voice makes it an irresistably attractive medium
+
·MIN. OF INFORMATION AND BROADCASI1NGv. CRICKET ASSN. OF BENGAL (B.P. JEEV AN REDDY, J.) 1179
of presentation. Call it idiot box or by any other pejorative name. It has a A
tremendous appeal and influence over millions of people. Many of them
are glued to it for hours on end each
day. Television is shaping the food
habits, cultural values, social mores and what not of the society in a manner
/
no other medium has done so far. Younger generation is particularly
addicted to
it. It is a powerful instrument which can be used for greater B
good as also for doing immense harm to the society. It depends upon how
it
is used. With the advance of technology, the number of channels available
has grown enormously. National borders have become meaningless. The
reach of some of the major networks
is international; they are not confined
to one country or one region.
It is no longer possible for any government
to control or manipulate the
news, views and information available to its C
people. In a manner of speaking, the technological revolution is forcing
inter-nationalism upon the word. No nation can remain a fortress or an
island in itself any longer. Without a doubt, this technological revolution
is
presenting new issues, complex in nature-in the words of Burger, C.J.,
"complex problems with many hard questions and few easy answers". D
Broadcasting media by its very nature is different from Press. Airwaves are
public property. The fact that a large number of frequencies/channels are
available does not make them anytheless public property.
It is the obliga-
tion of the State under our constitutional system to ensure that they are
used for public good.
Now, what does this public
g~od niean and signify in the context of
E
the broadcasting medium? In a democracy, people govern themselves and
they cannot govern themselves properly unless· they are aware -aware of
social, political, economic and other issues confronting them. To ena~e
them to make a proper judgment on those issues, they must have the p
benefit of a large of opinions on those issues. Right to receive and impart
information
is implicit in free speech. This plurality of opinions, view and
ideas a indispensable for enabling them to make an informed judgment on
those issues to know what
is their true interest, to make
t~em responsible
citizens, to safeguard their rights as also the interests of society and State.
All the Constitutional courts of leading democracies, reference to which G
has been made here to before, have recognised and reiterated this aspect.
-+ This is also the view of the European Court of Human Rights. In Castells
\'.Spain, (14 EHRR 445), quoted in 1994 Public Law at 524 -the court
held that free political debate
is "at the very core of.the concept of a
democratic society''.
H
A
1180 SUPREME COURT REPORTS [1995) 1 S.C.R.
From the standpoint of Article 19(1)(a), what
is paramount is the
right of the listeners and
·viewers and not the right of the broadcaster
whether the broadcaster
is the State, public corporation or a private
individual or
body. A monopoly over broadcasting, whether by government
or
by anybody else, is inconsistent with the free
speecli right of the citizens.
B State control really means governmental control, which in turn means,
control of the political party or parties in power for the time being. Such
control
is bound
·to colour the views, information and opinions conveyed
by the media. The free speech right of the citizens is better served in
keeping the broadcasting media under the control of public. Control by
public means control by an independent public corporation or corpora-
C tions, as the case may be, formed under a statute. As held by the Constitu
tional Court of Italy, broadcasting provides an essential service in a
democratic society and could legitimately be reserved for a public institu-.
tion, provided certain conditions are met. The corporation (s) must be
constituted and composed in such a manner
as to ensure its independence
D from government and its impartiality on public issues. When presenting or
discussing a public issue, it must
·be ensured that all aspects of it are
presented in a balanced manner, without appearing to espouse any one
point of
view. This will also enhance the credibility of the media to a very
large extent; a controlled media cannot command that level of credibility.
E For the purpose of ensuring the free speech rights of the citizens guaran
teed
by Article 19(1)(a), it is not necessary to have private broadcasting
stations,
as held by the Constitutional Courts of France and Italy. Allowing
"private broadcasting would be to open the door for powerful economic,
commercial and political interests, which may not prove beneficial to free
F
speech right of the citizens -and certainly so, if strict programme controls
and other controls are not prescribed. The analogy with press
is wholly
inapt. Above
all, airwaves constitute public property. While, the freedom
guaranteed by Article 19(1)(a) does include the right to receive and impart
information, no one can claim the fundamental right to do so
by using or
employing public property.
Only where the statute permits him to use the
G public property, then only -and subject to such conditions and restrictions
as the law may impose -he can use the public property, viz., airwaves. In
other words, Article 19(1)(a) does not enable a citizen to impart his
information, views and opinions by using the airwaves. He can do so
without using the airwaves.
It need not be emphasised that while broad-
H casting cannot be effected without using airwaves, receiving the broadcast
+
MIN. 01' INFORMATION AND BROADCASTINGv. CRICKET ASSN. 01' BENGAL [B.P. JEEV AN REDDY, J. J 1181
does not involve any such use. Airwaves, being public property must be A
utilised to advance public good. Public good lies. in ensuring plurality of
....
opinions, viewed and ideas and that would scarcely by served by private
..
broadcasters, who would be and who are bound to be actuated by. profit
motive. There
is a far grater likelihqod of these private broadcasters
indulging in mis-information dis-information and manipulation
of news and
views than the government -controlled media, which is at least subject to
B
public and parliamentary scrutiny. The experience in Italy, where the
Constitutional Court allowed private broadcasting at the local level while
denying it at the national level should serve as a lesson; this limited opening
has given rise to giant media oligopolies as mentioned supra. Even with the
c
best of programme controls it may prove
~unter-productive at the present
juncture of our development; the implementation machinery in our country
leaves much to be desired which
is shown by the ineffectiveness of the
several enactments made with the best of the intentions and with most
laudable provision; this
is a reality which cannot be ignored. It is true that
even
if private broadcasting is not allowed from Indian soil, such stations D
may spring up on the periphery of or outside our territory, catering
exclusively to the Indian public. Indeed, some like stations have already
come into existence. The space, it
is said, is saturated with communication
satellites and that they are providing and are able to provide any number
of channels and frequencies. More technological developments must
be in
E
the offing. But that cannot be a ground for enlarging the scope of Article
19(1)(a). It may
be a factor in favour of allowing private broadcasting -or
it may not be. It may also
be that the
Parliament decides to increase the
number of channels under the.Doordarshan, diversifying them into various
fields, commercial, educational, sports and so on. Or the Parliament may
F
decide to permit private broadcasting, but if it does so permit, it should
not only keep in mind the experience of the countries where such a course
has been permitted but also the conditions in this country and the compul-
sions of technological developments and the realities of situation resulting
from technological developments. We have no doubt
in our mind that it
will so bear in mind the above factors and all other relevant circumstances. G
We make it clear, we are
not concerned with matters of policy but with the
content of Article 19(1)(a) and we say that while public broadcasting is
-+
implicit in it, private broadcasting is not. Matters of policy are for the
Parliament to consider and not for courts. On account of historical factors,
radio and television have remained in the hands of the State exclusively.
H
1182 SUPREME COURT REPORTS [1995) 1 S.C.R.
A Both the networks have been built up over the years with public fuilds .
. They represent the wealth and property of the nation. It may even be said
that they represent the material resources of the community within the
meaning of Article 39(b). They may also be said to be 'facilities' within the
meaning
of Article 38. They must be employed consistent with the above
B articles and consistent with the constitutional policy as adumbrated in the
preamble to the Constitution and
Parts III and IV. We must reiterate that
the press whose freedom is implicit in Article 19(1)(a) stands on a different
footing. The petitioners
1
-
or the potential applicants for private broadcast
ing licenses -cannot invoke the analogy of the press. To repeat,
airwaves
are public property and better remain in public hands in the interest of the
C
very freedom of speech and expression of the citizens of this country.
It would be appropriate at this stage to deal with the reasoning of
the European· Court of Human
1
Rights in the case of lnformationsverein
Lentia. The first thing to be noticed in this behalf is the language of Article
D 10(1) of the European convention, set out hereinbefore. Clause (1) of
Article 10 not only says that everyone has the right to freedom of expres
sion but also
says that the said right
s'1.all include freedom to hold opinions
and to receive and impart information and ideas without interference by
public authority and regardless of frontiers. The clause then adds that Article
10 shall not, however, prevent the State from requiring the licensing of
E broadcasting, television or cinema enterprises. Cl.ause (2) of course is
· almost in pari materia with clause (2) of Article 19 of our Constitution.
What
is, however, significant is that Article
10(1) expressly conferred the
right "to receive and impart information and ideas without interference by
public authority''. The only power given to public authority, which in the
F. context means the State/Government, is to provide the requirement of
license and nothing more. It is this feature of clause (1) which has evidently
iilfluenced the decision of the European court. The decision cannot, there
fore, be read as laying down that the right
of free expression by itself
·
implies and includes the right to establish private broadcasting stations. It
is necessary to emphasise another aspect. While I agree with the statement
G in Para 38 to the effect that freedom of expression is fundamental to a
democratic society and that the said "cannot be successfully accomplished
unless it
is grounded in the principle of pluralism, of which the State is the
ultimate guarantor", I find it difficult to agree that such pluralism cannot
; . be ensured by a public/ statutory corporation of the nature already in
H existence in Austria and that it is necessary to provide for private broad~
..
MIN. OF INFORMATION AND BROAOCASI1NGv. CRICKET ASSN. OF BENGAL [B.P. JEEVAN REDDY, J.J 1183
casting to ensure pluralism, as held in Para 39. The fact that as a result of A
technological advances, the argument of limited number of frequencies is
no longer available, cannot be a ground for reading the right to private
broadcasting into freedom
of expression. The decision as such is coloured
by the particular language of clause (1) of Article
10, as stated above. I
must also say that the last observation in Para 39 viz., that there can be
other less restrictive solutions is also not a ground which we can give effect B
to under the legal system governing us. The question in such cases always _
is whether the particular restriction placed is reasonable and valid and not
whether other less restrictive provisions are possible. I may also mentione
that the arguments which weighed with other constitutional courts,
viz., that
airways represent public property and that they cannot be
. allowed to be C
dominated or monopolised by powerful commercial, economic and politi-
cal interests does not appear to have been argued
or considered by the
European Court.
As has been emphasised by other constitutional courts,
the very free speech interest
of the citizens requires that the broadcasting
media
is not dominated or controlled by such powerful interests.
There is yet another aspect
of the petitioners' claim which requires
D
to be explained. According to their own case, they have sold the telecasting
rights with respect
to their matches to a foreign agency with the under
standing that such foreign agency shall bring in its o~ equipment and
personnel and telecast the mathes from the Indian territory. Once they E
have sold their rights, the foreign agency is not thejr agent but an inde
pendent party. It is a principal by itself. The foreign agency cannot claim
or enforce the right guaranteed by Article 19(1)(a). Petitioners cannot also
claim because they have already sold the rights. In other words, the right
to telecast is no longer with them but· with the foreign firm which has F
purchased the telecasting rights. For this reason too, the petitioners' claim
must
be held to be unacceptable.
Having held that Article 19(1)(a) does not encompass the right to
establish, maintain
or run broadcasting stations or broadcasting facilities,
we feel it necessary to clarify the true purport
of the said freedom in the G
context of broadcasting media. This is necessary to ensure that I am not
misunderstood
or misinterpreted. Indeed, what I propose to say hereafter
flows logically from what I have said heretofore.
It has been held by this Court in Life Insurance Corporation v. H
1184 SUPREME COURT REPORTS [1995] 1 S.C.R.
A Manubhai Shah the freedom of speech and expression guaranteed to the
citizens of this country "includes the right
to propagate
one's views through
print media or through
any other communication channel, e.g., the radio
and the television. Every citizen of this free country, therefore, has the right.
to
ai~ his or her views through the printing and/or the electronic media
subject of course to permissible restrictions imposed under Article 19(2)
B of the Constitution". It has also been held in the said decision that "the
print media, the radio and the tiny screen play the role of public educators,
sd vital to the growth of a healthy democracy. Freedom to air one's views
is the lifeline of any democratic institution and any attempt to stifle,
suffocate or gag this right would sound a death-knell to democracy and
C would help usher in autocracy or dictatorship ...... It follows that a citizen
for propagation of his or her ideas has a right to publish for circulation his
view in periodicals, magazines and journals or t_hrough the electronic media
since it is well known that these communication channels are great pur
veyors of news and
views and make considerable impact on the minds of
D the readers and viewers and are known to mould public opinion on vital
issues of national importance." To the same effect
is the holding in Odyssey
Communications
referred to supra.
Once this is so, it follows that no
monopoly of this media can be conceived for the simple reason that Article
19(2) does not permit State monopoly unlike clause (6) of Article
19
vis-a-vis the right guaranteed by Article 19(1)(g).
E
All the Constitutional Courts whose opinions have been referred to
hereinbefore have taken the uniform
view that in the interest of ensuring
plurality of opinions,
views, ideas and ideologies, the broadcasting media
cannot be allowed to be under the monopoly of one -be it the monopoly
p of Government or an individual, body or organisation. Government control
in effect means the control. of the political party or parties in powers for·
the time being. Such control is bound to colour and in same cases, may
even distort the news,
views opinions expressed through the media. It is
not conducive to free expression of contending viewpoints and opinions
which
is essential for the growth of a healthy democracy. I have said enough
G hereinbefore in support of the above propositions and we do not think it
necessary to repeat the same over again here. I have also mentioned
hereinbefore that for ensuring plurality of
views, opinions and also to
ensure a fair and balanced
presentatioD: of news and public issues, the
broadcast media should be placed under the control of public, i.e:, in the
H hands of statutory corporation or corporations, as the case may be. This
·is
MIN. OF INFORMATION AND BROADCASTINGv. CRICKET ASSN. OF BENGAL (B.P. JEEVAN REDDY, J.J 1185
the implicit comm~nd--of f.rticle 19(1)(a). I have also stressed the impor- A
tance of constitiiting and composing these corporations in such a manner
that they ensure impartiality
in political, economic and social and other
matters touching the public
and to ensure plurality of views, opinions and
ideas. This again
is the implicit command of Article 19(1)(a). This medium
should promote the public interest
by providing information, knowledge
and entertainment of good quality
in a balanced way. Radio and Television
should serve the role of public educators
as well. Indeed, more than one
corporation
for each media can be provided with a view to provide
com
petition among them (as has been done in France) or for convenience, as
the case
may be.
Now, coming to the Indian Telegraph Act, 1885, a look at its scheme
and provisions would disclose that it
was meant for a different purpose
altogether. When it
was enacted, there was neither Radio* nor, of course,
television, though it
may be that radio or television fall within the definition
B
c
of
"telegraph" in Section 3(1). Except Section 4 and the definition of the D
expression "telegraph", no other provision of the Act appears to be relevant
to broadcasting media since the validity of Section 4(1) has not been
specifically challenged before
us, we decline to express any opinion there-
on. The situation
is undoubtedly unsatisfactory. This
is the result of the
legislation in this country not keeping pace with the technological develop
ments. While all the democracies in the world have enacted laws specifi-E
cally governing the broadcasting media, this country has lagged behind,
rooted in the Telegraph Act
of 1885 which is wholly inadequate and
unsuited to an important media like radio and television, i.e., broadcasting
media.
It is absolutely essential, in the interest of public, in the interests of
the freedom of speech and expression guaranteed
by Article 19(1)(a) and F
with a view to avoid confusion, uncertainty and consequent litigation that
Parliament steps in soon to
fill the void by enacting a law or laws, as the
case
may be, governing the broadcasting
mooia, i.e., both radio and
television media. The question whether to permit private broadcasting or
not is a matter of policy for the Parliament to decide.
If it decides to permit
it,
.it is for the Parliament to decide, subject to what . conditions and G
restrictions should it be permitted. (This aspect was been dealt with supra).
The fact remains that private broadcasting, even
if allowed, should not be
It was only in 1895 that G.Marconi succeeded in transmitting wireless signals between
sending and receiving points without the use
of connecting wires over a distance of two
kilometers. . H
1186 SUPREME COURT REPORTS [1995] 1 S.C.R.
A left to market forces, in the interest of ensuring that a wide variety of voices
enjoy access to
it.
SUMMARY
B In this summary too, the expression "broadcasting media" means the
electronic media now represented and operated
by AIR and Doordarshan
and not any other services.
' .
I
l(a). Game of cricket, like any other sports event, provides entertain
ment. Providing entertainment is implied in fr.eedom of speech' and eXJ)re's-
C sion guaranteed by Article 19(1)(a) of the Constitution subject to this rider
that where speech and conduct are joined in'a siilgle course·of action, the
free speech values must be balanced against competing societal interests.
The petitioners (CAB and BCCI) therefore have a right to· organise· cricket
matches in India, whether with
or without
the participation , of foreign
D teams. But what they are now seeking is a license to telecast their matches
through an agency
of their choice - a foreign agency in both the cases -
and through telecasting equipment brought in by such foreign agency from
outside the country. In the case
of Hero Cup Matches organised by CAB,
they wanted uplinking facility to INTELSAT through the government
agency
VSNL also. In the case of later international matches organised by
E BCCI they did not ask for this facility for the reason that their foreign agent
has arranged direct uplinking with the Russian satellite Gorizon.
In both
cases, they wanted the permission to
import the telecasting equipment
along with the personnel to operate it by moving it to places
all over the
country wherever the matches were to be played. They claimed this license;
F or permission, as it may be called, as a matter of right said to be flowing
from Article 19(1)(a)
of the Constitution. They say that the authorities are
bound to grant such license/permission, without any conditions,
all that
they are entitled to do, it
is submitted, is to collect technical fees wherever
their services are availed, like the services
of
VSNL in the case of Hero
Cup Matches.
This plea is in principle no different from the
. right to
G establish and operate private telecasting stations. In principle, there is no
difference between a permanent
TV station and a temporary one; similarly
there is no distinction in principle between a stationary
TV facility and a
mobile one; so also
is there no distinction between a regular TV facility
and a TV. facility for a given event
or series of events. If the right claimed
H by the petitioners (CAB and BCCI) is held to be constitutionally sane-
"' (
I.
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [B.P. JEEVAN REDDY, J.] 1187
tioned one, then each and every citizen of this country must also be entitled A
to claim similar right in respect of his event or events, as the case may be.
I am of the opinion that no such right
flows from Article 19(1)(a).
(b) Airwaves constitute public property and must be utilised for
·
advancing public good. No individual has a right to utilise them at his B
choice and pleasure and for purposes of his choice including profit. The
right of free speech guaranteed by Article 19(1)(a) does not include the
right to use airwaves, which are public property. The airwaves can be used
by a citizen for the purpose
of broadcasting only when allowed to do so by
a statute and in accordance with such statute. Airwaves being
publ~c
property, it is the duty of the State to see that airwaves are so utilised as C
to advance the free speech right of the citizens which is served by ensuring
plurality and diversity of
views, opinions and ideas. This is imperative in
every democracy where freedom of speech is assured. The free speech right
guaranteed to every citizen of this country does not encompass the right to
use these airwaves at his choosing. Conceding such a right would be
D
detrimental to the free speech right of the body of citizens inasmuch as
only the privileged
few
-powerful economic, commercial and political
interests -would come to dominate the media. By manipulating the news,
views and information, by indulging in misinformation and disinformation,
to suit their commercial or other interests, they would
be harming
-and
not serving -the principle of plurality and diversity of views, news, ideas E
and opinions. This has been the experience of Italy where a limited right,
i.e., at the local level but not at the national level was recognised. It is also
not possible to imply or infer a right from the guarantee
of free speech
which only a
few can enjoy.
(c)
BroadGasting media is inherently different from Press or other
means of communication/information. The analogy of press is misleading
and inappropriate. This
is also the view expressed by several Constitutional
Courts including that of the
United States of America.
F
( d) I must clarify what I says; it is that the right claimed by the G
petitioners (CAB and BCCI) -which in effect is no cliff erent in principle
from a right to establish and operate a private TV station -does not flow
from Article 19(1)(a); that such a right is not implicit. The question
whether such right should be given to the citizens of this country is a matter
of policy for the Parliament. Having regard to the revolution in information
H
1188 SUPREME COURT REPORTS [1995] 1 S.C.R.
A technology and the developments all around, Parliament may, or may not
decide to confer such right. If it wishes to confer such a right, it can only
be
way of an Act made by Parliament. The Act made should be consistent
+
with the right of free speech of the citizens and must have to contain strict
programme and other controls,
as has been provided, for example, in the
B
Broadcasting Act, 1991 in the
United Kingdom. This is the implicit com-
.mand of Article 19(1)(a) and is essential to preserve and promote plurality
and diversity of
views, news opinions and ideas.
(e) There is an inseparable inter-connection between freedom
of
speech and the stability of the society, i.e., stability of a nation-State. They
1'-~
c contribute to each other. Ours iS a nascent republic. We are yet to achieve
the goal of a stable society. This country cannot also ·afford to read into
Article 19(1)(a) an·unrestricted right to licensing (right of broadcasting)_
as claimed by the petitioners herein.
D
(t) In the case before us, both the petitioners have sold their right to
telecast the matches to a foreign agency. They have parted with the right.
The right to telecast the matches, including the right to import, install and
operate the requisite equipment,
is thus really sought by the foreign
agen~
cies and not by the petitioners. Hence, the question of violation of their
E
right under Article 19(1)(a) resulting from refusal of licences/permission
to such foreign agencies does not arise.
2. The Government monopoly of broadcasting media in this country
is the result of historical and other factors. This is true of every other
country, to start with. That India and not a free country till
1947 and its
F
citizens did not have constitutionally guaranteed fundamental freedoms till
1950 coupled with the fact that our Constitution is just about forty five years .....
into operation explains the Government monopoly. As pointed out in the
body of the judgment, broadcasting media was a monopoly of the Govern-
ment, to start with, in every country except the United States where a
G
conscious decision was taken at the very beginning not to have State
monopoly over the medium. Until recently, the broadcasting media has
been in the hands of public/statutory corporations in most of the West
European countries.
Private broadcasting is comparatively a recent
phenomenon.· The experience in Italy of allowing private broadcasting at
~
local level (while prohibiting it at national level) has left much to be
H
desired. It bas given rise to powerful media empires which development is
MIN. OF INFORMATION AND BROADCASflNG v. CRICKET ASSN. OF BENGAL [B.P. JEEV AN REDDY, J.) 1189
certainly not conducive to free speech right of the citizens.
A
3(a). It has been held by this Court-and rightly -that broadcasting
. media
is affected by the free speech right of the citizens guaranteed by
Article 19(1)(a). This
is also the view expressed by all the Constitutional
Courts whose opinions have been referred to in the body
of the judgment. B
Once this is so, monopoly of this medium (broadcasting media), whether
by Government or by an individual, body or organisation is unacceptable.
Clause (2) of Article
19 does not permit a monopoly in the matter of
freedom of speech and expression as is permitted by clause ( 6) of Article
19 vis-a-vis the right guaranteed by Article 19(1)(g).
(b)
The right of free speech and expression includes the right to
receive and expression includes the right to receive and impart information.
For ensuring the free speech right of the citizens of this country, it is
necessary that the citizens have the benefit
of plurality of views and a range
c
of opinions on all public issues. A successful democracy posits an 'aware' D
citizenry. Diversity of opinions, views, ideas and ideologies is essential to
enable the citizens to arrive at informed judgment on all issues toughing
them. This cannot be provided by a medium controlled by a monopoly -
whether the monopoly is
of the State or any other individual, group or
organisation. As a matter of fact, private broadcasting stations may perhaps
be more prejudicial to free speech right
of the citizens than the government E
controlled media, as explained in the body of the judgment. The broadcast-
ing media should be under the control
of the public as distinct from Govern
ment.
This is the command implicit in Article 19(1)(a). It should be
operated by a public statutory corporation
or corporations, as the case may
be, whose constitution and composition must
be such as to ensure its/their F
impart.iality in political, economic and social matters and on all other public
issues. It/they must
be required by law to present news, views and opinions
in a balanced way ensuring pluralism and diversity
of opinions and views.
It/they must provide equal access to all the citizens and groups
to avail of
the medium.
4. The Indian Telegraph Act. 1885 is totally inadequate to govern an
important medium like the radio and television, i.e., broadcasting media.
The Act was intended for an altogether different purpose when it was
enacted. This
is the result of the law in this country not keeping pace with
G
the technological advances in the field of information and communications. H
1190 SUPREME COURT REPORTS [1995] 1 S.C.R.
A While all the leading democratic countries have enacted laws specifically
governing the broadcasting media, the law in this country has stood still,
0
rooted in the Telegraph Act of 1885. Except Section 4(1) and the definition
of telegraph, no other.provision of the Act
is shown to have any
relevaace
to. broadcasting media. It is therefore, imperative that the Parliam:!nt
makes a law placing the broadcasting media in the hands of a
B public/statutory corporate or the corporations, as the case may be. This is
necessary to safeguard the interests of public and the interests of law as
also to avoid uncertainty, confusion and consequent litigation.
5. The CAB did not ever apply for a license under the first proviso
C to Section 4 of the Telegraph Act nor did its
agents ever make such an
application. The permissions, clearances or exemption obtained
by it from
the several departments (mentioned in judgment) are no substitute for a
license
under Section 4(1) proviso. In the absence of such a license, the
CAB had no right in law to have its matches telecast by an agency
of its
D choice. The legality or
validity of the orders passed by Sri N. Vithal,
Secretary to the Government of India, Telecommunications Department
n.eed not be gone into since it has become academic. In the facts and
circumstances of the case, the charge of
malafides or of arbitrary and
authoritarian conduct attributed to Doordarshan and Ministry
of
Informa
tion and Broadcasting is not acceptable. No opinion need be expressed on
E the allegations made in the Interlocutory Application filed by BCCI in
· these matters. Its intervention was confined to legal questions only.
6. Now the question arises, what is the position till the Central
Government or the Parliament takes steps as contemplated in Para (4) of
F the summary, i.e., if any sporting event or other event is to be telecast from
the Indian soil? The obvious answer flowing from the judgment (and Paras
(1) and (4) of this summary) is that the organiser of such event has to
approach the nodal
Ministry as specified in the decision of the Meeting of
the Committee of Secretaries held on November 12, 1993. I have no reason d to doubt that such a request would be considered by the nodal Ministry
and the AIR and Doordarshan on its merits, keeping in view the public
interest.
In case of any difference of opinion or dispute regarding the
monetary
terms on which such telecast is to be made, matter can always
be referred to an Arbitrator or a panel of Arbitrators. In case, the nodal
Ministry
or the AIR or
Do~rdarshan fmd such broadcast/telecast not
H feasible, then may consider the grant of permission to the organisers to
/. .
//
//
'/
..
_ _,,
MIN. OF INFORMATION AND BROADCASI1NG v. CRICKET ASSN. OF BENGAL [B.P. JEEVAN REDDY, J.] 1191
engage an agency of their own for the purpose. Of course, it would be A
equally open to the nodal Ministry (Government of India) to permit such
foreign agency in addition to AIR/Doordarshan, if they are of the opinion
that such a course
is called for in the circumstances.
For the above reasons, the appeals, writ petition and applications are
disposed of
in the above terms. No costs. B
S.M. Disposing of the appeals and petition.
The landmark ruling in Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal, a cornerstone of media law in India, is now authoritatively detailed on CaseOn. This case fundamentally reshaped the landscape of broadcasting rights in India, establishing that airwaves are public property and cannot be monopolized by the state, thereby paving the way for the rise of private television channels.
The dispute originated when the Cricket Association of Bengal (CAB) organized the 'Hero Cup' international cricket tournament in 1993. CAB sought to sell the telecasting rights for the event to generate revenue for the promotion of cricket. Doordarshan (DD), the state-owned broadcaster, submitted an offer that CAB considered commercially unviable. Consequently, CAB entered into a contract with a foreign entity, Trans World International (TWI), for a significantly higher amount to produce and telecast the matches globally.
In response, the Ministry of Information and Broadcasting (MIB) and other government agencies created several obstacles. They refused to grant TWI the necessary permissions to import equipment and denied it access to satellite uplinking facilities controlled by Videsh Sanchar Nigam Limited (VSNL). The government's stance was that it held a monopoly over all broadcasting from Indian soil under the Indian Telegraph Act, 1885, and that CAB had no right to engage a foreign agency. Aggrieved, CAB approached the Calcutta High Court, which granted interim relief, leading the government to appeal to the Supreme Court of India.
The Supreme Court was tasked with resolving several critical constitutional questions:
The legal framework for this case hinged on the interpretation of key constitutional and statutory provisions:
The court meticulously examined the arguments presented by both sides to arrive at its historic decision.
The Union of India, representing the MIB and Doordarshan, argued that the right claimed by CAB was not a matter of free speech but a purely commercial interest, falling under Article 19(1)(g). They contended that airwaves are a scarce, finite public resource that the government must regulate in the public interest. A state monopoly, they argued, was necessary to ensure that this resource was used for the public good and to prevent it from being controlled by a few wealthy entities, thereby ensuring equitable access for all citizens.
The Cricket Association of Bengal asserted that the right to broadcast is an integral part of the freedom of speech and expression. They argued that this freedom includes the right to disseminate information to the widest possible audience using the best available technology. CAB contended that the government's "scarcity" argument was outdated due to advancements in satellite technology. Therefore, the state's claim of a monopoly was an unreasonable and unconstitutional restriction on their fundamental rights.
Analyzing the nuanced arguments and the distinct majority and minority opinions in this complex ruling can be time-consuming. Legal professionals often turn to resources like CaseOn.in's 2-minute audio briefs to quickly grasp the core reasoning and implications of such landmark judgments, streamlining their case preparation.
The Court, in a majority opinion delivered by Justice P.B. Sawant, sided decisively with the principles of free speech and democratic pluralism.
The Supreme Court disposed of the appeals by holding that the right to telecast is a fundamental component of the freedom of speech and expression guaranteed under Article 19(1)(a). It firmly established that airwaves are public property to be regulated by an independent public authority, not monopolized by the state. The Court's decision effectively ended the government's exclusive control over broadcasting in India.
The Supreme Court's ruling dismantled the state's monopoly over broadcasting, asserting that the freedom of speech extends to electronic media. It established the 'public trust' doctrine for airwaves, declaring them a public property that must be regulated by an independent body to ensure pluralism and diversity of views. The Court held that any refusal to grant broadcasting rights cannot be arbitrary or based on a claim of monopoly but must be justified under the reasonable restrictions outlined in Article 19(2) of the Constitution.
This judgment is a foundational text in Indian constitutional and media law. For lawyers and students, it is essential reading because:
Understanding this case is crucial for anyone practicing or studying media, constitutional, or administrative law, as its principles continue to shape India's media landscape.
Disclaimer: The information provided in this article is for informational purposes only and does not constitute legal advice. Please consult with a qualified legal professional for advice on any specific legal issue.
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