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The Secretary, Ministry of Information and Broadcasting vs. Cricket Association of Bengal & Anr.
1995 AIR 1236, 1995 SCC (2)161, [1995]1SCR1036
Hon’ble Judges/Coram: P.B. Sawant, S. Mohan and B.P. Jeevan Reddy, JJ.
Date of Decision: 09.02.1995
FACTS:-
In the present case the right to live-telecast the event, viz., the cricket matches organised by the Cricket Association of Bengal [CAB]/Board of Control for Cricket in India [BCCI] is involved. The Cricket board desired to telecast the cricket matches organised by IPL through a frequency not owned or controlled by the Government but owned by some other private agency. The only permission that the CAB/ BCCI sought from VSNL which is the Government agency controlling the frequencies was to uplink to the foreign satellite the signals created by its own cameras and the earth station or the cameras and the earth station of its agency to a foreign satellite. Petitioners claimed that their right to telecast the matches flow from Article 19(1)(a) of the Constitution and thus authorities should grant them the license to do so.
ISSUES:-
- First issue is broadly divided into following questions:
- Whether organising a cricket match or other sports event a form of speech and expression guaranteed byArticle 19(1)(a) of the Constitution?
- Whether the right to do live telecast such event is also included within the right of free speech and expression?
- Whether the organiser can claim the right to sell the telecasting rights of such events to such agency as they think proper and whether they have the right to compel the government to issue all requisite permissions, licences and facilities to enable such agency to telecast the events from the Indian soil? Does the right inArticle 19(1)(a) take in all such rights?
- If the organiser of sports does have the rights mentioned in (c), whether the government is not entitled to impose any conditions thereon except charging technical fees or service charges, as the case may be?
- Whether the virtual monopoly existing in favour of Doordarshan in the matter of telecasting from Indian soil violative of Article19(1)(a) of the Constitution?
JUDGEMENT:-
In response to the question (a) of issue 1, Court referred to Burstyn v. Wilson (96 L.Ed.1098) and said that a game of cricket like any other sports event provides entertainment – and entertainment is a facet, a part, of free speech, subject to the caveat that where speech and conduct are joined in a single course of action, the free speech values must be balanced against competing societal interests. The petitioners (CAB and BCCI) therefore have a right to organise cricket matches in India, whether with or without the participation of foreign teams.
With respect to the questions (b) and (c), court observes that 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. At the outset Court clarifies that this case is concerned with the ‘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 appended in view of the contention urged that nothing prevents the organisers or for that matter, anybody – from video recording the event and then take the video cassette out of this country and telecast it from outside stations. Undoubtedly, they can do so. Only thing is that it will not be a live telecast and it would also not be a telecast from the Indian soil. If the right claimed by the petitioners (CAB and BCCI) is held to be constitutionally sanctioned one, then each and every citizen of this country must also be entitled to claim similar right in respect of his event or events, as the case may be. For this reason Court formed the opinion that no such right flows from Article 19(1)(a).
It further added that Airwaves constitute public property and must be utilised for advancing public good. No individual has a right to utilise them at his choice and pleasure and for purposes of his choice including profit. The right of free speech guaranteed by Article 19(1)(a) does not include the right to use airwaves, which are public property. The airwaves can be used by a citizen for the purpose of broadcasting only when allowed to do so by a statute and in accordance with such statute. Airwaves being public property, it is the duty of the State to see that airwaves are so utilised as to advance the free speech right of the citizens which is served by ensuring plurality and diversity of views, opinions and ideas. This is imperative in every democracy where freedom of speech is assured. The free speech right guaranteed to every citizen of this country does not encompass the right to use these airwaves at his choosing. Conceding such a right would be 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 and opinions. It is also not possible to imply or infer a right from the guarantee of free speech which only a few can enjoy.
Further in light of the contentions raised in this case, Court observes that broadcasting media is inherently different from Press or other means of communication/information. The analogy of press is misleading and inappropriate. Court clarifies that the right claimed by the petitioners in effect is no different in principle from a right to establish and operate a private TV station, which does not flow from Article 19(1)(a). The question whether such right should be given to the citizens of this country is a matter of policy for the Parliament. Having regard to the revolution in information technology and the developments all around, Parliament may, or may not decide to confer such right. If it wishes to confer such a right, it can only be way of an Act made by Parliament. The Act made should be consistent with the right of free speech of the citizens and must have to contain strict programme and other controls, as has been provided, for example, in the Broadcasting Act, 1991 in the United Kingdom. This is the implicit command of Article 19(1)(a) and is essential to preserve and promote plurality and diversity of views, news opinions and ideas. There is an inseparable inter-connection between freedom of speech and the stability of the society, i.e., stability of a nation-State. They contribute to each other. Ours is a nascent republic. We are yet to achieve the goal of a stable society. This country cannot also afford to read into Article 19(1)(a) an unrestricted right to licensing (right of broadcasting) as claimed by the petitioners herein.
Moreover, Court notes that in the present case, 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 agencies and not by the petitioners. Hence, the question of violation of their right under Article 19(1)(a) resulting from refusal of licenses/permission to such foreign agencies does not arise.
The Court for the question (d), started with the observation that the spontaneous, accidental and natural events are by their nature uncontrollable. But the organised events can be controlled by the law of the land. In our country, since the Organisation of an event is an aspect of the fundamental right to freedom of speech and expression protected by Article 19 [1] (a), the law can be made to control the Organisation of such events only for the purposes of imposing reasonable restrictions in the interest of the sovereignty and integrity of the country, the security of the state, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement- to an offence as laid down under Article 19 [2] of the Constitution. It, therefore, follows that the Organisation or production of an event and its recording cannot be prevented except by law permitted by Article 19 [2]. For the same reasons, the publication or communication of the recorded event through the mode of cassettes cannot be restricted or prevented except under such law.
As far as second issue is concerned, Court says that 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 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 Government, to start with, in every country except the United States where a conscious decision was taken at the very beginning not to have State monopoly over the medium. It has been rightly held by this Court that broadcasting media is affected by the free speech right of the citizens guaranteed by Article 19(1)(a). This is also the view expressed by all the Constitutional Courts whose opinions have been referred to in the body of the judgment. Once this is so, monopoly of this medium (broadcasting media), whether by Government or by an individual, body or organisation is unacceptable. Clause (2) of Article 19 does not permit a monopoly in the matter of freedom of speech and expression as is permitted by Sub-clause (6) of Article 19 vis-a-vis the right guaranteed by Article 19(1)(g).
In furtherance, court adds that 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 of opinions on all public issues. A successful democracy posits an ‘aware’ citizenry. Diversity of opinions, views, ideas and ideologies is essential to enable the citizens to arrive at informed judgment on all issues 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 controlled media, as explained in the body of the judgment. The broadcasting media should be under the control of the public as distinct from Government. This is the command implicit in Article 19(1)(a). It should be operated by a public statutory corporation or corporations, as the case may be, whose Constitution and composition must be such as to ensure its/their impartiality in political, economic and social matters and on all other public issues. It/they must be required by law to present news, views and opinions in a balanced way ensuring pluralism and diversity of opinions and views. It/they must provide equal access to all the citizens and groups to avail of the medium.
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 the technological advances in the field of information and communications. While all the leading democratic countries have enacted laws specifically governing the broadcasting media, the law in this country has stood still, rooted in the Telegraph Act of 1885. Except Section 4(1) and the definition of telegraph, no other provision of the Act is shown to have any relevance to broadcasting media. It is therefore, imperative that the Parliament makes a law placing the broadcasting media in the hands of a public/statutory corporate or the corporations, as the case may be. This is necessary to safeguard the interests of public and the interests of law as also to avoid uncertainty, confusion and consequent litigation.
Now in the end, Court also expressed its views on, what is the position till the Central Government or the Parliament takes steps as contemplated hereinbefore, i.e., if any sporting event or other event is to be telecast from the Indian soil? According to Court, the obvious answer flowing from the judgment is that the organiser of such event has to approach the nodal Ministry, and such a request would be considered by the nodal Ministry and the AIR and Doordarshan on its merits, keeping in view the public interest. In case of any difference of opinion or dispute regarding the monetary terms on which such telecast is to be made, matter can always be referred to an Arbitrator or a panel of Arbitrators. In case, the nodal Ministry or the AIR or Doordarshan find such broadcast/telecast not feasible, then may consider the grant of permission to the organisers to engage an agency of their own for the purpose. Of course, it would be equally open to the nodal Ministry (Government of India) to permit such foreign agency in addition to AIR/Doordarshan, if they are of the opinion that such a course is called for in the circumstances.
HELD:-
In light of the aforesaid principles, Court held that the CAB did not ever apply for a license under the first proviso to Section 4 of the Telegraph Act nor did its agents ever make such an application. The permissions, clearances or exemption obtained by it from the several departments (mentioned in judgment) are no substitute for a license under Section 4(1) proviso. In the absence of such a license, the CAB had no right in law to have its matches telecast by an agency of its choice.
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