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P.B. SAWANT, J. – 2. It will be convenient to answer the questions of law that arise in the present case, before we advert to the factual controversy between the parties. The questions of law are:
(1) Has an organiser or producer of any event a right to get the event telecast through an agency of his choice whether national or foreign?
(2) Has such organiser a choice of the agency of telecasting, particularly when the exercise of his right, does not make demand on any of the frequencies owned, commanded or controlled by the Government or the government agencies like the Videsh Sanchar Nigam Limited (VSNL) or Doordarshan (DD)?
(3) Can such an organiser be prevented from creating the terrestrial signal and denied the facility of merely uplinking the terrestrial signal to the satellite owned by another agency whether foreign or national?
(4) What, if any, are the conditions which can be imposed by the Government Department which in the present case is the Ministry of Information and Broadcasting (MIB) for (a) creating terrestrial signal of the event, and (b) granting facilities of uplinking to a satellite not owned or controlled by the Government or its agencies?
3. On answers to these questions depend the answers to the incidental questions such as (i) whether the Government or the government agencies like DD in the present case, have a monopoly of creating terrestrial signals and of telecasting them or refusing to telecast them, (ii) whether the Government or government agencies like DD can claim to be the host broadcaster for all events whether produced or organised by it or by anybody else in the country and can insist upon the organiser or the agency for telecasting engaged by him, to take the signal only from the Government or government agency and telecast it only with its permission or jointly with it.
4. To appreciate the thrust of the above questions and the answers to them, it is necessary first to have a proper understanding of what ‘telecasting’ means and what its legal dimensions and consequences are. Telecasting is a system of communication either audio or visual or both. We are concerned in the present case with audio-visual telecommunication. The first stage in telecasting is to generate the audio-visual signals of the events or of the information which is sought to be communicated. When the event to be telecast takes place on the earth, necessarily the signal is generated on the earth by the requisite electronic mechanism such as the audio-visual recorder. This stage may be described as the recording stage. The events may be spontaneous, accidental, natural or organised. The spontaneous, accidental and natural events are by their nature uncontrollable. But the organised events can be controlled by the law of the land. In our country, since the organisation of an event is an aspect of the fundamental right to freedom of speech and expression protected by Article 19(1)(a), the law can be made to control the organisation of such events only for the purposes of imposing
reasonable restrictions in the interest of the sovereignty and integrity of the country, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence as laid down under Article 19(2) of the Constitution. 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 mentioned in Article 19(2), to restrict their telecasting. As regards the organised events, a law can be made for restricting or prohibiting the organisation of the event itself, and also for telecasting it, on the same grounds as are mentioned in Article 19(2). There cannot, however, be restrictions on producing and recording the event on grounds not permitted by Article 19(2). It, therefore, follows that the organisation or production of an event and its recording cannot be prevented except by law permitted by Article 19(2). For the same reasons, the publication or communication of the recorded event through the mode of cassettes cannot be restricted or prevented except under such law. All those who have got the apparatus of video cassette recorder (VCR) and the television screen can, therefore, view and listen to such recorded event (hereinafter referred to, for the sake of convenience, as ‘viewers’). In this process, there is no demand on any frequency or channel since there is no live telecast of the event. The only additional restriction on telecasting or live telecasting of such event will be the lack of availability of the frequency or channel.
5. Since in the present case, what is involved is the right to live telecast the event, viz., the cricket matches organised by the Cricket Association of Bengal, it is necessary to understand the various issues involved in live telecasting. It may be made clear at the outset, that there may as well be a file telecast (i.e., telecasting of the events which are already recorded by the cassette). The issues involved in file telecasting will also be more or less the same and therefore, that subject is not dealt with separately. Telecasting live or file necessarily involves the use of a frequency or a channel.
6. The telecasting is of three types, – (a) terrestrial, (b) 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 TV centre which in turn relays it through its own frequencies to all the viewers who have TV screens/sets. In the second case, viz., cable telecasting, the cable operator receives the signals from the satellite by means of the parabolic dish antenna and relays them to all those TV screens which are linked to his cable. He also relays the recorded file programmes or cassettes through the cable to the cable- linked viewers. In this case, there is no restriction on his receiving the signals from any satellite to which his antenna is adjusted. There is no demand made by him on any frequency or channel owned or controlled by the national Government or governmental agencies. The cable operator can show any event occurring in any part of the country or the world live through the frequencies if his dish antenna can receive the same. The only limitation from which the cable TV suffers is that the programmes relayed by it can be received only by those viewers who are linked to the dish antenna concerned. The last type, viz., satellite TV operation involves the use of a frequency generated, owned or controlled by the national Government or the governmental agencies, or those generated, owned and controlled by other agencies. It is necessary to bear in mind the distinction between the frequencies generated, owned and controlled by the Government or governmental agency and those generated and owned by the other agencies. This is so because generally, as in the present case, one of the contentions against the right to access to telecasting is that there are a limited number of
frequencies and hence there is the need to utilise the limited resources for the benefit of all sections of the society and to promote all social interests by giving them priority as determined by some central authority. It follows, therefore, that where the resources are unlimited or the right to telecast need not suffer for want of a frequency, objection on the said ground would be misplaced. It may be stated here that in the present case, the contention of the MIB and DD against the right to telecast claimed by the Cricket Association of Bengal (CAB)/Board of Control for Cricket in India (BCCI) was raised only on the ground of the limitation of frequencies, ignoring the fact that the CAB/BCCI had not made demand on any of the frequencies generated or owned by the MIB/DD. It desired to telecast the cricket matches organised by it through a frequency not owned or controlled by the Government but owned by some other agency. The only permission that the CAB/BCCI sought was to uplink to the foreign satellite the signals created by its own cameras and the earth station or the cameras and the earth station of its agency to a foreign satellite. This permission was sought by the CAB/BCCI from VSNL which is the government agency controlling the frequencies. The permission again cannot be refused except under law made in pursuance of the provisions of Article 19(2) of the Constitution. Hence, as stated above, one of the important questions to be answered in the present case is whether the permission to uplink to the foreign satellite, the signal created by the CAB/BCCI either by itself or through its agency can be refused except on the ground stated in the law made under Article 19(2).
43. We may now summarise the law on the freedom of speech and expression under Article 19(1)(a) as restricted by Article 19(2). The freedom of speech and expression includes right to acquire information and to disseminate it. Freedom of speech and expression is necessary, for self- expression which is an important means of free conscience and self- fulfilment. It enables people to contribute to debates on social and moral issues. It is the best way to find a truest model of anything, since it is only through it that the widest possible range of ideas can circulate. It is the only vehicle of political discourse so essential to democracy. Equally important is the role it plays in facilitating artistic and scholarly endeavours of all sorts. The right to communicate, therefore, includes right to communicate through any media that is available whether print or electronic or audio-visual such as advertisement, movie, article, speech etc. That is why freedom of speech and expression includes freedom of the press. The freedom of the press in terms includes right to circulate and also to determine the volume of such circulation. This freedom includes the freedom to communicate or circulate one’s opinion without interference to as large a population in the country, as well as abroad, as is possible to reach.
44. This fundamental right can be limited only by reasonable restrictions under a law made for the purposes mentioned in Article 19(2) of the Constitution.
45. The burden is on the authority to justify the restrictions. Public order is not the same thing as public safety and hence no restrictions can be placed on the right to freedom of speech and expression on the ground that public safety is endangered. Unlike in the American Constitution, limitations on fundamental rights are specifically spelt 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 than those specified under Article 19(2).
46. What distinguishes the electronic media like the television from the print media or other media is that it has both audio and visual appeal and has a more pervasive presence. It
has a greater impact on the minds of the viewers and is also more readily accessible to all including children at home. Unlike the print media, however, there is a built-in limitation on the use of electronic media because the airwaves are a public property and hence are owned or controlled by the Government or a central national authority or they are not available on account of the scarcity, costs and competition.
47. The next question to be answered in this connection is whether there can be a monopoly in broadcasting/telecasting. Broadcasting is a means of communication and, therefore, a medium of speech and expression. Hence in a democratic polity, neither any private individual, institution or organisation nor any Government or government organisation can claim exclusive right over it. Our Constitution also forbids monopoly either in the print or electronic media. The monopoly permitted by our Constitution is only in respect of carrying on a trade, business, industry or service under Article 19(6) to subserve the interests of the general public. However, the monopoly in broadcasting and telecasting is often claimed by the Government to utilise the public resources in the form of the limited frequencies available for the benefit of the society at large. It is justified by the Government to prevent the concentration of the frequencies in the hands of the rich few who can 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 made on this ground may, however, lose all its raison d’être if either any section of the society is unreasonably denied an access to broadcasting or the governmental agency claims exclusive right to prepare and relay programmes. The ground is further not available when those claiming an access either do not make a demand on the limited frequencies controlled by the Government or claim the frequency which is not utilised and is available for transmission. The Government sometimes claims monopoly also on the ground that having regard to all pervasive presence and impact of the electronic media, it may be utilised for purposes not permitted by law and the damage done by private broadcasters may be irreparable. There is much to be said in favour of this view and it is for this reason that the regulatory provisions including those for granting licences to private broadcasting where it is permitted, are enacted. On the other hand, if the Government is vested with an unbridled discretion to grant or refuse to grant the licence or access to the media, the reason for creating monopoly will lose its validity. For then it is the Government which will be enabled to effectively suppress the freedom of speech and expression instead of protecting it and utilising the licensing power strictly for the purposes for which it is conferred. It is for this reason that in most of the democratic countries an independent autonomous broadcasting authority is created to control all aspects of the operation of the electronic media. Such authority is representative of all sections of the society and is free from control of the political and administrative executive of the State.
48. 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 (“Telegraph Act”) creates this monopoly and vests the power of regulating and licensing broadcasting in the Government. Further, the Cinematograph Act, 1952 and the Rules made thereunder empower the Government to pre-censor films. However, the power given to the Government to licence and to pre-censor under the respective legislations has to be read in the context of Article 19(2) of the Constitution which sets the parameters of reasonable
restrictions which can be placed on the right to freedom of speech and expression. Needless to emphasise that the power to pre-censor films and to grant licences for access to telecasting, has to be exercised in conformity with the provisions of Article 19(2). It is in this context that we have to examine the provisions of Section 4(1) of the Telegraph Act and the action of the MIB/DD in refusing access to telecast the cricket matches in the present case.
49. The relevant Section 4 of the Telegraph Act reads as follows:
“4. (1) Within India the Central Government shall have the exclusive privilege of establishing, maintaining and working telegraphs:
Provided that the Central Government may grant a licence, on such conditions and in consideration of such payments as it thinks fit, to any person to establish, maintain or work a telegraph within any part of India:
Provided further that the Central Government may, by rules made under this Act and published in the Official Gazette, permit, subject to such restrictions and conditions as it thinks fit, the establishment, maintenance and working–
(a) of wireless telegraphs on ships within Indian territorial waters and on aircraft within or above India, or Indian territorial waters, and
(b) of telegraphs other than wireless telegraph within any part of India.
(2) The Central Government may, by notification in the Official Gazette, delegate to the telegraph authority all or any of its powers 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 as the 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 or Hertzian waves, galvanic, electric or magnetic means;
Explanation. – ‘Radio waves’ or ‘Hertzian waves’ means electromagnetic waves of frequencies lower than 3000 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 establishing, maintaining and working appliances, instruments, material or apparatus used or capable of use for transmission or reception of signs, signals, images and sounds or intelligence of any nature by wire, visual or other electromagnetic emissions, radio 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 (hereinafter will be called as “electromagnetic waves”), as is made clear by Explanation to Section 3(1), the Central Government can have monopoly over the use of the electromagnetic waves only of frequencies lower than 3000 giga-cycles per second which are propagated in space with or without artificial guide. In other words, if the electromagnetic waves of frequencies of 3000 or more giga-cycles per second are propagated in space with or without artificial guide, or if the electromagnetic 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 sent by them disclosed a wide conflict which would have necessitated further oral arguments. Since we are of the view that the present matter can be decided without going into the controversy on the subject, we keep the point open for decision in an appropriate case. We will presume that in the present case the dispute is with regard to the use of electromagnetic waves of frequencies lower than 3000 giga-cycles per second which are propagated in space without artificial guide.
50. The first proviso to Section 4(1) states that the Central Government may grant licence on such conditions and in consideration of such payment as it thinks fit, to any person, to establish, maintain or work a telegraph within any part of India. We are not concerned here with the permission to establish or maintain a telegraph because in the present case the permission is sought only for operating a telegraph and that too for a limited time and for a limited and specified purpose. The purpose again is non-commercial. It is to relay the specific number of cricket matches. It is only incidentally that the CAB will earn some revenue by selling its right to relay the matches organised by it. The CAB is obviously not a business or a commercial organisation nor can it be said that it is organising matches for earning profits as a business proposition. As will be pointed out later, it is a sporting organisation devoted to the cause of cricket and has been organising cricket matches both of internal and international cricket teams for the benefit of the sport, the cricketers, the sportsmen present and prospective and of the viewers of the matches. The restrictions and conditions that the Central Government is authorised to place under Section 4(1) while permitting non-wireless telegraphing can, as stated earlier, only be those which are warranted by the purposes mentioned in Article 19(2) and none else. It is not and cannot be the case of the Government that by granting the permission in question, the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or either of them will be in jeopardy or that the permission will lead to the contempt of court, defamation or incitement to an offence. On the other hand, the arguments advanced are specious and with them we will deal a little later.
51. It is then necessary to understand the nature of the respondent organisation, namely, CAB. It cannot be disputed that the BCCI is a non-profit-making organisation which controls officially organised game of cricket in India. Similarly, Cricket Association of Bengal (CAB) is also non-profit-making organisation which controls officially organised game of cricket in the State of West Bengal. The CAB is one of the Founder Members of BCCI. Office-bearers and Members of the Working Committees of both BCCI and CAB are all citizens of India. The primary object of both the organisations, amongst others, is to promote the game of cricket, to foster the spirit of sportsmanship and the ideals of cricket, and to impart education through the media of cricket, and for achieving the said objects, to organise and stage tournaments and matches either with the members of International Cricket Council (ICC) or other organisations. According to CAB, BCCI is perhaps the only sports organisation in India which earns foreign exchange and is neither controlled by any governmental agency nor receives any financial assistance or grants, of whatsoever nature.
52. It cannot be disputed further that to arrange any international cricket tournament or series, it is necessary and a condition-precedent, to pay to the participating member-countries or teams, a minimum guaranteed amount in foreign exchange and to bear the expenses incurred for travelling, boarding, lodging and other daily expenses of the participating cricketers and the accompanying visiting officials concerned. A huge amount of expenses has also to be incurred for organising the matches. In addition, both BCCI and CAB annually incur large amount of expenses for giving subsidies and grants to its members to maintain, develop and upgrade the infrastructure, to coach and train players and umpires and to pay to them when the series and matches are played.
53. Against this background, we may now examine the questions of law raised by the parties. The contention of the Ministry of Information and Broadcasting (MIB) is that there is a difference between the implications of the right conferred under Article 19(1)(a) upon (i) the broadcaster i.e., the person operating the media, (ii) the person desiring access to the media to project his views including the organiser of an event, (iii) the viewer, and (iv) a person seeking uplinking of frequencies so as to telecast signals generated in India to other countries. The contention of CAB that denial of a licence to telecast through a media of its choice, based (according 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 organiser are not protected by Article 19(1)(a). However, the contention of the CAB results indirectly in such protection being sought by resort to the following steps of reasoning : (a) the Board has a right to commercially exploit the event to the maximum, (b) the viewer has a right to access to the event through the television. Hence the Board has the right to telecast through an appropriate channel and also the right to insist that a private agency, including a foreign agency, should be allowed all the sanctions and permissions as may be necessary therefor.
54. 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-à-vis the right under Article 19(1)(g), cannot be extended to the right of sports associations. The basic premise underlying the recognition of the rights of the press under Article 19(1)(a) is that the economic strength is vitally necessary to ensure independence of the press, and thus even the ‘business’ elements of a newspaper have to some extent a “free speech” protection. In other words the commercial element of the press exists to subserve the basic object of the press, namely, free dissemination of news and views which enjoys the protection of free speech. However, free speech element in telecast of sports is incidental. According to the MIB, the primary object of the telecast by the CAB is to raise funds and hence the activities are essentially of trade. The fact that the profits are deployed for promotion of sports is immaterial for the purpose.
55. It is further urged that a broadcaster does not have a right as such to access to the airwaves without a licence either for the purposes of telecast or for the purposes of uplinking. Secondly, there is no general right to a licence to use airwaves which being a scarce resource, have to be used in a manner that the interests of the largest number are best served. The paramount interest is that of the viewers. The grant of a licence does not confer any special right inasmuch as the refusal of a licence 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. State monopoly created as a device to use the resource is not per se violative of the right of free speech as long as the paramount interests of the viewers are subserved and access to the media is governed by the fairness doctrine. According to the MIB, the width of the rights under Article 19(1)(a) has never been considered to be wider than that conferred by the First Amendment to the US Constitution. It is also urged that the licensing of frequencies and consequent regulation of telecast/broadcast would not be a matter covered by Article 19(2). The right to telecast/broadcast has certain inherent limitations imposed by nature, whereas Article 19(2) applies to restrictions imposed by the State. The object of licensing is not to cast restrictions on the expression of ideas, but to regulate and marshal scarce resources to ensure their optimum enjoyment by all including those who are not affluent enough to dominate the media.
56. It is next urged that the rights of an organiser to use airwaves as a medium to telecast and thereby propagate his views, are distinct from his right to commercially exploit the event. Although it is conceded that an organiser cannot be denied access on impermissible grounds, it is urged that he cannot further claim a right to use an agency of his choice as a part of his right of free speech. In any event no person can claim to exercise his right under Article 19(1)(a) in a manner which makes it a device for a non-citizen to assert rights which are denied by the Constitution. According to MIB, it is the case of the BCCI that to promote its commercial interest, it is entitled to demand that the Government grants all the necessary licences and permissions to any foreign agency of its choice and a refusal to do so would violate Article 19(1)(a). According to MIB, this is an indirect method to seek protection of Article 19(1)(a) to the non-citizens.
57. It is then contended that a free-speech right of a viewer has been recognised as that having 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 contended that it is very cost-intensive. Unless, therefore, the rights of the viewers are given primacy, it will in practice result in the affluent having the sole right to air their views completely eroding the right of the viewers. The right of viewer can only be safeguarded by the regulatory agency by controlling the frequencies of broadcast as it is otherwise impossible for viewers to exercise their right to free speech qua the electronic media in any meaningful way.
58. Lastly, dealing with the contention raised on behalf of the CAB and BCCI that the monopoly conferred upon DD is violative of Article 19(1)(a), while objecting to the contention on the ground that the issue does not arise in the present proceedings and is not raised in the pleadings, it is submitted on behalf of MIB that the principal contentions of the CAB/BCCI are that they are entitled to market their right to telecast an event at the highest possible value it may command and if Doordarshan is unwilling to pay as much as the highest bidder, the CAB/BCCI has the right not only to market the event but to demand as of right, all the necessary licences and permissions for the agency including foreign agency which has purchased its rights. According to MIB these contentions do not raise any free-speech issues, but impinge purely on the right to trade. As far as Article 19(1)(g) is concerned, the validity of the monopoly in favour of the Government is beyond question. Secondly, in the present case, Doordarshan did not refuse to telecast the event per se. It is then submitted that the
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 Article 19(1)(a). If it is accepted that the Government has not only the right but the duty to regulate the distribution of frequencies, then the only way it can be done is by creating a monopoly. A mere creation of the monopoly agency to telecast does not per se violate Article 19(1)(a) as long as the access is not denied to the media either absolutely or by imposition of terms which are unreasonable. Article 19(1)(a) proscribes monopoly in ideas and as long as this is not done, the mere fact that the access to the media is through the Government-controlled agency, is not per se violative of Article 19(1)(a). It is further urged that no material has been placed before the Court to show that the functioning of Doordarshan is such as to deny generally an access to the media and the control exercised by the Government is in substance over the content on the grounds other than those specified in Article 19(2) or a general permission to all those 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 private agencies affluent enough to buy access.
59. As against these contentions of the MIB, it is urged on behalf of CAB and BCCI as follows: The right to organise a sports event inheres in the entity to which the right belongs and that entity in this case is the BCCI and its members which include the CAB. The right to produce an event includes the right to deal with such event in all manner and mode which the entity chooses. This includes the right to telecast or not to telecast the event, and by or through whom, and on what terms and conditions. No other entity, not even a department of the Government can coerce or influence this decision or obstruct the same except on reasonable grounds mentioned under Article 19(2) of the Constitution. In the event the entity chooses to televise its own events, the terms and conditions for televising such events are to be negotiated by it with any party with whom it wishes to negotiate. There is no law, bye-law, rule or regulation to regulate the conduct of the BCCI or CAB in this behalf. In the event, BCCI chooses to enter into an agreement with an agency having necessary expertise and infrastructure to produce signals, and transmit and televise the event of the quality that BCCI/CAB desires, the terms and conditions to be negotiated with such an entity, are the exclusive privilege of BCCI/CAB. No department of the Government and least of all, the MIB or DD is concerned with the same and can deny the BCCI or CAB the benefit of such right or claim, much less can the MIB or DD insist that such negotiation and finalisation only be done with it or not otherwise.
60. In the event the BCCI or CAB wishes to have the event televised outside India, what is required is that the required cameras and equipments in the field send signals to the earth station which in turn transmits the same to the appointed satellite. From the satellite, the picture is beamed back which can be viewed live by any person who has a TV set and has appropriate access to receive footprints within the beaming zone. In such case Doordarshan 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.
61. It is further contended that the right to disseminate information is a part of the fundamental right to freedom of expression. BCCI/CAB have the fundamental right to televise the game of cricket organised and conducted by them for the benefit of public at large and in particular citizens of India who are either interested in cricket or desire to be educated and/or entertained. The said right is subject only to the regulations and restrictions as provided by Article 19(2) of the Constitution.
62. At no other stage either 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 the case of telecasting sports events like cricket matches. It is urged that the sole ground on which DD/MIB is seeking to obstruct and/or refuse the said fundamental right is that DD has the exclusive privilege and monopoly to broadcast such an event and that unless the event is produced, transmitted and telecast either by DD itself or in collaboration with it on its own terms and conditions and after taking signals 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.
63. 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).
64. The BCCI and CAB have a right under Article 19(1)(a) to produce, transmit, telecast and broadcast their event directly or through its agent. The right to circulate information is a part of the right guaranteed under Article 19(1)(a). Even otherwise, the viewers and persons interested in sports by way of education, information, record and entertainment have a right to such information, knowledge and entertainment. The content of the right under Article 19(1)(a) reaches out to protect the information of the viewers also. In the present case, there is a right of the viewers and also the right of the producer to telecast the event and in view of these two rights, there is an obligation on the part of the Department of Telecommunication to allow the telecasting of the event.
65. It is then contended that the grant of a licence under Section 4 of the Act is a regulatory measure and does not entitle MIB either to deny a licence to BCCI/CAB for the purposes of production, transmission and telecasting sports events or to impose any condition unrelated to Article 19(2). If such denial or imposition is made, it would amount to a prohibition. Hence the MIB is obliged and duty-bound in law to grant licence against payment of fees related to and calculated on the basis of user of time only, as has been standardized and not otherwise. Any other method applied by MIB/DD would be violative of Article 19(1)(a). The grant of licence under Section 4 of the Act has thus to be harmoniously read with the right of the citizen under Article 19(1)(a). The Constitution does not visualize any monopoly in Article 19(1)(a). Hence DD cannot claim the same nor can the commercial interest of DD or claim of exclusivity by it of generation of signals be a ground for declining permission under Section 4 of the Act. Hence the following restrictions sought to be imposed fall outside the ambit of Article 19(2) and are unconstitutional. The restrictions are:
(a) That unless BCCI or CAB televises the matches in collaboration with DD, a licence shall not be granted.
(b) DD alone will be the host broadcaster of the signals and BCCI/CAB or its agency must take the signal from DD alone; and
(c) Unless the BCCI or CAB accepts the terms and conditions imposed by DD, the production of signal and transmission and telecast thereof shall not be permitted.
66. It is further contended that there is no monopoly in relation to what viewer must today view and the American decisions relied upon on behalf of MIB have no bearing on the present state of affairs. Satellite can beam directly on to television sets through dish antenna all programmes whose footprints are receivable in the country. Further, anyone 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 organisations 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 organisations.
67. Further, the non-availability of channel is of no consequence in the present days of technological development. Any person intending to telecast/broadcast an event can do so directly even without routing the signals through the channels of DD or MIB. What is required to ensure is that the secured channels are not interfered with or overlapped. On account of the availability of innumerable satellites in the geo-stationary orbit of the Hemisphere, the signals can directly be uplinked through any of the available transponders of satellite whose footprints can be received back through appropriate electronic device. As a matter of fact, beaming zone of only 3 satellites parked 3000 kms above the surface of the earth can cover the entire Hemisphere. Moreover, due to technological developments, frequency is becoming thinner and thinner and as a result, availability of frequencies has increased enormously and at present there are millions of frequencies available. In order to ensure that none of the footprints of any satellite overlaps the footprint of other satellite, each and every satellite is parked at a different degree and angle. Hence, there is no resource crunch or inbuilt restriction on the availability of electronic media, as contended by MIB. In this connection it is also pointed out that there is a difference in the right spelt out by Article 19(1)(a) of our Constitution and that spelt out by the First Amendment of the American Constitution.
68. It is also contended that in no other country the right to televise or broadcast is in the exclusive domain of any particular body. In this connection, a reference is made to various instances in other countries where the host broadcaster has been other than the domestic network, which instances are not controverted. It is also urged that there is no policy of the Government of India as urged on behalf of the MIB that telecasting of sporting events would be within the exclusive domain and purview of DD/MIB who alone would market their rights to other authorities in whole or in part. It is pointed out that the extract from the minutes of the meeting of the Committee of Secretaries held on 12-11-1993 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.
69. It is also urged that even public interest or interest of general public cannot be a ground for refusal or for the imposition of restrictions or for claiming exclusivity in any manner whatsoever. Such restriction, if imposed will be violative of Article 19(1)(a). To suggest that power to grant a licence shall not be exercised under any circumstances because of the policy of the Government, is arbitrary inasmuch as the power conferred is not being used for the purpose for which it has been conferred.
70. It is then contended that both BCCI and CAB are non-profit-making organisations and their sole object is to promote the game of cricket in this country and for that purpose not only proper and adequate infrastructures are required to be erected, built and maintained, but also huge expenses have to be incurred to improve the game which includes, amongst others, grant of subsidies and grants to the Member Associations, upgradation of infrastructure, training of cricketers from school level, payments to the cricketers, insurance and benevolent funds for the cricketers, training of umpires, payments to 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 permitting telecast and censorship. At least 70 per cent of the income earned through the advertisements and generated by the TV network while telecasting of the matches, is paid to the organiser apart from the minimum guaranteed money as is apparent from the various agreements entered by and between BCCI/CAB as well as by DD with other networks. DD in effect desires to snatch away the right of telecast for its own commercial interest through advertisement, and at the same time also demand money from the organisers as and by way of production fee.
71. Merely because an organisation may earn profit from an activity whose character is predominantly covered under Article 19(1)(a), it would not convert the activity into one involving Article 19(1)(g). The test of predominant character of the activity has to be applied. It has also to be ascertained as to who is the person who is utilising the activity. If a businessman were to put in an advertisement for simpliciter commercial activity, it may render the activity, the one covered by Article 19(1)(g). But even newspapers or a film telecast or sports event telecast will be protected by Article 19(1)(a) and will not become an activity under Article 19(1)(g) merely because it earns money from advertisements in the process. Similarly, if the cricket match is telecast and profit is earned by the licensing of telecasting right and receipts from advertisements, it will be an essential element for utilisation and fulfilment of its object. The said object cannot be achieved without such revenue.
74. It will be apparent from the contentions advanced on behalf of MIB that their main thrust is that the right claimed by the BCCI/CAB is not the right of freedom of speech under Article 19(1)(a), but a commercial right or the right to trade under Article 19(1)(g). The contention is based mainly on two grounds, viz., there is no free-speech element in the telecast of sports and secondly, the primary object of the BCCI/CAB in seeking to telecast the cricket matches is not to educate and entertain the viewer but to make money.
75. 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 is both individual and collective expression. It may be true that what is protected by Article 19(1)(a) is an expression of thought and feeling and not of the physical or intellectual prowess or skill. It is also true that a person desiring to telecast sports events when he is not himself a participant in the game, does not seek to exercise his right of self-expression. However, the right to freedom of speech and expression also includes the right to educate, to inform and to entertain and also the right to be educated, informed and
entertained. The former is the right of the telecaster and the latter that of the viewers. The right to telecast sporting event will therefore also include the right to educate and inform the present and the prospective sportsmen interested in the particular game and also to inform and entertain the lovers of the game. Hence, when a telecaster desires to telecast a sporting event, it is incorrect to say that the free-speech element is absent from his right. The degree of the element will depend upon the character of the telecaster who claims the right. An organiser such as the BCCI or CAB in the present case which are indisputably devoted to the promotion of the game of cricket, cannot be placed in the same scale as the business organisations whose only intention is to make as large a profit as can be made by telecasting the game. Whereas it can be said that there is hardly any free-speech element in the right to telecast when it is asserted by the latter, it will be a warped and cussed view to take when the former claim the same right and contend that in claiming the right to telecast the cricket matches organised by them, they are asserting the right to make business out of it. The sporting organisations such as BCCI/CAB which are interested in promoting the sport or sports are under an obligation to organise the sports events and can legitimately be accused of failing in their duty to do so. The promotion of sports also includes its popularization through all legitimate means. For this purpose, they are duty-bound to select the best means and methods to reach the maximum number of listeners and viewers. Since at present, radio and TV are the most efficacious methods, thanks to the technological development, the sports organisations like BCCI/CAB will be neglecting their duty in not exploring the said media and in not employing the best means available to them to popularize the game. That while pursuing their objective of popularizing the sports by selecting the best available means of doing so, they incidentally earn some revenue, will not convert either them into commercial organisations or the right claimed by them to explore the said means, into a commercial right or interest. It must further be remembered that sporting organisations such as BCCI/CAB in the present case, have not been established only to organise the sports events or to broadcast or telecast them.
The organisation of sporting events is only a part of their various objects, as pointed out earlier and even when they organise the events, they are primarily to educate the sportsmen, to promote and popularize the sports and also to inform and entertain the viewers. The organisation of such events involves huge costs. Whatever surplus is left after defraying all the expenses is ploughed back by them in the organisation itself. It will be taking a deliberately distorted view of the right claimed by such organisations to telecast the sporting event to call it an assertion of a commercial right. Yet the MIB has chosen to advance such contention which can only be described as most unfortunate. It is needless to state that we are, in the circumstances, unable to accept the ill-advised argument. It does no credit to the Ministry or to the Government as a whole to denigrate the sporting organisations such as BCCI/CAB by placing them on a par with business organisations sponsoring sporting events for profit and the access claimed by them to telecasting as assertion of commercial interest.
76. The second contention of MIB is based upon the propositions laid down by the US Supreme Court, viz., there are inherent limitations imposed on the right to telecast/broadcast as there is scarcity of resources, i.e., of frequencies and therefore the need to use them in the interest of the largest number. There is also a pervasive presence of electronic media such as TV. It has a greater impact on the minds of the people of all ages and strata of the society necessitating the prerequisite of licensing of the programmes. It is also contended on that account that the licensing of frequencies and consequent regulation of telecasting/
broadcasting would not be a matter governed by Article 19(2). Whereas Article 19(2) applies to restrictions imposed by the State, the inherent limitations on the right to telecast/broadcast are imposed by nature.
77. 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 the United States, there is no Central Government-owned or controlled broadcasting centre. There is only a Federal Commission to regulate broadcasting stations which are all owned by private broadcasters. Secondly, the American Constitution does not explicitly state the restrictions on the right of freedom of speech and expression as our Constitution does. Hence, the decisions in question have done no more than impliedly reading such restrictions. The decisions of the US Supreme Court, therefore, in the context of the right claimed by the private broadcasters are irrelevant for our present purpose. In the present case what is claimed is a right to an access to telecasting specific events for a limited duration and during limited hours of the day. There is no demand for owning or controlling a frequency. Secondly, unlike in the cases in the US which came for consideration before the US Supreme Court, the right to share in the frequency is not claimed without a licence. Thirdly, the right to use a frequency for a limited duration is not claimed by a business organisation to make profit, and lastly – and this is an important aspect of the present case, to which no reply has been given by the MIB – there is no claim to any frequency owned and controlled by the Government. What is claimed is a permission to uplink the signal created by the organiser of the events to a foreign satellite.
78. There is no doubt that since the airwaves/frequencies are a public property and are also limited, they have to be used in the best interest of the society and this can be done either by a central authority by establishing its own broadcasting network or regulating the grant of licences to other agencies, including the private agencies. What is further, the electronic media is the most powerful media both because of its audio-visual impact and its widest reach covering the section of the society where the print media does not reach. The right to use the airwaves and the content of the programmes, therefore, needs regulation for balancing it and as well as to prevent monopoly of information and views relayed, which is a potential danger flowing from the concentration of the right to broadcast/telecast in the hands either of a central agency or of few private affluent broadcasters. That is why the need to have a central agency representative of all sections of the society free from controls both of the Government and the dominant influential sections of the society. This is not disputed. But to contend that on that account the restrictions to be imposed on the right under Article 19(1)(a) should be in addition to those permissible under Article 19(2) and dictated by the use of public resources in the best interests of the society at large, is to misconceive both the content of the freedom of speech and expression and the problems posed by the element of public property in, and the alleged scarcity of, the frequencies as well as by the wider reach of the media.
If the right to freedom of speech and expression includes the right to disseminate information to as wide a section of the population as is possible, the access which enables the right to be so exercised is also an integral part of the said right. The wider range of circulation of information or its greater impact cannot restrict the content of the right nor can it justify its denial. The virtues of the electronic media cannot become its enemies. It may warrant a
greater regulation over licensing and control and vigilance on the content of the programme telecast. However, this control can only be exercised within the framework of Article 19(2) and the dictates of public interests. To plead for other grounds is to plead for unconstitutional measures. It is further difficult to appreciate such contention on the part of the Government in this country when they have a complete control over the frequencies and the content of the programme to be telecast. They control the sole agency of telecasting. They are also armed with the provisions of Article 19(2) and the powers of pre-censorship under the Cinematograph Act and Rules. The only limitation on the said right is, therefore, the limitation of resources and the need to use them for the benefit of all. When, however, there are surplus or unlimited resources and the public interests so demand or in any case do not prevent telecasting, the validity of the argument based on limitation of resources disappears. It is true that to own a frequency for the purposes of broadcasting is a costly affair and even when there are surplus or unlimited frequencies, only the affluent few will own them and will be in a position to use it to subserve their own interest by manipulating news and views. That also poses a danger to the freedom of speech and expression of the have-nots by denying them the truthful information on all sides of an issue which is so necessary to form a sound view on any subject. That is why the doctrine of fairness has been evolved in the US in the context of the private broadcasters licensed to share the limited frequencies with the central agency like the FCC to regulate the programming. But this phenomenon occurs even in the case of the print media of all the countries. Hence the body like the Press Council of India which is empowered to enforce, however imperfectly, the right to reply. The print media further enjoys as in our country, freedom from pre-censorship unlike the electronic media.
80. The third contention advanced on behalf of the MIB is only an extended aspect of the first contention. It is based on the same distorted interpretation of the right claimed. It proceeds on the footing that the BCCI/CAB is claiming a commercial right to exploit the sporting event when they assert that they have a right to telecast the event through an agency of their choice. It is even contended on behalf of the MIB that this amounts to a device for a non-citizen to assert rights under Article 19(1)(a) which are not available to him.
82. The fourth contention is that, as held by the US Supreme Court, the freedom of speech has to be viewed also as a right of the viewers which has paramount importance, and the said view has significance in a country like ours. To safeguard the rights of the viewers in this country, it is necessary to regulate and restrict the right to access to telecasting. There cannot be any dispute with this proposition. We have in fact referred to this right of the viewers in another context earlier. True democracy cannot exist unless all citizens have a right to participate in the affairs of the polity of the country. The right to participate in the affairs of the country is meaningless unless the citizens are well informed on all sides of the issues, in respect of which they are called upon to express their views. One-sided information, disinformation, misinformation and non-information all equally 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 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 adequately and truthfully is a part of the right of the viewers under Article 19(1)(a). We are, however, unable to appreciate this contention in the present context since the viewers’ rights are not at all affected by the BCCI/CAB, by claiming a right to telecast the cricket matches. On the other hand, the facts on record show that their rights would very much be trampled if the cricket matches are not telecast through Doordarshan, which has the monopoly of the national telecasting network. Although, there is no statistical data available (and this is not a deficiency felt only in this arena), it cannot be denied that a vast section of the people in this country is interested in viewing the cricket matches. The game of cricket is by far the most popular in all parts of the country. This is evident from the overflowing 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 TV set of their own crowd around TV sets of others when the matches are on. This is not to mention the number of transistors and radios which are on during the match-hours. In the face of these revealing facts, it is difficult to understand why the present contention with regard to the viewers’ right is raised in this case when the grant of access to BCCI/CAB to telecast cricket matches was in the interest of the viewers and would have also contributed to promote their rights as well.
83. The last argument on behalf of the MIB is that since in the present case, DD has not refused to telecast the event, its monopoly to telecast cannot be challenged and in fact no such contention was raised by the BCCI/CAB. We are afraid that this will not be a proper reading of the contentions raised by BCCI/CAB in their pleadings both before the High Court and this Court. Undisputed facts on record show that Doordarshan claimed exclusive right to create host broadcasting signal and to telecast it on the terms and conditions stipulated by it or not at all. MIB even refused to grant uplinking facilities when the terrestrial signal was being created by the CAB with their own apparatus, i.e., the apparatus of the agency which they had engaged and when the use of any of the frequencies owned, controlled or commanded by DD or the Government, was not involved. Since BCCI/CAB were the organisers of the events, they had every right to create terrestrial signals of their event and to sell it to whomsoever they thought best so long as such creation of the signals and the sale thereof was not violative of any law made under Article 19(2) and was not an abuse of the frequencies which are a public property. Neither DD nor any other agency could impose their terms for creating signals or for telecasting them unless it was sought through their frequencies. When Doordarshan refused to telecast cricket matches except on their terms, the BCCI/CAB turned to another agency, in the present case a foreign agency, for creating the terrestrial signal and telecasting it through the frequencies belonging to that agency. When Doordarshan 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 Doordarshan had not refused to telecast the events. To insist on telecasting events only on one’s unreasonable terms and conditions and not otherwise when one has the monopoly of telecasting, is nothing but refusal to telecast the same. DD could not do it except for reasons of non-availability of frequencies or for grounds available under Article 19(2) of the Constitution or for considerations of public interest involved in the use of the frequencies as public property. The fact that Doordarshan was prepared to telecast the events only on its terms shows that the frequency was available.
Hence, scarcity of frequencies or public interests cannot be pressed as grounds for refusing to telecast or denying access to BCCI/CAB to telecasting. Nor can Doordarshan plead encroachment on the right of viewers as a ground since the telecasting of events on the terms of Doordarshan cannot alone be said to safeguard the right of viewers in such a case and in fact it was not so.
122. We, therefore, hold as follows:
(i) The airwaves or frequencies are a public property. Their use has to be controlled and regulated by a public authority in the interests of the public and to prevent the invasion of their rights. Since the electronic media involves the use of the airwaves, this factor creates an inbuilt restriction on its use as in the case of any other public property.
(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 telecasting for the purpose. However, this right to have an access to telecasting has limitations on account of the use of the public property, viz., the airwaves, involved in the exercise of the right and can be controlled and regulated by the public authority. This limitation imposed by the nature of the public property involved in the use of the electronic media is in addition to the restrictions imposed on the right to freedom of speech and expression under Article 19(2) of the Constitution.
(iii)The Central Government shall take immediate steps to establish an independent autonomous public authority representative of all sections and interests in the society to control and regulate the use of the airwaves.
(iv) Since the matches have been telecast pursuant to the impugned order of the High Court, it is not necessary to decide the correctness of the said order.
(v) The High Court will now apportion between the CAB and DD the revenues generated by the advertisements on TV during the telecasting of both the series of the cricket matches, viz., the Hero Cup, and the International Cricket Matches played in India from October to December 1994, after hearing the parties on the subject.
