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Full Case Details
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?
- 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. - 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
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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. - 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. - 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 cablelinked 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
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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). - 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 selffulfilment. 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. - 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. - 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). - 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
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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. - 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. - 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
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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. - 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 gigacycles per second are propagated with an artificial guide, the Central Government cannot
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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. - 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. - 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.
255 - 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. - 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. - 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. - 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
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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. - 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. - 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. - 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
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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. - 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. - 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.
258 - 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. - 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. - 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, 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. - 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
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(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 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. - 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. - 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. - 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.
260 - 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. - 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. - 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. - 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
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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. - 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/
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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. - 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. - 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
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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. - 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. - 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 ½ 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
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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. - 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.
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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. - 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.
