DELHI DEVELOPMENT AUTHORITY v. ! SKIPPER CONSTRUCTION AND ANR. ETC.

rights of an individual under Art. 19(1)(a) are those which cl. (2) A of Art 19 permits and no other" . .../...., In Bennett Coleman & Co. & Ors. v. Union of India & Ors., f1972] 2 SCC 788, the majority of the Constitution Bench held that newspapers I should be left free to determine their pages, their circulation and their new B edition within their quota which has been fixed fairly. It is an abridgment of freedom of expression to prevent a common ownership unit from starting a new edition or a new newspaper. A common ownership unit should be free to start a new edition out of their allotted quota· and it would . _..__ be logical to say that such a unit can use its allotted quota for changing its page structure and circulation of different editions of same paper. The c compulsory reduction to ten pages offends Article 19(1)(a) and infringes the freedom of speech and expression. Fixation of page limit will not only depriv~ the petitioners of their economic viability, but will also restrict the freedom of expression by reason of the compulsive reduction of page level entailing reduction of circulation and including the area of coverage for D news and views. Loss of advertisements may not only entail the closing down, but will also affect the circulation and thereby impinge on freedom >-~ of speech and expression. The freedom of press entitles newspapers to achieve any volume of circulation. It was further held that the machinery of import control cannot be utilised to curb or control circulation or growth or freedom of newspapers. The news print control policy was in effect a E newspaper control policy and a news paper control policy is ultra vires the Import Control Act and the Import Control Order. The majority further held that by the freedom of press is meant the right of citizens to speak and publish and express their views. The freedom of the press embodies the right of the people to read and it is not anti-thetical to the right of the F -~ people to speak and express. The freedom of speech and expression is not only in the volume of circulation but also in the volume of news and views. The press has the right of free publication and their circulation without any obvious restraint on publication. If the law were to single out press for laying down prohibitive burdens on it that would restrict circulation, penalise freedom of choice as to personnel, prevent newspapers from being G I started and compel the press to Government aid. This would violate Article I 19(1) (a) and would fall outside the protection afforded by Article 19(2). -k-

- The First Amendment to the American Constitution contains no exception like our Article 19(2). Therefore, American decisions have evolved their own exceptions. The American decisions establish that a Government H

1054 SUPREME COURT REPORTS {1995) l S.C.R. ·

A regulation is justified in America as an important essential Government . interest which is unrelated to the suppression of free expression. The true test is whether the effect of the impugned action is to take away or abridge fundamental rights. The object of the law or executive action is irrelevant when it is established that the petitioner's fundamental right is infringed.

B In Indian Express Newspapers (Bombay) Pvt. Ltd. & Ors. v. Union of India & Ors., [1985) 1SCC641, the Court held that the expression "freedom of the press" has not been used in Article 19, but it is comprehended within Article 19(l)(a). This expression means a freedom from interference from authority which would have the effect of interference with the content and circulation of newspapers. There cannot ·be any interference with that freedom in the name of public interest. The purpose of the press is to advance the public interest by publishing facts and opinions without which democratic electorate cannot make responsible judgments. Freedom of the press is the heart of social and political intercourse. It is the primary duty of the Courts to uphold the freedom of the press and invalidate all laws or administrative actions which interfere with it contrary to the constitutional mandate. The freedom of expression has four broad social purposes to serve; (i) it helps an individual to attain self fulfilment, (ii) it assists in the discovery of truth, (iii) it strengthens the capacity of an individual in participating in decision-making and (iv) it provides a mech~sm by which it would be possible to establish a reasonable balance between stability and social change. All members.of the society should be able to form their Qwn beliefs and commtinicate them freely to others. In sum, the fundamental principle involved here is the people's right to know. Freedom of speech .and expression should, therefore, receive a generous support from all those who believe in the participation of people in the administration. It is on account of this special interest which society has in the freedom of speech ~-

and expression that the llPProach of the Government should be more cautious while levying taxes on matters concerning newspaper industry than while levying taxes on other matters. The Courts are there always to strike down curtailment of freedom of press by unconstitutional means. The G delicate task of determining when it crosses from the 'area of profession, occupation, trade, business or industry into the area of freedom of expres- sion and interferes with that freedom is entrusted to the Courts. In deciding

H the reasonableness of restrictions imposed on any fundamental right the Court should take into consideration the nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the ...

MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [SAWANT, J.) 1055

disproportion of the imposition and the prevailing conditions including the social values whose needs are sought to be satisfied by means of the ft restrictions. The imposition of a tax like the custom duty on news print is an imposition of tax on knowledge and would virtually amount to a burden imposed on a man for being literate and for being conscious of his duty as a citizen to inform himself of the world around him. The pattern of the law imposing custom duty and the manner in which it is operated, to a certain extent, exposes the citizens who are liable to pay the custom duties to the vagaries of executive discretion.

In Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana and others, [1988) 3 sec 410, it was held that the right of citizens to exhibit c films on Doordarshan subject to the terms and conditions to be imposed by .the Doordarshan is a part of the fundamental· right of freedom of expression guaranteed under Article 19 (1) (a) which can be curtailed only under circumstances set out under Article 19(2}. The right is similar to the right of citizen to public his views through any other media· such as newspapers, magazines, advertisment hoardings etc. subject to the terms and conditions of the owners of the media. The freedom of expression is a preferred right which is always very zealously guarded by the Supreme Court. However, on the question whether a citizen has a fundamental right to establish a private broadcasting station or T.V. Centre, the Court reserved its opinion for decision in an appropriate case. The matter had come up before this Court against an interim injunction order issued by the High Court as a result of which 12th and 13th episodes of the film "Honi-Anhoni" could not be telecast on the scheduled dates. The Court held that itwas not the case or"the writ petitioners before the High Court that the exhibition of the said serial was in contravention of any specific law or direction issued by the Government. They had also not alleged that the Doordarshan had shown any undue favour to the· appellant and the sponsoring institutions resulting in any financial loss to the public exche- quer. The objection to the exhibition of the film had been raised by them on the basis that it was likely to spread false or blind beliefs among the members o( the public. They had not asserted any right conferred on them by any statute or acquired by them under a contract which entitled them to secure an order of temporary injunction. The appellant before this court had denied that the exhibition of the serial was likely to affect prejudicially the wellbeing of the people. The Union of India and Doordarshan had pleaded that the serial was being telecast after following the prescribed H

1056 SUPREME COURT REPORTS [1995] l $.C.R.

A procedure and taking necessary precautions. The writ petitioners had not produced any material apart from their own statements to show that the exhibition of the serial was prima facie prejudicial to the community. This court held that the High Court had overlooked that the issue of an order -- )

of interim injunction would infringe the fundamental right of the producer of a serial. In the absence of any prima facie evidence of gross prejudice B that was likely to be caused to the public generally by the exhibition of the serial, it was not just and proper to issue an order of temporary injunction.

In S. Rangarajan v. P. Jagjivan Ram & Ors., [1989] 2 SCC 574, it was held that the freedom of speech under Article 19(1) (a) means the right to -,..L... · C express one's opinion by words of mouth, writing, printing, picture or in other manner. It would thus include the freedom of communication and their right to propagate or publish opinion. The communication of ideas could be made through any medium, newspapers, magazine or movie. But this right is subject to reasonable restriction in the large interests of the community and the country set out in Article 19(2). These restrictions are intended to strike a proper balance between the liberty guaranteed and the social interests specified in Article 19(2). This is the difference between the First Amendment to the U.S. Constitution and Article 19 of our 7-"- Constitution. The decisions bearing on the First Amendment are, there- fore, not useful to us except the broad principle and purpose of the guarantee. The Court, in this connection, referred to the U.S. decisions in Mutual Film Corporation v. Industrial Commission, 236 US 230 (1915), Burstyn v. Wilson, 343 US 495 and Schenck v. United States, 249 US 47. The Court further held that there should be a compromise between the interest of freedom of expression and social uiterests. The Court cannot simply balance the two interests as if they are of. equal weight. The Court's F commitment to freedom of expression demands that it cannot be sup- pressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The exi}ression of thought · should be intrinsically dangerous to the public interests. It should be inseparably locked up with the action contemplated like the equivalent of a "spark in . a powder keg." Though movie enjoys the guarantee under Article 19(1)(a), there is one significant difference between the movie and other modes of communication. Movie motivates thought and action and assures a high degree of attention and retention. In view of the scientific improvements in. photography and production, the present movie is a powerful means ,9f_

, MIN. OF INFORMATION AND BROADCASilNG v. CRICKET ASSN. OP BENGAL [SAWANT, J.) 1057

rommunication. It has a unique capacity to disturb and arouse feelings. It A has much potential for evil as it has for good. With these qualities and since it caters for mass audience who are generally not selective about what they watch, the movie cannot be equated with other modes of communication. It cannot be allowed to function in a free marketplace just as does the newspaper or magazines. Censorship by prior restraint is, therefore, not only desirable but also necessary. But the First Amendment to the U.S. B Constitution does not permit any prior restraint, since the guarantee offree speech is in unqualified terms. Censorship is permitted mainly on the ground of social interests specified under Article 19 (2) with emphasis on maintenance of values and standards of society. Therefore, censorship with prior restraint must necessarily be reasonable that could be saved by the well accepted principles of judicial review. The standard to be applied by the board or courts for judging the film should be that of an ordinary man of common sense and prudence and i:.ot that of an out of the ordinary or hypersensitive man. The board should exercise considerable circumspec- tion on movies affecting the morality or decency of our people and cultural heritage of the country. The moral values in particular, should not be allowed to be sacrificed in the guise of social change or cultural assimila- tion. The path of right conduct shown by the great sages and thinkers of India and the concept of 'Dharam' (righteousness in every respect), which are the bedroCk of our civilisation, should not be allowed to be shaken by unethical standards. But this does not mean that the censors should have an orthodox or conservative outlook. Far from it, they must be responsive to social change and they must go with the current climate. However, the censors may display more sensitivity to movies which will have a markedly deleterious effect to lower the moral standards of those who see it.

However, the producer· may project his own message which the others may not approve of it. But he has a right to 'think out' and put the counter-appeals to reason. It is a part of a democratic give-and-take to which one could complain. The State cannot prevent open discussion and open expression, however hateful to its policies. Everyone has a fundamen- tal right to form his own opinion on any issue of general concern. He can form and inform by any legitimate means. The democracy is a government __ , by the people via open discussion. The democratic form of government itself demands its citizens an active and intelligent participation in the affairs of the community. The public discussion with people's participation is a basic feature and a rational process of democracy which distinguishes H

1058 SUPREME COURT REPORTS (1995) 1 S.C.R.

A it from all other forms of government.

Dealing with the film in question, the Court further observed that the f;ilm in the present case suggests that the existing method or reservation on the basis of caste is bad and reservation on the basis of economic back- . wardness is better. The film also deprecates exploitation of people on caste consideration. This is the range and rigours of the film. There is no warrant for the view that the expression in the film by criticism of reservation policy or praising the colonial rule will affect the security of the State or sovereignty and integrity of India. There is no utterrance in the film threatening to overthrow the government by unlawful or unconstitutional means or for secession; nor is there any suggestion for imparing the integration of the country. Two Revising Committees have approved the film. The members thereof come from different walks of life with variegated experiences. They represent the cross-section of the community. They have judged the film in the light of the objectives of the Act and the guidelines provided for the purpose. There is nothing wrong or contrary to Constitution in approving the film for public exhibition. The producer or as a matter of fact, any other person has a right to draw the attention of the government and people that the existing method of reservation in educational institutions overlooks merits. ~ether this view is right or wrong is another matter altogether and at any rate, the Court is not concerned with its correctness or usefulness to the people. The Court is only concerned whether such a view could be. advocated in a film. To say that one should not be permitted to advocate that view goes against the first principle of our democracy. If the film is unobjectionable and cannot constitutionally be restricted under Article 19(2), freedom of expression p cannot be suppressed on account of threat of demonstration and proces- sions or threats of violence. That would tantamount to negation of the rule of law and a surrender to blackmail and intimidation. It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State. The State cannot plead its inability to handle the hostile audience problem. Freedom of expression which is legitimate and constitu- G tionally protected cannot be held to ransom by an intolerant group of people. The fundamental freedom under Article 19{1)(a) can be reasonab- ly restricted only for the purposes mentioned in Article 19(2) and the restriction must be justified on the anvil of necessity and not the quicksand of convenience of expediency. Open criticism of governm.ent policies and ·H operations is not a ground for restricting expression.

MIN. OP INFORMATION AND BROADCASTING v. CRICKET ASSN. OP BENGAL (SAWANT,J.) 1059

5. The views taken by this Court in the aforesaid decisions have thereafter been.repeated and. reproduced in the subsequent decisions. _.,1-.,.-

In Printers (Mysore) Ltd. & Ar.r. v. Asst. Commercial Tax Officer & Ors., [1994] 2 SCC 434, it is reiterated that the special treatment given lo the newspapers has a philosophy and historical background. Freedom of press has been placed on a higher footing than other enterprises. Though freedom of press is not expressly guaranteed as a fundamental right, it is implicit in the freedom of speech and expression.. Freedom of press has always been a cherished right in all democratic countries. Therefore, it has . 'L.. rightly been described as the Fourth Estate, the democratic credentials of a State are judged today by the extent of freedom the press enjoyed in that c State. This decision quotes from the opinion of Douglas, J. in Terminiello v. Chicago, [93 L.ed 1131: 337 US 1 (1949)) that "acceptance by Govern- ment of a dissident press is a measure of the maturity of the nation".

In Life Insurance Corporation of India v. Professor Manubhai D. Shah, D [1992] 3 SCC 637, the respondent-Executive Trustee of the Consumer )--L Education and Research Centre (CERC), Ahmedabad, after making re- search into the working of the Life Insurance Corporation (LIC), publi.Shed a study paper portraying the discriminatory practice adopted by the LIC by charging unduly high premia from those taking out life insurance policies and thus denies access to insurance coverage to a vast majority of people who cannot· afford to pay the high premium. A member of the LIC wrote a counter article and published it in the daily newspaper "Hindu". The respondent replied to the same in the said newspaper. The member of LIC then published his counter-reply in LIC's house magazine. J'he respondent requested the LIC to publish his rejoinder also in the said magazine. That request was turned down. On these facts, the respondent filed a writ petition before the High Court challenging the action of the UC, among other things, on the ground that his fundamental right under Article 19(1) (a) of the Constitution was violated by UC by refusing to publish his reply. The High Court held that under the pretext and guise of publishing a house magazine, the LIC cannot violate the fundamental rights of the petitioner. This Court endorsing the view taken by the High Court ~ held that the LIC is 'State' within the meaning of Article 12. The LIC Act requires it to function in the best interest of the community. The com- munity is, therefore, entitled to know whether or not this requirement of the statute is being satisfied in the functioning of the LIC. The respondent's H

1060 • SUPREMECOURTREPORTS [1995) 1 S.C.R.

A efforts in preparing the study paper was to bring to the notice of the community that the LIC had strayed from its path by pointing out that its premium rates were unduly high when they could be low if the LIC avoided the wasteful indulgences. The endeavour was to enlighten the community of the drawbacks and shortcoming of the LIC and to pin-point the area where improvement was needed and was possible. By denying to the B policy-holders, the information contained in the rejoinder prepared by the respondent, the LIC cannot be said to be acting in the best interest of the community. There was nothing offensive in the rejoinder which fell within the restriction clauses of Article 19(2). Nor was it prejudicial to the ~;-· members of the community or based on imaginary or concocted material. C On the basis of the fairness doctrine the LIC was under an obligation to publish the rejoinder. The respondent's fundamental right to speech and expression clearly entitled him to insist that his views on the subject should reach those. who read the magazine so that they have complete picture before them instead of a one-side or distorted picture. The Court also pointed out that the attitude of the LIC in refusing to publish the rejoinder in their magazine financed from public funds, can be described as both unfair and unreasonable - unfair becal,lSe fairness demanded that both view-points were placed before the readers and unreasonable because there was no justification for refusing publication. The monopolistic State instrumentality which survives on public funds cannot act in an arbitrary manner on the specious plea that the magazine is an in-house one and it is a matter of its exclusive privilege to print or refuse to print the rejoinder. • By refusing to print and publish the rejoind~r, the LIC had violated respondent's fundamental right. The Court must be careful to see that it does not even unwittingly aid the effort· to defeat the parties' right. Every F free citizen has an undoubted right to lay what sentiments he pleases before the public. Freedom to air one's views is the lifeline of any democratic institution and any attempt to stifle, suffocate or gag this right would sound a death-knell to democracy and would help usher in autocracy or dictatorship. This Court has always placed a broad interpretation on the value and content of Article 19 (1) (a), making it subject only to the G restrictions permissible under Article 19 (2). Efforts by intolerant authorities to curb or suffocate this fre~dom have always been firmly repelled, more so when public authorities have betrayed autocratic tenden- cies. The Court then went on to observe :

H "....... The words 'freedom of speech and expression must be

MIN. OF INFORMATION ~D BROADCASTING v. CRICKET ASSN. OF BENGAL [SAWANT, J.] 1061

broadly construed to include the freedom to circulate one's views by words of mouth or in writing or through audio- visual instrumen- ..J7- talities. It, therefore, includes the right to propagate one's views through the print media i.e., periodicals, magazines or journals or through any other communication channel e.g. the radio and the television. The right extends to the citizen being permitted to use the media to answer the criticism levelled against the view propagated by him. The print media, the radio and the tiny screen play the role of public educators, so vital to growth of a healthy democracy. These communication channels are great purveyors of news and views and make considerable impact on the minds of the readers and viewers and are known to mould public opinion on vital issues of national importance. Modern communication mediums advance public interest by informing the public of the events and developments that have taken place and thereby educat- ing the voters, a role considered significant for the vibrant function- ing of a democracy. Therefore, in any set-up, more so in a D democratic set-up like ours, dissemination of news and views for popular consumption is a must and any attempt to deny the same must be frowned upon unless it falls within the mischief of Article 19 (2). This freedom must, however, be exercised with circumspec- tion and care must be taken not to trench on the rights of other citizens or to the jeopardise public interest. E

A constitutional provision is never static, it is ever-evolving and ever-changing and, therefore, does not admit of a narrow, pedantic or syllogistic approach. The Constitution-makers employed broad

-- . phraseology while drafting the fundamental rights so that they may be able to cater to the needs of a changing society. Therefore, constitutional provisions must receive a broad interpretation and the scope and ambit of such provisions, in particular the fundamen- tal rights, should not be cut down· by too astute or too restricted F

an approach, unless the context otherwise requires. G The facts in the other case which W?S disposed of simultaneously by the same judgment were that the Doordarshan refused to telecast a documentary film on the Bhopal Gas Disaster titled 'Beyond Genocide' produced by the respondent-Cinemart Foundation on the grounds that (i) the film was outdated, (ii) it had lost its relevance, (iii) it lacked moderation H

1062 SUPREME COURT REPORTS [1995] 1 S.C.R.

A and restraint, (iv) it was not fair and balanced, (v) political parties were raising various issues concerning the tragedy, (vi) claims for compensation ·by the victims were sub judice, (vii) the film was likely to create commotion in the already charged atmosphere and (viii) the film criticised the action of the State Government and it was not permissible under the guidelines. The respondent filed a writ petition in the High Court on the ground of violation of his fundamental right under Article 19 (l)(a) and for a man- damus to the Doordarshan to telecast the film. The High Court held that \ '- the respondent's right under Article 19(1)(a) obliged the Doordarshan to telecast the film and directed the Doordarshan to telecast the film at a time and date oonvenient to it keeping in view the public interest, and on such terms and conditions as it would like to impose in accordance with the law. In the appeal against the said decision filed in this Court, the Court held that once it has recognised that the film maker has the fundamental right under Article 19(1)(a) to exhibit the film, the onu5 lies on the party which claimS that it was entitled to refuse enforcement of this right by virtue of law made under Article 19(2) to show that the film did not conform to requirements of that law. Doordarshan being a State-controlled agency funded by public funds could not have denied access to screen except on valid grounds. The freedom conferred on a citizen by Article 19 (l)(a) includes the freedom to communicate one's ideas or thoughts through a E newspaper, a magazine or a movie. Traditionally, prior restraints, regard- less of their form, are frowned upon as threats to freedom of expression since they contain within themselves forces which if released have the potential of imposing arbitrary and at times direct conflict with the right of another citizen. Censorship by prior restraint, therefore, seems justified for the protection of the society from the ill-effects that a motion picture may produce if unrestricted exhibition is allowed. Censorship is thus per- mitted to protect social interests enumerated in Article 19(2) and Section 5-B of the Cinematograph Act. For this reason, need for prior restraint. has been recognised and our laws have assigned a specific role to the censors, as ~uch is the need in a rapidly changing societal structure. But since permissible restrictions, albeit reasonable, are all the same restrictions, they are bound to be viewed as anathema, in that, they are in the nature of curbs or limitations on the exercise of the right and· are, therefore, bound to be viewed with suspicion, thereby throwing a heavy burden on the authorities that seek to impose them to show that the restrictions are reasonable and permissible in law. Such censorship must be reasonable and must answer . H

MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [SAWANT, J.] 1063 -

the test of Article 14. A.

. 6. In this connection, it will be interesting also to know the content of the right tQ freedom ·of speech and expression under the First Amend- ment to the American Constitution where the freedom of press is exclusive- ly mentioned as a part of the said right unlike in Article 19(1) (a) of our Constitution. Further, the restrictions on the right are not spelt out as in B our Constitution under Article 19 (2). But the U.S. Supreme Court has been reading some of them as implicit in the right. In principle, they make no difference to the content of the right to the freedom of speech and expression under our Constitution. c In National Broadcasting Company v. United States of America, (319 US 190-238: 87 L.ed 1344), it was held inter alia, that the wisdom of regulations adopted the Federal Communications Commission is not a matter for the courts, whose duty is at an end when they find that the action of the Commission was based upon fmdings supported by evidence, and D was made pursuant to authority granted by Congress.

In Joseph Burstyn v. Lewis A. Willson, (343 US 495: 96 L ed 1098) a licence granted for the exhibition of a motion picture was rescinded by the appropriate New York authorities on the ground that the picture was "sacrilegious" within the meaning of the statute requiring the denial of a E licence if a film was "sacrilegious". The statute was upheld by the State courts. The Supreme Court unanimously reversed the decision of the State Courts. Disapproving a contrary theory expressed in Mutual Film Corp. v. Industrial Com. of Ohio, [236 US 2230: 59 L.ed 442), six members of the,: .,,,,.. -,, Supreme Court in an opinion of Clerk, J. held that the basic principles of · F freedom of speech and press applied to motion pictures, even though their production, distribution, and exhibition is a large scale business conducted for profit. The Court recognised that motion pictures are not necessarily subject to the precise rules governing any other particular method of expression, but found it not necessary to decide whether a State may censor motion pictures under a clearly drawn statute, and limited its decision to G the holding that the constitutional guarantee of free speech and press ~ prevents a state from banning a film on the basis of a censor's conclusion that it is "sacrilegious". Reed, J. in a concurrent opinion emphasised that the question as to whether a state may establish a system for the licensing of motion pictures was not foreclosed by the court's opinion. Frankfurter, H

1064 SUPREME COURT REPORTS [1995} 1 S.C.R.

A J. with Jackson and Burton, JJ. held that the term "sacrilegious" as used in the statute was unconstitutionally vague.

In Red Lion Broadcasting Co. ~tc. et. al. v. Federal Communication Commission et. al. and United States et. al. v. Radio Television News Directors Association et. al., [395 US 367: 23 Led. 2d 371} which two cases B were disposed of by common judgment, the facts wer·e that in the first case, the Broadcasting-Company carried as a part of "Christian Crusade" series, a 15-minute broadcast in which a third person's honestly and character were attacked. His demand for free reply time was refused by the broad- casting station. Federal Communications Commission (FCC) issued a dec- C laratory order to the effect that the broadcasting station had failed to meeting its obligation under the FCC's fairness doctrine. The Court upheld the FCC's directions.

In the second case, the FCC after the commencement of the litigation in the same case made the personal attack aspect of the fairness doctrine D more precise and more readily enforceable. The Court upheld the FCC's rules overruling the view taken by the Court of Appeals that the rules were unconstitutional as abridging the freedom of speech and press.

The Court dealing with the two cases held:

E "Just as the Government may limit the use of sound-amplifying equipment potentially so noisy that it drowns out civilized private speech, so may the Government limit the of broadcast equipment. The right of free speech of a broadcaster, the user of a sound track, or any other individual does not embrace a right to snuff out the free speech of others.

xxxxxxxxx

.......... Beyond this, however, because the frequencies reserved for public broadcasting were limited in number, it was essential for the government to tell some applicants that they could not broad- cast at all because there was room for· only a few.

xxxxxxxxx

Where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit

MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL (SAWANT, J.J 1065

an unabridgeable First Amendment right to broadcast comparable to the right of over individual to speak, write, or publish. If 100 persons wa!'t broadcast licences but there are only 10 frequencies to allocate, all of them may have the same "right" to a license; but if there is to be any effective communication by radio, only a few can be licensed and the rest must be barred from the airwaves. It would be strange if the First Amendment, aimed at protecting and furthering communications, prevented the government from making radio communication possible by requiring licenses to broadcast and by limiting the number of licenses so as not to overcrowd the spectrum. c This has been the consistent view of the Court. Congress unquestionably has the power to grant and deny licenses and to eliminate existing stations... No one has a First Amendment right a to license or to monopolize a radio frequency; to deny a station license because "the public interest" requires it "is not a denial of free speech." D By the same token, as far as the First Amendment is concerned those who are licensed stand no better then those to whom licenses are refused. A license permits broadcasting, but the licensee has no Constitutional right to the one who holds the licensee or to monopolize a radio frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment whieh prevents the Government from requiring a licensee to share his frequency with others and to conduct himself as a proxy or fiduciary with obliga- tions to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves.

This is not to say that the First Amendment is irrelevant to public broadcasting. On the contrary, it has a major role to play as the Congress itself recognized, which forbids FCC interference with "the right of free speech by means of radio communication."

Because of the scarcity of ratio frequencies, the Government is permitted to put restraints on licensees in favour of others whose views should be expressed on this unique medium. But the people as a whole retain their interest in free speech by radio and their H

1066 SUPREME COURT REPORTS (1995) 1 S.C.R.

' A collective right to have the medium function consistently with the ends and purposes of the First Amendme~L It is the right of the viewers and listeners, not the right -of the broadcasters, which is paramount.....

It is the purpose -of the First Amendment to preserve an B uninln"bited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, · whether it be by the Government itself or a private licensee....• It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is c crucial here. That right may not constitutionally be abridged either by eon&ress or by the FCC..•

......... As we have said, the Frrst Amendment confers no right on licensees to prevent others from broadcasting on 'their' frequen- cies and no right to an unconditional monopoly of a scarce - D resource which the Government has denied others the right to use. -

xxxxxxxxx

Nor can we say that it is inconsistent with the Frrst Amendment goal of producing an informed pnblic capable of conducting its own affairs to require to personal attacks occurring in the course of diScussing controversial issues, or to require that the political opponents of those endorsed by the station be given a chance to communicate with the public. OtherWise, station owners and a few networks would have unfettered power to make time available only to the highest bidders, to communicate only their own views on public issues, people and candidates, and to permit on the air only -- ' those with whom they agreed. There is no sanctuary in the Frrst Amendment for unlimited private censorship operating in a - medium not upon to all 'Freedom of the press from governmental interference under the Frrst Amendment does not sanction repres- G -sion of that freedom by private interests. ·

. X .X X X X X X X X

....... · It does not violate the Frrst Amendment to treat licensees \ H given the privilege of Using scarce radio freq~ncies as proxies for

MIN. OP INFORMAT.:ON AND BROAIY'..ASTINGw. CRICKET ASSN. OFBENGALfSAWAHI',J.) 1067 . ' I the entire community, obligated to give suitable time and attention to matters of great public concern. To condition the granting or renewal of license~ on a \\illingness to present repre5ent3tive community views on controversial issues is consistent with the ends · and purposes. of those constitutional provisions forbidding ·the abridgment of freedom of speech and freedom of the press. Con- gre.. need not stand idly by and permit those with licenses to ignore the problems which beset the people or to exclude from the airwayi; anything but their ·own views of fundamental questions ·-····

licenses to broadcast do not confer ownership of designated frequencies, but only the temporary privilege of using them.' C

Referring to the contention that although at one time the lack of available frequencies for all who wished to .use them justified the Government's choice of those who would best serve the public interest by acting as proxy for those who W.Juld present differing views, or by giving D the latter access directly to broadcast facilities, the said condition no longer prevailed to invite continuing contro~ the Court held :

'ScarCity is not entirely a thing of the past. Advances in tech- nology, such as. micr~wave transmission, have Jed to more efficient utilisation of the frequency spectrum, but uses for that spectrum. E have aiso grown apace. Porfuns of the spectrum must be rc:Served for vital ll3es unconnected with human communication, such as radiQ-navigational aids.used by aircraft and vessels. Conflicts have even emerged between such vital functions as defense prepared- ness and experimentation in methods of averting midair collisions F through radio warning devices. "Land mobile services' such as · police, ambulance, fire department, public utility, and other com- munications systems have been occupying an increasingly crowded portion of the frequency specirum and there are, apart from licensed aniateiir radio operators' equipment, 5,000,000 transmit- ters operated on the 'Citizens' band' which is also increasingly G , congested. . Among the various uses for radio frequency space, including marine, aviatio,',, amateur, military, and collll'llon Carrier users, there are easily enough claimants to permit use of the whole with an even smaller allocation to broadcast radio and television uses than now exists. , H

1068 SUPREME COURT REPORTS (1995] 1 S.C.R.,

A Comparative hearings between competing applicants for broad- cast spectrum space are by no means a thing of the past. The radio spectrum has become so · congested that at times it has been necessary to suspend new applications. The very high frequency television spectrums, in the country's major markets, almost en- tirely occupied, although space reserved for ultra high frequency B television transmission, which is a relatively recent developm~nt as a commercially viable alternative, has not yet been completely filled.

The rapidity with which technological advances succeed one c another to create more efficient use of spectrum space on the one hand, and to create new uses for that space by ever growing numbers of people on the other; makes it unwise to speculate on the future allocation of that space. It is enough to say that the resource is one of considerable and growing importance whose scarcity impelled its regulation by an agency authorised by Con- D gress. Nothing in this record, or in our own researches, convinces us that the resource is no longer one for which there are more immediate and potential uses than can be accommodated, and for which wise plannfu.g is essential. This does not mean, of course, that every possible wavelength must be occupied at every hour by some vital use in order to sustain the congressional judgment. The substantial capital investment required for many uses, in addition to the potentiality for confusion and interference inherent in any scheme for continuous kaleidoscopic reallocation of all available space may make this unfeasible. The alloeation need not be made at such a breakneck pace that the objectives of the allocation are themselves imperiled.

Even where there are gaps in spectrum utilization, the fact remains that existing broadcasters have often attained their present position because of their initial government selection in competi- G tion with others before new technological advances opened new opportunities for further uses. Long experience in broadcasting, confirmed habits of listeners and viewers, network affiliation, and other advantages in program procurement give existing broad- casters a substantial advantage over new entrants, even where new entry is technologically possible. These advantages are the fruit ·of ·

MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [SAWANT, J.] 1069

a preferred position conferred by the Government. Some present possibility for new entry by competing stations is not enough, in itself, to render unconstitutional the Government's effort to assure that a broadcaster's programming ranges widely enough to serve the public interest.

In view of the scarcity of broadcast frequencies, the B Government's role in allocating those frequencies, and the legitimate claims of t,hose unable without governmental assistance to gain access to those frequencies for expression of their views, we hold the regulations and ruling at issue here are both authorized by statute and constitutional". C In Columbia Broadcasting System etc. etc. v. Democratic National Committee etc. etc., [412 US 94: 36 L.Ed 2d 772], in separate decisions rejecting the contentions that the general policy of certain radio and television broadcast licensees of not selling any editorial advertising time to individuals or groups wishing to speak out on public issues violated the D Federal Communications Act of 1934 and the First Amendment, such contentions having been asserted in actions instituted by a national or- ganisation of business opposed to United States involvement in Vietnam and by the Democratic National Committee, the US Court of Appeals for the District of Columbia Circuit reversed the Commission. However, the E US Supreme Court reversed the Court of Appeals. Burger, CJ. expressing the views of the six members of the Court held :

".......... (1) the First Amendment issues involved in the case at bar had to be evaluated within the framework of the statutory and regulatory scheme that" statutory and regulatory scheme that had developed over the years, affording great weight to the decisions of Congress and the experience of the Federal Communications Commission, and (2) under the Federal Communications Act and the Commission's "fairness doctrine," broadcast licensees had broad journalistic discretion in the area of discussion of public issues.

It was also held, expressing the views of the five members of the court (Part IV of the opinion); that (3) neither the public interest standards of the Federal Communications Act nor the First Amendment, assuming that there was governmental action · H

1070 SUPREME COURT REPORTS (1995) 1 S.C.R.

A for First Amendment purposes, required broadcasters to accept . editorial advertisements, notwithstanding that they accepted Com- mercial advertisement, and (4) the Commission was justified in concluding that the public interest would not.be served by a system affording a right of access to broadcasting facilities for paid editorial advertisements, since such a .system would be heavily weighted in favour of the financially affluent, would jeopardize effective operation of the Commission's "fairness doctrine", and would increase government involvement in broadcasting by requir- ing the Commission's daily supervision of broadcaster's activities ......... a broadcaster's refusal to aceept any editorial advertisements was not governmental action for purposes of the First Amendment, c since private broadcasters, even though licensed and regulated to some extent by the government, were not instrumentalities or "partners" of the Government for First Amendment purposes, and since the Commission, in declining. to reject the broadcasters' policies against accepting editorial advertisements, had not fostered or required such policy".

\ It may be mentioned here that unlike in this country, in United States, the private individuals and institutions are given licenses to have · their own broadcasting stations and hence the right of the private broad- casters against the right of others who did not own the broadcasting stations but asserted their right of free speech and expression were pitted against each other in this case and the decision has mainly turned upon the said balancing of rights of both under the First Amendment. It was in substance held that any <Urection to the private broadcasters by the Government to sell advertising time to speak out on public issues violated the protection given by the First Amendment to the private broadcasters -..---.. against Government control.

hi Federal Communications Commission et al. v. WNCN Listeners Guild et al., (450 Us 582: 67 L ed 2d 521), a number of citizen groups interested in fostering and preserving particular entertainm~nt formats petitioned for review of the Policy Statement of Federal Communications ·Comnlission (FCC) in the US Court of Appeals for the District of Colum- bia Circuit. The Court held that the Policy Statement was contrary to the Communications Act of 1934. The US Supreme Court reversed the decision of the Court of Appeals by majority, holding, inter alia, that the H Policy Statement wa5 not inconsistent with the Communications Act since

MIN. OF INFORMATION AND BROADCASTING•· CRICKET ASSN. OF BENGAL [SAWANT, J.J 1071

the FCC provided a rational expla,n,ation for its conclusion that reliance on A the· market was the best method of promoting diversity in entertainment formats and that FCC's judgment regarding how the public interest in best served was entitled to substantial judicial deference and its implementation . of the public interest standard, when based on -a rational weighing of competing policies was not to be set aside. Marshall and Brennan, JJ., B however, held that in certain limited circumstances, the FCC may be obliged to hold a hearing to consider whether a proposed change in a licensee's entertainment programme format is in the public interest and that the FCC's Policy Statement should be vacated since it did not contain a safety va!ve procedure that allowed the FCC the flexibility to consider applications for exemptions based on special circumstances and since it C failed to provide a rational explanation for distinguishing between enter~ tainment and not entertainment programming for purposes of requiring commission review of format changes.

In City of Los Angeles & Department of Water and Power v. Prefe"ed D Communication, Inc., 476 US 488: 90 L ed 2d 480, a cable television company asked a public utility and the city of Los ~geles's water and power department for permission to lease space on their utility poles in order to provide cable television service to part of the city. The respon- dent-company was told that it was first obtain franchise from the appellant City which refused to grant one on grounds that the company had failed E to participate in an auction that was t.o award a single franchise in the area. The respondent sued claiming violation of his right under the free speech clause of the First Amendment It was alleged in the complaint that there was sufficient physical capacitY and the economic demand in the area at issue to accommodate more than one cable company and that the city's F auction process allowed it to discriminate among applicants. As against this, the appellant argued that lack of space on public utility structures, the limited economic demand, and the practical and aesthetic disruptive effects on the public right of way justified its decision. The District Court dis- missed the complaint. On appeal, the US Court of Appeals reversed and remanded for further proceedings. The US Supreme Court affirmed the G Court of Appeals. Rehnquist, J. expressing the unanimous decision of the Court held:

"... (1) that the cable television company's complaint should not have been dismissed, since the activities in which it allegedly sought H

1072 SUPREME COURT REPORTS [1995} 1 S.C.R.

A to engaged plainly implicated First Amendment interests where they included the communication of messages on a wide variety of . topics and in a wide variety of formats, through origin&! program- ming or by exercising editorial discretion over which stations or programs to include in its repertoire, but (2) that it was not desirable to express any more detailed views on the proper resolu- B tion of the First Amendment question without a more thoroughly developed record of proceedings in which the parties would have an opportunity to prove those disputed factual assertions upon which they relied."

C 7. The position of law on the freedom of speech and press has been explained in (16 Am Jur 2d 343) as under:

"The liberty of the press was initially a right to publish without a license that which formerly could be published only with one, and although this freedom from previous restraint upon publication could not be regarded as exhausting the guarantee of liberty, the prevention of that restraint was a leading purpose in the adoption of the First Amendment. It is well established that liberty of the press historically considered and taken up by the Federal Constitu- tion, means principally, although not exclusively, immunity from previous restraints or censorships. Stated differently, the rule is that an essential element of the liberty of the press is its freedom from all censorships over what shall be published and exemption from control, in advance, as to what shall appear in print...... .

xxxxxxxxx F The freedom of speech and press embraces the right to dis- tribute literature, and necessarily protects the right to receive literature which is distributed. It is said that liberty in· circulating is as essential to the freedom as liberty of publishing, since publi- G cation without circulation would be of little value.

The right or privilege of free speech and publication, guaran- teed by the Constitutions of the United States and of the several states, has its limitation and is not an absolute right, although- H limitations are recognised only in exceptional cases.

MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL (SAWANT, J.) 1073

xxxxxxxxx A

The question of when the right of free speech or press becomes wrong by excess is difficult to determine. Legitim~te attempts to protect the public, not from the remote possibie effects of noxious ideologies, but from present excesses of direct, active conduct are not presumptively bad because they interfere with and in some of B their manifestations restrain the exercise of the First Amendment rights. The issue in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about substantive evils, which the federal or state legislatures have a right to prevent; it is C a question of proximity and degree.

xxxxxxxxx

The freedoms of speech and press are not limited to particular media of expression. Verbal expression is, of course, protected, D but the right to express one's views in an orderly fashion .extends to the communication of ideas by handbills and literature as well as by the spoken word. Picketing carried on in a nonlabor context, when free from coercion, intimidation, and violence, is constitu- tionally guaranteed as a right of free speech." E

8. In "Civil Liberties & Human Rights" authored by David Feldan, the justification for and limits of freedom of expression are stated in the following words:

The liberty to express one's self freely is important for a number of F reasons. Firstly, self expression is significant instrument of freedom of conscience and self-fulfilment. Second justification concerns epistemology. Freedom of expression enables people to contribute to debates about social and moral values. The best way to find the best or truest theory or model of anything is to permit the widest possible range of ideas to circulate. G Thirdly, the freedom of expression allows political discourse which is necessary in any country which aspires to democracy. And lastly, it facilitates artistic scholarly endeavours of all sorts.

. The obvious connection between press freedom and freedom of speech is that the press is a medium for broadcasting information and H

1074 SUPREME COURT REPORTS [1995) 1 S.C.R.

A opinion. Firstly, media freedom as a tool of self-expression is a significant instrument of personal autonomy. Secondly, as a channel of communica- tion, it helps to allow the political discourse in a democracy. Thirdly, it helps to provide one of the essential conditions in scholarships making possible the exchange and evaluation of theories, explanations and dis- B .coveries, and lastly, it help to promulgate a society's cultural values and facilitates the debate about them, advancing the development and survival of civilisation.

Referring to the reasons for regulating the broadcasting media, the learned author has stated that, first, the Government realises the potential of channels of mass communication for contributing to. democracy or undermining it. They hoped to foster a public service ethos in broadcasting so that it would be a medium for education and improving the population. Serondly, in order to do this it was necessary to keep the media of mass communications from having programme policy dictated entirely by market forces. A strong public sector and regulation of the independent sector when one started to operate, were called for. Thirdly, when comm.ercial broadcasters appeared on the scene, and a regulatory scheme was being developed for them, it was thought to be important to preserve a diversity of ideas by preventing oligopolistic concentrations of power in the hands of a few, usually rich and conservative media magnates, and to ensure that licences were granted only to people who could be expected not to abuse the privilege. The need to preserve propriety has been a motivating factor in the regulation of commercial broadcasting ov~r much of the world. Fourthly, government hoped to ensure that civilised standards were main- tained, to uphold social values. Fifthly, wave lengths for broadcasting were limited. This purely technical consideration shar~ distinguishes broad- casting from newspapers, and justifies a higher level of regulation. In theory, if not in practice there is nothing to prevc;nt any number of newspaJYers being published simultaneously. The only controlling mechanism needed is that of market forces. This is not true of broadcast- G m ing. Some control over the allocation of wavelengths is needed order to ensure that there are sufficient for all legitimate broadcasters. Lastly, another legitimate object of national regulation is to protect the intellectual . property rights of programme makers and broadcasters.· It is permissible on this ground for an organisation to prevent people from setting access ... H to programmes without paying proper licence fees. One way of preventing

MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [SAWANT, J.) 1075

1076 SUPREME COURT REPO~TS [1995] 1 S.C.R. / A · where an authority must give permission before roads can be dug up for laying cable. The learned author states that the case is unconvincing for it infers that it is right for the Government to regulate broadcasting from the fact that it has opportunity to do this. It would be perfectly possible for Government to allocate frequencies for cable franchises without B · programme conditions on the basis of a competitive tender and allow the resale by the purchaser. The argument, according to the author, therefore, does not work. It does not justify broadcasting regulations but almost explains how it is feasible. The author, however, does not accept the objection to this reason for regulation that thereby Government acts im- C properly by using their licensing power to purchase broadcasters' constitu- tional right to speech. According to the author, this argument is less persuasive as it assumes that broadcasters enjoy the same constitutional rights of free speech as individuals talking in a bar or leafletting iµ a high street. The author then deals with the second reason given for regulation D of broadcasting, viz., scarcity of frequencies and points out that this argu- ment referred to in Red Lion Broadcasting case (supra) is less clear than appears at first sight. Since it is not clear whether the scarcity of frequen- cies refers to the limited number allocated by the Government as available for broadcasting or to the actual numerical shortage of broadcasting sta- tions. If it is the former, the scarcity is an artificial creation of the E Government rather than a natural phenomenon ~ince it reserves a number • of frequencies for the use of the army, police and other public services. The Government is then not in a good position to argue for restrictions on broadcasters' freedom. The author then points out that as far as the actual scarcity of broadcasting stations is concerned, there has been an increase in the last 20 years in the broadcasting stations in the United States while there are fewer newspapers than there used to be. Similar developments have occurred in European Countries in the same period, especially, since the advent of cable and satellite. Further the scarcity argument cannot be divorced from economic considerations. The shortage of frequencies and the high cost of starting, up broadcasting channel explain their dearth in comparison with the number of newspapers and magazines in 1961. How- ever, it is now probably as difficult to finance a new newspaper as it is a private television channel, if not more so. Lastly, the author points out that the scarcity argument is much less tenable than it used to be. Cable and +- H satellite have significantly increased the number of available or potentially

MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [SAWANT, J.] 1077

available channels so that there are more broadcasting outlets than there A are national or local daily newspapers. Dealing with the third reason advocated for giving differential treatment to the broadcasting, viz., the character of the broadcasting media, the author points out that it is said that television and radio, are more influential on public opinion than the press, or at least are widely thought to be so. The majority of the US B Supreme Court in FCC v. Pacifica Foundation, 438 US 7'1£J said that they intrude into the home and are more pervasive and are more difficult to control than the print media. In particular, it is hard to prevent children from being exposed to broadcast while it is relatively easy to stop them looking at magazines and papers which in any case they will not be able to read ·or purchase. These grounds underpin the extension of legal control in Britain over violent and sexually explicit programmes through the estab- lishment of Broadcasting Standard Council and the strengthening of the impartiality rules. In Third Television Case 57 B Verf GE 295, 322-3 [1981) the German Constitutional Court dealing with a different version of this argument has held that regulation is necessary to guarantee pluralism and programme variety, whether or not there is a shortage of frequencies and other broadcasting outlets. The free market will not provide for broadcast- ing the same variety found in the range of press and magazine titles. Hence programme content should be regulated and the media monopolies should be cut down by the application of anti-trust laws. Thus both the US and the E German arguments lay stress on the power of television and its unique capacity to influence the public. According to the learned author, the argu- ments are difficult to assess. Broadcasting does not intrude into the home unless listeners and viewers want it to be. From the point of view of constitu- tional principles it is not easy to justify imposition of greater limits on the medium on the ground that it is more influential than the written words. It F cannot be right to subject more persuasive types of speech to greater restraints than those imposed on less effective varieties. The author, how- ever, accepts the view of the majority of the US Supreme Court in Pacifica case (supra) which regarded broadcasting, particularly television, as a uni- quely pervasive presence in the lives of most people. More time is spent G watching television than reading. The presooce of sound and picture in any home makes it an exceptional potent medium. It may also be harder to stop children having access to 'adult material' on television than to pornographic magazines. This may not apply to subscription channels, enjoyment of which is dependent on a special decoder. He also agrees that experience in the H

1078 SUPREME COURT REPORTS (1995] 1 S.C.R.

A United States and more recently in Italy suggests that a free broadcasting . market does not produce the same :variety as the press and book publishing markets do. However, the author states that these three justifications for broadcasting regulation are inconclusive and it is doubtful whether the case is powerful enough to justify the radically different legal treatment of the press and broadcasting media. A separate question, according to the author, is whether it is appropriate to continue to treat radio in the same way as television since there is generally a large choice of local, if not national radio programmes and it is hard to believe that it exercises a dominating influence on the formation of public attitudes. The same question arises in respect of cable television. Although a licence has to be obtained from a ·licensing authority, several franchises may be physically accommodated and a wide band cable system may be able to carry upto 30 or 40 or even more channels. The scarcity rational, therefore, seems inapplicable to cable, and further it is hard to believe that this mode of broadcasting exercises such a strong influence that stringent programme regulation is justifiable. Dealing with the last reason advocated by a leading American scholar, Lee Bollinger in his article "Freedom of the Press and Public Access" and his essay "The Rational of Public Regulation of the Media" and in "Democracy and the Mass Media" Cambridge (1990] for the divergent treatment of the press and broadcasting +- - media, the author points out that Bollinger accepts that there is no fun- E damental difference in the character of the two mass media, but argues that broadcasting being still relatively new means of mass communication, it is understandable that society has wanted to regulate it just as it has treated that cinema with more caution than it has the theater. This argument of Bollinger is based on the history of the two media. Bollinger's second argu- F ment is that society is entitled to remedy the deficiencies of an unregulated press with a regulated broadcasting system which may be preferable to at- tempting to regulate both sectors. According to Bollinger, regulation poses the danger of government control, a risk which is reduced if one branch of the media is left free. The author attacks this reason given by Bollinger and states that it is an unsatisfactory compromise. If the regulation of the press G · is always wrong and perhaps unconstitutional and if there is no significant difference between the two media, it follows that the latter should also be wholly unregulated .. The author also points out that Bollinger's argument attempts to justify the unequal treatment of the liberties of the broadcasters and newspaper proprietors and editors when in all material respects, their position is identical.

MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [SAWANT, J.] 1079

The author then refers to the rights of viewers and listeners which is referred to in Red Lion Broadcasting case (supra) by White, J. of the US ~ Supreme Court in the following words :

"But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function con- B sistently with the ends and purposes of the First Amendment. It is the right of viewers and listeners, not the right of the broadcasters, which is paramount."

.... The author concludes by pointing out that the cases from a variety of jurisdictions show that the broadcasters' programme freedom when c exercised within the constraints imposed by the regulatory authority, has priority over the rights claimed by viewers to see a particular programme or to retain a particulars series in the schedule. On the other hand, the interests of viewers and listeners justify the imposition of programme standards which would not be countenanced for the press or publishing. It D is recognised by the constitutional courts of European countries that viewers and listeners have interest, and they should be taken into account in the interpretation of broadcasting freedom. But the balancing of the rights of the broadcasters and viewers is done by regulatory authority. Courts are understandably reluctant to contemplate the interference with administrative discretion which would result from their recognition of individual rights.

Dealing .with the right to .access to broadcasting, the author points out that the theoretical argument in this connection is that freedom of speech means freedom to communicate effectively to a mass audience and nowadays that entails access to the mass media. The rights to access -~ provide some compensation for the expropriation by the public monopoly of the freedom to broadcast. In the absence of a justification for that monopoly, there would be a right to broadcast in the same way that everyone has a right to say or write what he likes in his own home. This would justify the recognition of access to both public and private char.nels. G The author states that these arguments are unacceptable. Freedom of speech does not entail any right to communicate effectively in the sense ~ ..... that a citizen can call upon the State or provide him with the most effective means for the purpose. He points out that no legal system provides its citizens with the means and opportunities to address the public in the way H

1080 SUPREME COURT REPORTS [1995] 1 S.C.R.

A each considers most appropriate. Moreover, to grant everyone a right to use an access channel, even if available all the time, would be to give every adult a worthless right to use it for a second a year. Limited access rights, enjoyed only by important political and social groups may be more valu- able. But even their recognition would involve sqme interference with the editorial freedom of channel controllers and programme schedulers and it may be more difficult as a consequence to achieve a balanced range of programmes. Further, a channel might find it hard to create any clear identity for itself, if it had to devote a substantial amount of time to relaying the programmes made by pressure groups. There are also practical objec- tions to access rights. It may be very difficult to decide, for example, which groups are to be given access, and when and how often such programmes are to be shown. There is a danger that some grounds will be unduly privileged. There points weigh particularly heavily against the recognition of constitutional rights, for courts are not competent to formulate them with any precision. Dealing with the constitutional rights of access to the broadcasting media, the author concludes that individuals and groups do not have constitutional rights of access to the broadcasting media. Access rights can only be framed effectively by legislature or by specialist ad- ministrative agencies. It does not mean that statutory or other access rights do not have a constitutional·dimension. The courts may lay down that some provisions should be made for access as a matter of constitutional policy. E This, however does not mean that there are individual constitutional rights to accef..:;.

In this connection, the author also. points out that the development of cable poses new access problems. Operator of the cable may himself have rights of free speech which would be infringed by requirement to honour access claims. The scarcity and economic arguments which are employed to justify broadcasting regulation and, therefore, access provision, may be less applicable in the context of cable.

11Copy pinpoint11. 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 of social and moral issues. It is the best way to fmd a truest model of anything, since it is only thro"ugh it, that the widest possible range of ideas can circulate. It is the

MIN. OF INFORMATION AND BROADCASTING•. CRICKET ASSN. OF BENGAL [SAWANT. J.] 1081

only vehicle of political discourse so essential to democracy. Equally im- portant is the role it plays in facilitating artistic and scholarly endeavours of all sorts. The right to communicate, therefore, includes right to com- municate through any media that is available whether pr:int of electronic or audio-visual such as advertisement, movie, article, speech etc. That is why freedom of speech and expression includes freedom of the press. The freedom of the press in terms includes right to circulate and also to determine the volume of such circulation. This freedom includes the freedom to communicate or circulate one's opinion without interference to as larg~ a population in country as well as abroad as is possible to reach.

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 samt; 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 spell out under Article 19(2) of our Constitution. Hence no restrictions can be placed on the right to freedom of speech and expression on grounds other those specified under Article 19 (2) .. E

12Copy pinpoint12. What distinguishes the electronic media like the televii;ion from the print media or other media is that has both audio and visual appeal and has a more pervasive presence. It has a greater impact on the minds of the viewers and is also more readily accessible to all including children 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.

13Copy pinpoint13. 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 expres- sion. Hence in a democratic polity, neither any private individual, institu- tion or organisation nor any Government or Government organisation can claim exclusive right over it. Our Constitution also forbids monopoly either .H

1082 SUPREME COURT REPORTS (1995) 1 S.C.R.

A in the print or electronic media. The monopoly permitted by our Constitu- tion is only in respect of carrying on a trade, business, Industry or service under Article 19(6) to subserve the interests of the general public. How- ever, the monopoly in broadcasting and telecasting is often claimed by the Government to utilise the public resources in the form of the limited frequencies available for the benefit of the society at large. It is justified by 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'etre if either any section of the society is unreasonably denied an access to broadcasting or the governmental agency claims exclusive right to prepare and relay programmes. The ground is further not available when those claiming an access either do not make a demand on the limited frequencies controlled 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 t- - 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 license or access to the media, the reason for creating monopoly will lose its validity. For then it is the government which will be enabled to 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 [hereinafter referred to as the ''Telegraph Act" ] creates this monopoly and vests the power of regulat-

MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [SAWANT, J.) 1083

ing and licensing broadcasting in the Government. Further, the A Cinematograph Act, 1952 and the Rules made thereunder empower the Government to pre-censor films. However, the power given to the Govern- ment to license and to pre-censor under the respective legislations has to be read in the context of Article 19(2) of the Constitution which sets the parameters of reasonable restrictions which can be placed on the right to B freedom of speech and. expression. Needless to emphasise that the power to pre-censor films and to grant licences for access to telecasting, has to be exercised in conformity with the provisions of Article 19(2). It is in this ".. context that we have to examine the provisions ef Section 4 (1) of the Telegraph Act and the action of the MIB/DD in refusing access to telecast the cricket matches in the present case. The relevant Section 4 of the C Telegraphs Act reads as follows :

"4. (1) Within India the Central Government shall have the ex- clusive privilege of establishing, maintaining and working telegraphs : D / .. 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 India 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. G (2) The Central Government may, by notification in the Official

--- Gazette, delegate to the telegraph authority all or any of its powers under the first proviso to sub-section (1).

The exercise by the telegraph authority or any power so delegated shall be subject to such restrictions and conditions the H

1084 SUPREME COURT REPORTS [1995] 1 S.C.R.

Central Government may, by the notification, think fit to impose." - · Section 3(1) of the Act defines 'telegraph' as under :

"3. (1) "telegraph" means any appliance, instrument, material or apparatus used or capable of use for transmission or reception B of signs, signals, writing, images and sounds or intelligence of any nature by wire, visual or other electromagnetic emissions, Radio waves Hertzian waves, galvanic, electric or magnetic means.

Explanation.- "Radio waves" or "Hertzian Waves" means electromagnetic waves of frequencies lower than 3,000 giga-cycles c per·second propagated in space without artificial guide."

It is clear from a reading of the provisions of Sections 4 (1) and 3(1) together that the Central Government has the exclusive privilege of estab- lishing,_;naintaining and working appliances, instruments, material or ap- D parafus used of-capable of use for transmission or reception of signs, signals, images and sounds or intelligence of any nature by wire, visual or ----- other electro-magnetic emissions, Radio waves or Hertzian waves, galvanic, electric or magnetic means. Since in the present case the controversy centres round the use of airwaves or hertzian waves [heremafter will be called as "electro-magnetic waves"], as is made clear by Explanation to E section 3(1), the Central Government can have monopoly over the use of the electo-magnetic waves only of frequencies lower than 3000 giga-cycles ·per second which are propagated in space with or without artificial guide. In other words, if the electro-magnetic waves of frequencies of 3000 or more giga-cycles per second are propagated in space with or ·without p artificial guide, or if the electro-magnetic waves of frequencies of less than 3000 giga-cycles per second are propagated with an artificial guide, the Central Government cannot claim an exclusive right to use them or deny its user by others. Since no arguments were advanced on this subject after the closure of the arguments and pending the decision, we had directed the parties to give their written submissions on the point. The submissions sent by them disclosed a wide conflict which would have necessitated further oral arguments. Since we are of the view that the present matter can be decided without going into the controversy on the subject, we keep the point open for decision in an appropriate case. We will presume that in the present case the dispute is with regard to the use of electro-magnetic waves of frequencies lower than 3000 giga-cycles per second which are

,. · MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL (SAWANT, J.] 1085

propagated in space without artificial guide. A

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 cricketeers, the sportsmen present and prospective and of the viewers of the matches. The restrictions and condi- tions that the Central Government is authorised to place under s.4(1) while permitting non-wireless telegraphing can, as stated earlier, only be those which are warranted by the purposes mentioned in Article 19 (2) and none else. It is not and cannot be the case of the Government that by granting the permission in question, the sovereignty and integrity of India, the security of the State, friendly relations with foreign State, public order, decency or morality or either of them will be in jeopardy or that the permission will lead to the contempt of court, defamation or incitement to an offence. On the other hand, the arguments advanced are specious and with· them we will deal a little later. F

14Copy pinpoint14. It is then necessary to understand the nature of the respondent organisation, namely, CAB. It cannot be disputed that the BCCI is a non-profit making organisation which controls officially organised game of cricket in India. Similarly, Cricket Association of Bengal (CAB) is also non-profit making organisation which controls officially organised game of G cricket in the State of West Bengal. The CAB is one of the Founder Members of BCCI. Office bearer and Members of the Working Commit- tees of both BCCI and CAB are all citizens of India. The primary object .. of both the organisations, amongst others, is to promote the game of cricket, to foster the sprit of sportsmanship and the ideals of Cricket, and H

1086 SUPREME COURT REPORTS [1995] 1 S.C.R.

A to impart education through the media of Cricket, and for achieving the :>- said objects, to organised and stage tournaments and matches either with the members of International Cricket Council (ICC) or other organisations. According to CAB, BCCI is perhaps the only sports-organisation in India which earns foreign exchange and is neither controlled by any Governmen- tal agency nor receives any financial assistance or grants, of whatsoever B nature.

It cannot be disputed further that to arrange any international cricket tournament or series, it is necessary and a condition- precedent, to pay to ~· the participating member countries or teams, a minimum guaranteed c amount in foreign exchange and to bear expenses incurred for travelling, boarding, lodging and other daily expenses for the participating cricketeers and the concerned accompanying visiting officials. A huge amount of expenses has also to be incurred for organising the matches. In addition, both BCCI and CAB annually incur large amount of expenses for giving subsidies and grants to its members to maintain, develop and upgrade the D infrastructure, to coach and train players and umpires, and to pay to them t>--,.; when the series and matches are played.

15Copy pinpoint15. Against this background, we may now examine the questions {)f law raised by the parties. The contention of the Ministry of Information E and Broadcasting (MIB) is that there is a difference between the implica- tions of the right conferred under Article 19(1) (a) upon (i) the broadcaster i.e. the person operating the media, (ii) the person desiring access to the media to project his views including the organiser of an event, (iii) the viewer and (iv) a person seeking uplinking of frequencies so as to telecast .......... "·, F signals generated in India to other countries. The contention of CAB that denial of a license to telecast through a media of its choice, based (accord- ing to MIB) upon the commercial interests, infringes viewers' right under Article 19(1) (a) is untenable. It is further contended that the commercial interests of the organizer are not protected by Article 19 (l)(a). However, G the contention of the CAB results indirectly in such protection being sought by resort to the following steps of reasoning : (a) the Board has a ~,

right to commercially exploit the event to the maximum, (b) the viewer has

H a right to access to the event through the television. Hence the Board has the right to telecast t)irough an appropriate channel and also the right to insist that a private agency, including a foreign agency, should be allowed -

MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [SA WANT, J.) 1087

all the sanctions and permissions as may be necessary therefor. A

According to MIB the aforesaid contention is untenable because even if it is assumed that entertainment is a part of free speech, the analogy of the right of the press under article 19(1) (a) vis-a-vis the right under Article 19(1)(g), cannot be extended to the right of sports associations. The basic premise underlying the recognition of the rights of the press under B Article 19(1)(a) i5: that the economic strength is vitally necessary to ensure independence of the press, and the even the 'business' elements of a newspaper have to some extent a 'free speech' protection. In other words the commercial element of the press exists to subserve the basic object of the press, namely, free dissemination of news and views which enjoys the C protection of free speech. However, free speech element in telecast of sports is incidental. According to the MIB, the primary object o( the telecast by the CAB is to raise funds and hence the activities are essentially of trade. The fact that the profits are deployed for promotion of sports is immaterial for the purpose. D It is further urged that a broadcaster does not have a right as such to access to the airwaves without a license either for the purposes of telecast or for the purposes of uplinking. Secondly, there is no general right to a license to use airwaves which being a scarce resourcf<, have to be used in a manner that the interests of the largest number are best served. The E paramount interest is that of the vie..yers. The grant of a license does not confer any special right inasmuch as the refusal of a license does not result in the denial of a right to free speech. Lastly, the nature of the electronic media is such· that it necessarily involves the marshalling of the resources for the largest public good. The state monopoly created as a device to use the resource is not per se violative of the right to free speech as long as the paramount interests of the viewers are subserved and access to the media is governed by the fairness doctrine. According to the MIB, the width of the rights under Article 19(1)(a) has never been considered to be wider than that conferred by the First Amendment to the U.S. Constitution. It is also urged that the licensing of frequencies and consequent regulation of telecast/broadcast would not be a matter covered by Article 19(2). The right to telecast/broadcast has certain inherent limitations imposed by nature, whereas Article 19(2) applies to restrictions imposed by the State. The object of licensing is not to cast restrictions on the expression of ideas, but to regulate and marshall scarce resources to ensure their optimum enjoyment by all including those who are not affluent enough to dominate H

1088 SUPREME COURT REPORTS [1995) 1 S.C.R.

A the media. It is next urged that the rights of an organiser to use airwaves as a medium to telecast and thereby propagate his views, are distinct from his right to commercially exploit the event. Although it is conceded that an organiser cannot be denied access on impermissible grounds, it is urged 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 a right under Article 19 (1) (a) in a manner which makes it 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 licenses and permissions to any foreign agency of its choice and a refusal to do so would violate Article 19 (l)(a). According to MIB, this is an indirect method to seek protection of Article 19(1) (a) to the non-citizens.

D It is then contended that a free-speech right of a viewer has been recognised as that having a paramount importance by the US Supreme Court and this view is all the more significant in a country like ours. While accepting that the electronic media is undoubtedly the most powerful media of communication both from the perspective of its reach as well as its impact, transcending all barriers including that of illiteracy, it is con- E tended that it is very cost-intensive. Unless, therefore, the rights of the viewers are given primacy, it will in practice result in the affluent having the sole right to air their views completely eroding the right of the viewers. The right of viewer can only be safeguarded by the regulatory agency by controlling the frequencies of broadcast as it is otherwise impossible for 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 event at the highest possible value it may command and if the DD is unwilling to pay as much as the highest bidder, the CAB/BCCI has the right not only to market the event but to demand as of right, all the necessary licences

MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [SAWANT, J.) 1089

and permissions for the agency including foreign agency which has pur- A chased its rights. According to MIB these contentions do not raise any ~ free-speech issues, but impinge purely on the right to trade. As far as Article 19(1)(g) concerned, the validity or the monopoly in favour of the Government is beyond question. Secondly, in the present case, the DD did not refuse to telecast the event per se. It is then submitted that the CAB/BCCI are not telecasters. They are only organisers of the events B sought to be telecast and when the agency like DD which has access to the largest number of viewers agrees to telecast the events, their right as well as the viewers' right under Article 19(1) (a) is satisfied. No organiser, it is . ~ contended, can insist that his event be telecast on terms dictated by him and refusal to agree to his term constitutes, breach of his right under c Article 19(1)(a). If it is accepted that the Government has not only the right but the duty to regulate the distribution of frequencies, then the only way it can be done is by creating a monopoly. A mere creation· of the monopoly-agency to telecast does not per se violate Article 19 (1) (a) as long as the access is not denied to the media either absolutely or by imposition of term~ which are unreasonable. Article 19(1) (a) proscribes monopoly in ideas and as long as this is not done, the mere fact that the ,, l access to the media is through the Government-controlled agency, is not per se violative of Article 19 (l)(a). It is further urged that no material has been placed before the Court to show that the functioning of the DD is such as to deny generally, an access to the media and the control exercised by the Government is in substance over the content on the grounds other than those specified in Article 19(2) or a general permission to all who seek frequencies to telecast, would better subserve the principle underlying Article 19(1) (a) in the socio-economic scenario of this country and will not result in passing the control of the media from the Government to ·p private agencies affluent enough to buy access.

16Copy pinpoint16. As against these contentions of the MIB, it is urged on behalf of CAB and BCCI as follows :

The right to organise a sports event inheres in the entity to G which the right belongs and that entity in. this case is the BCCI and its members which include the CAB. The right to produce -.....+ event µicludes the right to deal with such event in all manner and mode which the entity chooses. This includes the right to telecast or not to telecast the event, and by or through whom, and on what . H

1090 SUPREME COURT REPORTS [1995) 1 S.C.R.

A terms and conditions, No other entity, not even a department of the Government can coerce or influence this decision or. obstruct the same except on reasonable grounds mentioned under Article 19(2) of the Constitution. In the event the entity chooses to televise its own events, the terms and conditions for televising such events are to be negotiated by it with any party with whom it wishes to B negotiate. There is no law, bye-law, rule or regulation to regulate the conduct of the BCCI or CAB in this behalf. In the event, BCCI chooses to enter into an agreement with an agency having neces- sary expertise and infrastructure to produce signals, and transmit and televise the event to the quality that BCCl/CAB desires, the c terms and conditions to be negotiated with such an entity, are the exclusive privilege of BCCl/CAB. No department of the Govern- ment and least of all, the MIB or DD is concerned with the same and can deny the BCCI or CAB same, the benefit of such right or claim, much less, can the MIB or DD can insist that such negotia- tion and finalisation only be done with it or not otherwise. D In the event the BCCI or CAB wishes to have the event televised outside India, what is required is that the required cameras and equip- ments in the field send signals to the earth station which in turn transmits the same to the appointed satellite. From the satellite, the picture is E beamed back which can be viewed live by any person who has a TV set and has appropriate access to receive footprints within. the beaming zone. In such case DD or the Ministry of Communications is not to provide any assistance either in the form of equipments or personnel or for that matter, in granting uplinking facility for televising the event.

F It is further that the right to disseminate information is a part of the fundamental right to freedom of expression. BCCI/CAB have the fun- damental right to televise the game of cricket organised and conducted by them for the benefit of public at large and in particular citizens of India who are either interested in cricket or desire to be educated and/or entertained. The said right is subject only to the regulations and restrictions as provide by Article 19(2) of the Constitution.

At no other stage either the DD or MIB stated that reasonable restrictions as enumerated in Article 19(2) are being sought to be imposed apart from the fact that such plea could not have been taken by them in the case of telecasting sports events like cricket matches. It is urged that

MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [SAWANT,J.] 1091

the sole ground on which DD/MIB is seeking to obstruct and/or refuse the said fundamental right is that the DD· has the exclusive privilege and monopoly to broadcast such an event and that unless the event is produced, transmitted and telecast either by DD itself or in coilaboration with it on its own terms and conditions and after taking signal from it on the terms and conditions it may impose, the event cannot be permitted to be produced, transmitted and telecast at all by anybody else. B It is also urged that there is no exclusive privilege or monopoly in relation to production, transmission or telecasting and such an exclusivity or monopoly, if claimed, is violative of Article 19(1) (a).

The BCCI and CAB have a right under Article 19 (1) (a) to produce, 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 Telecom- munication to allow the telecasting of the event. E 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 license to BCCl/CAB for the purposes of production, transmission and telecasting sports events or to impose any condition unrelated to Arti~le 19(2). If such denial or imposition is made, it would amount to proluoi- a tion. 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 (l)(a). The grant of license under section 4 of the Act has thus to be harmohiously read with the right of the citizen under Article 19 (l)(a). The Constitution does not visualize any monopoly in Article 19(1) (a). Hence DD cannot claim the same nor can the commercial interest of DD or claim of exclusivity by it of generation of signals be a ground for declaring permission under section 4 of the Act. Hence the following restrictions sought to be imposed fall outside the ambit of Article 19(2) and are unconstitutional. The restrictions are: H