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

Cricket is an interesting game. Radio, and more particularly the television has made in the most popular game in India. It has acquired tremendous mass appeal. Television has brought the game into the hearths and homes of millions of citizens across the country, enhancing its appeal several-fold. Men, women and children who had no interest in the game earlier have now become its ardent fans - all because of its broadcast by radio and television. This has also attracted the attention of business and commerce. They see an excellent opportunity of advertising their products and wares. They are prepared to pay huge amounts therefore. The cricket clubs which conduct these cricket matches have come to see an enormous opportunity of making money through these matches. Previously, their income depended mainly upon the ticket money. Now, it probably does not count'li:t all. The real income comes from the advertisements both in-stadia

I MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OP BENGAL [B.P. JEEVAN REDDY, J.J 1131

as well as the spot advertisements over radio and television. The value of . A in-stadi~ ·adv.e.rtisement has increased enormously on ·account of its con- stant expOsure .on television during the progress of the game. Lured by this huge revenues;· organisers of these events now propose to sell the broad- casting rights ~·:used compendiously to denote both radio and televisioii rights - of these. events to the highest bidder, be he foreign agency or a B local one. They find that Doordarshan is not in a position to or willing to pay as much as the foreign agencies are. According, they have sold these rights to foreign agencies. But - and here lies the rub - broadcasting the event, particularly telecasting, requires import, installation and operation of certain equipment by these foreign agencies for which the law (Indian Telegraph Act) requires a prior permission - licence - to be granted by C Government of India. Earlier, they wanted uplinking facility too through Videsh Sanchar Nigam Ltd., a Government of India-owned company. Now they suggest, it may not be necessary. They say, they can uplink directly . from their elU'th station installed, or parked, as the case may be, near the playing field to their designated communication satellite which will beam D it back to earth. The revolution in communications/information technology is throwing up new issues for the courts to decide and this is one of them.

The Doordarshan says that alI these years it has been telecasting the cricket events in India and has helped it popularise. So also is the plea of All-India Radio (AIR). They are Gov~rnment agencies - departments of E Government. AIR and Doordarshan enjoy a monopoly in this country in the matter of broadcasting and telecasting. They cannot think of any other agency doing the same job. They are not prepared to reconcile themselves to any other agency, more particularly, a foreign agency being invited' to broadcast/telecast these events and they themselves being asked to negotiate and purchase these rights from such foreign agencies. They say, they along should be allowed to telecast and broadcast these events; that they alone must act as the 'host broadcaster', which means they alone shall generate the host broadcasting signal, which the interesteci foreign agencies can purchase from them. They are, of course not prepared to p'ay as much amounts as the foreign agencies. They are seeking to keep away the foreign agencies with the help of the legal provisions in force in this country. If they are successful in that, it is obvious, they may-they can - dictate terms to the organisers of these events. If they cannot, the organisers will be in a position to dictate their terms. But here again, there is another practical, technological, problem. The foreign agencies do beam their programmes H

1132 SUPREME COURT REPORTS [1995] 1 S.C.R.

A over Indian territory too, but for receiving these programmes you require - period - a dish antenna, which costs quite a bit. Our TV sets cannot receive these programmes through the ordinary antenna. Doordarshan alone has the facility of telecasting programmes which .can be received through ordinary antennae. Millions in this country, who are deeply inter- B ested in the game, cannot afford these dish antennae but they want to watch the game and that can be provided only by the Doordarshan. And this is its relevance. Doordarshan says, if the organisers choose to sell their telecasting rights to a foreign agency, they would have nothing to do with the event. The would not telecast it themselves. If the foreign agencies can telecast them, well and good - they can do so in the manner they can, but C Doordarshan would not touch the event even by a long barge-pole. But, the Doordarshan complains, they are being compelled by the courts to telecast these events in public interest; such orders have been passed in writ petitions filed by individuals or .groups of individuals purporting to represent public interest; the Doordarshan is thus made to lose at both ends - and the organisers are laughing all the way; telecasting an event requires good amount of preparation; advertisements have got to be col- lected well in time; it cannot be done at the last minute; without advertise- ments, telecasting an event results in substantial loss the public exchequer - it says. These are the problems which have given rise to these appeals and writ petitions. They raised inter a/ia grave constitutional questions touching the freedom of speech and expression guaranteed by Article )9(1)(a) of the Constitution. The interpretation of Section 4(1) of the Indian Telegraph Act, the right to establish private broadcasting and telecasting facilities/stations - in short, the whole gamut of the law on broadcasting and telecasting has become involved in the issues arising herein.

FACTUAL CONSPECTUS:

Cricket Association of Bengal (CAB) organised an international cricket tournament under the name and style of "Hero Cup Tournament" G to commemorate and celebrate its diamond jubilee celebrations. Apart from India, National teams of West Indies, South Africa, Sri Lanka and Zimbabwe agreed to participate though the national team of Pakistan withdrew therefrom having agreed to participate in the first instance. The Hero Cup Tournament comprised several one day matches and its attrac- H tion was not confined to India but to all the cricket loving countries which,

( I MIN. OF INFORMATION AND BROADCASTINGv. CRICKET ASSN. OF BENGAL [B.P. JEEVAN REDDY, J.) 1133

in effect means all the commonwealth countries. The tournament was to be held during the month of November, i993. Until 1993, Doordarshan was acting as the host broadcaster in respect of all the cricket matches played in India. It generated the 'host broadcaster signal', watch. signal organisa- tions for being broadcast in their countries. However, an exception was made by the Government of India - for reasons we do not know - in respect of an earlier tournament; a foreign agency was permitted to telecast the matches in addition to Doordarshan. This exception appears to have set a precedent. On March 15, 1993 the Cricket Association of Bengal wrote to Doordarshan asking it to send their detailed offer which could be any one of the two alternatives mentioned in the letter. The two alternatives men- tioned were: "(a) that you (Doordarshan) would create 'host broadcaster signal' and also undertake live telecast of all the matches in the tournament or (b) that any other party may create the 'host broadcaster signal' and you would o_nly purchase the rights to telecast in India." The Doordarshan was requested to clearly spell in their offer the royalty amount they were willing to pay. It was further made clear that "in either case it may also please to noted that foreign T.V. rights will be retained by this association". The letter also suggested the manner in which and by which date the royalty amount was to be paid to it. The offer from Doordarshan was requested to be sent by March 31, 1993. On March 18, 1993 Doordarshan wrote to CAB asking it to send in writing the amount it expects as rights fee payable to it for granting exclusive telecasting rights "without the Star T.V. getting it". On March 19, 1993, CAB wrote to Doordarshan stating that "we are agreeable to your creating the Host Broadcaster Signal and also granting you exclusive rights for India without the Star TV getting it. And we would charge you US $ 800,000 (US Dollars Eight Hundred Thousand only ) for the same. We will, however, reserve the right to sell/licence right p -~ worldwide, excluding India and Star TV. You would be under an obligation to provide the picture and commentary, subject to the payment of your technical fees". On March 31, 1993 Doordarshan replied back stating that the exclusive rights for India without Star TV getting it may be granted to Doordarshan at a cost of Rupees one crore. Evidently, because no response was forth coming from CAB, the Doordarshan sent a reminder G on May 4, 1993. On May 12, 1993, CAB wrote to Doordarshan. By this letter, CAB informed Doordarshan that they have now decided "to sell/allot worldwide TV Rights for the tournament to one party only, instead of awarding separate areawise and companywise contracts". In view H

1134 SUPREME COURT REPORTS [1995] 1 S.C.R.

A of this revised decision, the CAB called upon Doordarshan to let them )mow whether Doordarshan is in the deal and if so to submit its detailed offer for worldwide TV rights by May 17, 1993. The Doordarshan was given an option either to purchase TV rights outright or to purchase TV rights on the basis of sharing of rights fee. Even before receiving this letter of CAB dated May 12, 1993, Doordarshan addressed a letter to CAB dated B May 12, 1993 stating that while Doordarshan is still committed to its bid of Rupees one crore, there is speculation that Pakistan may not participate in the tournament in the tournament which would adversely affect the viewership and commercials. In such an eventuality, the Doordarshan said, it will have to re-think its bid. c On June 18, 1993 Doordarshan sent a fax message to CAB referring to the press reports that CAB has entered into an agreement with transworld Image (TWI) for the TV coverage of the said tournament and that, therefore, Doordarshan has decided not to telecast the tournament matches organised by paying TWI. It stated that Doordarshan is not prepared to enter into any negotiation with TWI .to obtain TV rights for the event.

Months passed by and then on October 18, 1993, CAB wrote a detailed letter to Doordarshan. In this letter, CAB stated that though they were expecting an offer of Rupees two crores, Doordarshan was offering only a sum of Rupees one crore and that they have· received offers from agencies abroad including TWI which were much higher than Rupees two crores and that too in foreign exchange. Since Doordarshan was not interested in increasing its offer, the letter stated, CAB entered into a F contract with TWI for the telecast of matches. Even so, the letter stated, the CAB is still keen that Doordarshan comes forward to telecast the >- - matches since it does not wish to deprive 800 million people of this country and that accordingly they have made TWI agree for co- production with Doordarshan. It was also stated that Doordarshan should not claim ex- clusive rights and the CAB would be at liberty to sell the rights to Star TV. G . The letter further stated that the Doordarshan has not been responding to their letters and that meanwhile several foreign TV organisations and networks have been app.roaching them to telecast their matches to the Indian audience. The letter also referred to their information received from some other sources that Doordarshan is interested in acquiring the rights of telecast provided it is allowed to produce some matches directly and

I MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [B.P. JEEVAN REDDY, J.) 1135

that matches produced by TWI are made available to Doordarshan without payinent of technical fees. The letter indicated the matches which Door- ..,. darshan would be allowed to telecast directly and the matches which TWI was to telecast directly. This offer was, however, subject to certain condi- tions which inter alia included the condition that Doordarshan will not pay access fee to CAB but shall allow four minutes'advertising time per hour (i.e., a total of twenty eight minutes in seven hours) and that CAB will be at liberty. to sell such time slots to advertisers and receive the proceeds therefor by itself.

On October 27, 1993 Doordarshan replied that they are not inter- ested in the offer made by CAB in its letter dated October 18, 1993. They C stated that they have never agreed to any joint production with TWI. On October 29, 1993, CAB again wrote to Doordarshan expressing their regret at the decision of the Doordarshan conveyed in their letter dated Septem- ber 27, 1993 and stated, " ..... purely in deference to your sensitivity about taking a signal from TWI, CAB would be quite happy to allow you production of your own picture of matches; you may like to buy rights and D licence from CAB, at a price to be mutually agreed upon. We would also like to clarify that these rights will be on non-exclusive basis for Indian territory". Doordarshan's response was requested at the earliest. On Oc- tober 30, 1993, Doordarshan confirmed its message sent that day express- ing their refusal to pay any access fee to CAB and stating further that if E Doordarshan has to telecast the matches live, CAB has to pay technical charges/production fee at the rate of Rupees five lacs per match and that Doordarshan shall have exclusive rights for the signal generated. There was a further exchange of letters, which it is unnecessary to refer.

F While the above correspondence was going on between CAB and Doordarshan, the CAB applied for and obtained the following permissions from certain departments. They are :

(a) On September 2, 1993, the Government of India, Ministry of Human Resource Development (Development of Youth Affairs and G Sports) wrote to CAB stating that government has no objection to the proposed visit of the cricket teams of the participating countries in Novem- ber 1993. The government also expressed its no objection to provide the conversion facility for guarantee money and prize money for foreign players subject to a particular ceiling. H

1136 SUPREME COURT REPORTS (1995] 1 S.C.R.

A (b) Videsh Sanchar Nigam Limited (VSNL) indicated its charge for providing uplink facility to INTELSAT and acc.epted the said charges when paid by the CAB/TWI.

(c) On October 13, 1993 the Government of India, Ministry of Home Affairs wrote to CAB expressing its no objection to the filming of cricket B matches and to the use of walkie-talkie sets in the playground during the matches. It also expressed its no objection in principle to the production and technical staff of TWI visiting India.

(d) On October 20, 1993, the Department of Telecommunications C addressed a letter to the Central Board of Excise and Customs expressing its no objection to temporary import of electrical production equipment required for transmission of the sai~ matches between November 7-27, 1993 subject to the organisers coordinating with wireless planning commit- tee for frequency clearance and also with VSNL. · ·" D (e) On November 2, 1993, the Ministry of Finance (Department of Revenue) addressed a letter to Collector of Customs, Sahar Airport, Bombay intimating him of the grant of exemption from duty for the temporary import of electrical equipment by TWI, valued at Rs. 4.45 crores subject to certain conditions. E Inasmuch as no agreement could be arrived at between CAB and Doordarshan, the Department of Telecommunications addressed a letter to VSNL on November 3, 1993 (on the eve of the commencement of tlie matches) to the following effect: "Refer to your letter No. 18-IP(TWI)/93- TG dated 13.10.1993 and discussion of Shri V.Babuji with W.A. on F 2.11.1993 regarding regarding uplink facility for telecasting by TWI of C.A.B Jubilee Cricket matches. You are hereby advised that uplink - ... facilities for this purpose should NOT repeat NOT be provided for T.W.I. This has the approval of Chairman (TC) and Secretary, DOT. Kindly confirm receipt." The VSNL accordingly intimated CAB of its inability to grant uplinking facility and also returned the amount received earlier in that behalf.

Faced with the above developments, the CAB approached the Cal· cutta High Court by way of a writ petition being Writ Petition No. F.M.A.'I. Nil of 1993 asserting that inspite of their obtaining all permissions including the TV uplinking facilities from VSNL as contemplated by the proviso to

MIN. OF JNFORMATION AND BROADCASTING"· CRICKET ASSN. OF BENGAL [B.P. JEEVAN REDDY, J.] 1137

Section 4 of the Indian Telegraph Act, Doordarshan - and other governmental authorities at the instance of Doordarshan - are seeking to block and prevent the telecast of the matches by TWI. The reliefs sought for in the writ petition are the following :

(i) A mandamus commanding Respondents 1, 3 and 4 (Union of India, Director General, Inforillation and Broadcasting and Director B General Doordarshan) and other respondents to ensure uninterrupted and unobstructed telecast and broadcast of Hero Cup tournament between November 10-28, 1993 and to take all appropriate measures for such telecast and broadcast.

(ii) A mandamus to the respondents to provide all arrangements and c facilities for telecast and broadcast of the Hero Cup tournament by the appointed agencies of the petitioners.

(iii) A mandamus restraining the respondents from seizing, tamper- ing with, removing or dealing with any equipment relating to transmission D telecast and broadcast of the said tournament; and

(iv) Restraining the respondents from interfering of disrupting in any manner the live transmission and broadcast of the said tournament by the petitioners and their agents. E A learned Single Judge of the Calcutta High Court heard the matter on November 8, 1993. The learned judge directed the matter to· come up on the next day with a view to enable the Advocate for the Union of India to obtain necessary instructions in the matter. At the same time, he granted an interim order of injunction in terms of prayers (i) and G) in the writ petition effective till the end of the next day. Prayers (i) and G) in the writ F petition read as follows :

"(i) Interim order commanding the Respondents, their servants, agents, employees or otherwise to provide all adequate assistance and cooperation to the petitioners and/or their appointed Agency G for free and uninterrupted telecast and broadcast of HERO CUP Tournament between 10th November, 1993 and 28th November, 1993;

G) An interim order of injunction restraining the Respondents their servants, agents, employees and others from tampering with, H

1138 SUPREME COURT REPORTS [1995] 1 S.C.R.

A removing, seizing or dealing with any equipments relating to trans- mission telecast and broadcast of HERO CUP TOURNAMENT belonging to and/or their appointed agency in any manner what- soever."

The order made it clear that the said order shall not prevent Door- B darshan from telecasting any match without affecting any arrangement arrived at between CAB and TWI.

On the next day, i.e., November 9, 1993, the learned Single Judge heard the Advocate for the Union of India. but declined to vacate the C interim order passed by him on the previous day. He further restrained the respondents to the writ petition for interfering with the frequency lines given to the Respondent No. 10, i.e., TWI as per request made by VSNL to INTELSAT in view of the fact that VSNL had accepted the proposal of CAB and TWI and had also received the fees therefor. On November D 11, 1993, the learned Judge passed another order, on the representation of the J~arned counsel for the writ petitioners, that the equipment brought by TWI for the purpose of production of transmission and telecasting of cricket matches, which was seized by the Bombay customs authorities, allegedly under the instructions of the Ministry of Telecommunications and Ministry of Information and Broadcasting, be released. The learned Judge E directed that all the governmental authorities including the customs authorities shall act in accordance with the interim orders dated 8/9th November, 1993. Meanwhile, it appears, certain individuals claiming to be interested in watching cricket matches on television filed independent writ petitions for a direction to the Doordarshan to telecast the matches. The F learned Judge expressed the opinion that by their internal fight between Respondents 1 to 5 on one hand and respondent No. 6 (reference is to the ·, ranking in the writ petition) on the other, millions of viewers in India are deprived of the pleasure of watching the matches on television. He then referred to the representation that at the instance of Doordarshan and others, All-India Radio (AIR) too has stopped broadcasting the matches. G The learned Judge observed that there is no reason for AIR to do so and accordingly directed the Union of India and others including the Ministry of Information and Broadcasting to broadcast the remaining cricket matches on AIR as well.

H ·Aggrieved by the orders of the learned Single Judge aforemen-

MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL (B.P. JEEVAN REDDY, J.] 1139

tioned, the Union of India and other governmental agencies filed a writ A appeal (along with an application for stay) which came up for orders on November 12, 1993 before a Division Bench of the Calcutta High Court. It was submitted by the learned counsel for the Union of India that though the Doordarshan is very much keen to telecast the matches, the CAB has really created problems by entering into an agreement with TWI. He B submitted that under Section 4 of the Telegraph Act, 1885, tht Central Government has the exclusive privilege to establishing, maintaining and working telegraph and that the definition of the expression "telegraph" includes telecast. He submitted that neither CAB nor TWI have obtained any licence or permission as contemplated by the proviso to Section 4(1) of the IQ.dian Telegraph Act and, therefore, TWI cannot telecast the matches· from any place in Indian territory. After referring to the rival contentions of .the parties and the correspondence that passed between them, the Division Bench observed that there were two dimensions to the problem arising before them, viz., (i) the right to telecast by Doordarshan within India and (2) right of TWI to telecast outside India for viewers outside India. Having regard to the urgency of the matter and without going into the merits of the rival contentions, and keeping in view the interest of millions of viewers, the Division Bench observed: "we record, as Doordarshan is inclined to telecast the matches for the Indian viewers on receipt of Rs. 5 lakhs per match and to enjoy the exclusive right of signalling within the country being the host broadcaster, we direct the CAB to pay immediately a sum of Rs. 5 lakhs per match for this purpose and the collection of revenue on account of sponsorship or otherwise in respect of 28 minutes which is available for commercial purpose be realised by the Doordarshan. on condition that such amount shall be kept in a sep~ate account and shall not be dealt with and dispose of the said amount until further orders" to be passed in the said writ appeal. The Doordarshan was acco~dingly. directed to immediately start telecasting the matches. The Bep;ch .then took up the question whether TWI is entitled to telecast the mat¢.hes from Indian territory. It noted that no formal order as required I under the proviso to Section 4(1) of the Telegraph Act has been granted in favour of either CAB or TWI. Purporting to take notice of the national and international impact of the issue, the Bench directed the 5th appellant before them, viz., the Secretary, Ministry of Telecommunications, Govern- ment of India "to consider the facts and circumstances of the case clearly suggesting that there had already been an implied grant of pennission, shall H

1140 SUPREME COURT REPORTS [1995] 1. S.C.R.

A grant aprovisional pennission or licence without prejudice to the rights and contentions of the parties in this appeal and the writ application and subject to the condition that Respondent No. 6 (5th appellant in appeal) in the + writ application will be at liberty to impose such reasonable terms and conditions consistent with the provision to Section 4(1) of the Indian B Telegraph Act having regard to the peculiar facts and circumstances of the case." (emphasis added). The Secretary was directed to decide the said question within three days from the date of the said order after hearing all the parties before the Division Bench, if necessary.

On November 14, 1993, the matter was again taken up by the Division C Bench, on being mentioned by the parties. The first problem placed before the Bench was placement of cameras. The Doordarshan authorities com- plained that they have not been given suitable place for the purpose of telecasting. Doordarshan further submitted that there can only ·be one signalling from the field and that in terms of the orders of the Division Bench, Doordarshan should be the host broadcaster and TWI should take D the signal from Doordarshan. This request was opposed by the CAB and TWI. The Bench directed that according to their earlier order the TWI is ' entitled to telecast outside the country and to send their signal accordingly and in case the signalling is required to be made by TWI separately, the necessary permission should be given by the Doordarshan and other com- E petent authorities therefor. Regarding placement of cameras, certain direc- • tions were given.

Aggrieved by the orders of the Division Bench dated 12/14th Novem- ber, 1993, the Secretary, Ministry of Information and Broadcasting, F Government of India, Director General, Doordarshan and Director General, Akashvani filed two Special Leave Petitions in this court, ·viz., S.L.P. (C) Nos. 18532-33 of 1993. Simultaneously, CAB filed an inde- pendent writ petition is this Court under Article 32 of the Constitution being W.P. (C) No. 836 of 1993. The prayers in this writ petition are practically the same as are the prayers in the writ petition filed in the G Calcutta High Court. The additional prayer in this writ petition related to release of equipment imported by TWI which was detained by customs authorities at Bombay. On November 15, 1993, this court directed the Secretary. Ministry of Telecommunications, Government of India to hold the meeting, as directed by the Calcutta High Court, at 4.30 P .M. on that very day (November 15, 1993) and communicate the decision before 7.30

MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL (B.P. JEEVAN REDDY, J.J 1141

P.M. to TWI or its counsel or to CAB or its counsel. The customs authorities were directed to release the equipment forthwith. The TWI was, however, restrained from using the equipment for telecast purpose unless a licence is issued by the Secretary, Ministry of Telecommunications in that behalf.

Pursuant to the orders of this court, Shri N. Vithal, Chairman, B Telecommunications and Secretary, DOT passed orders on November 15, 1993 which were brought to the notice of this court on that very.day. This court stayed the said order to the extent it imposed a condition that TWI will get their signal from Doordarshan for uplinking through VSNL. The TWI was permitted to generate their own signal by focussing their cameras C on the ground. It was observed that the ·said order shall not be treated as a precedent in future' since it was made in the particular facts and cir- cumstances of that case. '· ' ' \ ., '' . - ' The matches were telecast in accordance with the directions given by this Court and the Hi~ Court but the Special Leave Petitions and the D Writ Petition remained pending. While so, a new development took place in 1994 which now requires to be mentioned. · ·· 1.. J. . I (

. In connection with World Cup. Matches scheduled for the year t996, certain correspondence took place between Doordarshan and the ·Board E of Cricket Control, India (BCCI). While the•said cgrrespondence wa:s in progress, each side re-affirming their respective stand, BCCI arranged certain international cric~et matches to be . played between the national teams of lndia,i West .Ii:t.dies .<!lld ..N.e.w-z.ealand during the months, ~f Octobe:r-:Qe~mber, 1994. J;JCClenter~<JJnto a11.agreement with ESPN, a foreigq agen_cy, for telecasting all the 1 cricke_t ma~ches organised by BCCI ,F ii). W,<;lie;t for the ne~ fi-ve ,Years for a cons~deratiQD of US $30 millio~. Doord¥- was,wtally exclude<J,. ESPN in turn made .an offer to Door- darsban to purchase the.. rigi!t to te\equ;t th!'! ~tches in India.from ESPN at a p~ticular considerjltjpn whicp. the Doord,arshan decli~d,

On September" ;1994; we c~~enced the hearing of th~~~ ~atters. G W, While the.Hearing ~as . in progre~s; the BC-CI fiJed a. writ petiti~n, being W~itJ>~tit~n l'fo:'6~.8f,!994,:f?r.is~uai.i~ ~f ~~it, ~~der or direction to the respondents (Government of India and its various departments and ~gencieli) ·i~ is;ue and ~ant the necessary licences and/or perntlssions in aq::o.rdanc~ With ''1~w lto_ BCCI o~ its appointed .agencies for proquction, H .. t.. .,,J \. • . • - , J ii ' ""-' ,_. • ' •

1142 SUPREME COURT REPORTS [1995] 1 S.C.R.

A transmission and live telecast of the ensuring international cricket matches to be played during the months of October - December, 1994 and to restrain the Doordarshan and other authorities from interfering wi~h or obstructing in any manner the transmission, production, uplinking and telecast of the said matches. This writ petition was occasioned because the authorities were said to be not permitting ESPN to either bring in the necessary equipment or to telecast the matches from the Indian territory. The said writ petition was withdrawn later and Interlocutory Applications filed by the BCCI in the pending special leave petition and writ petition seeking to be impleaded in those matters and for grant of relief similar to those prayed for in Writ petition No. 628 of 1994. Since the hearing was yet to be concluded, we passed certain order similar to those passed by this court earlier - confined, of course, to the matches to be played during the months of October-December, 1994.

CONTENTIONS URGED BY THE PARTIES AND THE QUES- TIONS ARISING FOR CONSIDERATION: D The CAB and BCCI have taken a common stand, were represented by the same counsel and have also filed common written submissions. It is not possible to reproduce all their contentions as put forward in thejt written submissions because of the number of pages they run into. It woUid ·E suffice if I set out their substance. The submissions are :

(a) CAB and BCCI are non-profit-making sporting organisations devoted to the promotion of cricket and its ideals. They organise interna- tional cricket tournaments and series from time to time which call for not p only good amount of organisation but substantial expense. Payments have to be made to the members of the teams participating. Considerable amount of money has to be expended on the training of players and providing infrastructural facilities in India. All this requires funds which have to be raised by these organisations on their own. Accordingly, CAB G . entered into an agreement with TWI for telecasting the Hero Cup Tour- nament matches to be played in the year 1993. The necessary permissions were applied for and granted by the Ministries of Home, Defence, Human Resource Development and Telecommm.}ications. The Ministry of Telecommunications/VSNL accepted the :nonies for the purpose of providing uplinking facilities, which does amount to implied grant' of per- H mission under the proviso to Section 4(1) of the Telegraph Act. In any

MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL (B.P. JEEVAN REDDY, l.J 1143

eve<nt, the acceptance of the monies made it obligatory upon the ministries A to grant the said licenee. It is only on account of the interference and lobbying by Doordarshan and Ministry of Information and Broadcasting .. that the order ministries went back and refused to permit the telecast. The action of the Doordarshan and the Ministry of Information and Broadcast- ing is malafide, unreasonable and authoritarian besides being illegal. B (b) The game of cricket provides entertainment to public. It is a form of expression and is, therefore, included within the fr.;:edom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. This right includes the right to telecast and broadcast the matches. J'his right belongs to the organiser of the matches which cannot be interfered with by anyone. C The organiser is free to choose such agency as it thinks appropriate for telecasting and broadcasting its matches. The Doordarshan or the Minj.stry of Information and Broadcasting can claim.no right whatsoever to telecast or broadcast the said matches. If they wish to do so, they must negotiate with the organiser and obtain the right. They have no inherent right, much D less a monopoly, in the matter of telecasting and broadcasting these matches. It is not their events. If the organisers, CAB and BCCI herein, choose to entrust the said rights to a foreign agency, such foreign agency is merely an agency of the organisers and the mere fact that it happens to be a foreign agency is no ground for depriving the organisers, who as Indian citizens, are entitled to the fundamental right guaranteed by Article E 19(1)(a). The said right can be restri~cd or regulated only by a law made· with reference to the grounds mentioned in clause (2) of Article.19 and on no other ground.

(c) Section 4 of the Indian Telegraph Act must be understood and F construed in the light of Article 19{1)(a). So read and understood, it is only a regulatory provision. H a person applies for a licence for telecasting or broadcasting his Speech and expression - in this case the game of cricket - the appropriate authority is bound to grant such licence unless it can seek refuse under a law made in terms of clause (2) Article 19. The appropriate authority cannot also impose such conditions as would nullify or defeat the G· guaranteed freedom. The conditions to be imposed should be reasonable and relevant to the grant.

( d) Doordarshan or AIR has no monopoly in the matter of teleca..~t- · ing/broadcasting. Radio and television are only a medium through which H

1144. ' ' . SUPREMECOURTREPORTS

.A freedom of speech and expression is expressed. Arti~le 19(2) does not permit any monopoly as does clause (6) in the nU.tier of Article 19(1)(g); Section 4, which contemplates grant of telegraph licences is itself destruc- tive of the claim of monopoly by Doordarshan/AIR. \ . ' ~ :(e) Right t~ disseminate and receive information is a part.of the right B guaranteed by Article 19(1)(a). Televising the cricket match is form of dissemination of information. The mere fact that the organisers earn some .. i,;come from such activity does not make it anytheless a form of expression. ' It has been held repeatedly by this court in the matter of freedom of press .that the mere fact that publication of newspaper has also certain business· cl features is no ground to treat it as a business proposition and that it · ·• remain:; an activity relatable to Article 19(1)(a). Business activity is not the main but only an incidental activity of CAB/BCCI, the main activity being promotion of cricket. It follows that ~henever any citizen of this country seeks to exercise that right, ·all necessary permissions have to be granted by the appropriate authorities. The only ground upon which it can be D refused is with reference to law made in the interest of one or the other ground mentioned in Article 19(2) and none else•

.' (I) With the technological advance and the availability ~f a large number of frequencies and channels, being provided by the increase num~ E her of satellites, the ariument of fuitlted frequencies and/or scarce resource is no longer tenable. The BCCI does not want allotment of frequency-not even the uplinking fa~ty; smce it has the facility io uplink directly from the earth station to· Gorlzon-Russion. satellite ·- with which ESPN has an arrangement. All that the BCCI wants is a licence/permission for importing and operating the earth station, wherever the match is played. In such an F. 'eventuality, Doordarshan does not come into picture at all Of course, in ro,;nection with He~o Cup matches, the CAB wanted uplinkitig facility for the r~ason that it wanted uplinking to INTELSAT, which is provided only .. !hr(;c;gh VSNL If an organiser does.not want uplinking to INTELSAT, he. need not even approach VSNL As a matter of fact, major networks in G ; l[nited Stat~~ have their o'IVn satellites. ·· · .

'· -~ On the other hand, the submissions on bi:half of the Doordafshan and . the Ministry of Information and Broadcasting are the following : ·

· (i) The CAB or for that matter BCCI did not even apply for a licence; H · Ullder the proviso to Section 4(1) nor was such licence granted by the "

MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OP BENGAL [B.P. JEEVAN REDDY. J.) l 145 appropriate authority at any time or on any occasion. The grant of permis- A sion by other departments including the collection of fees by VSNL does not amount to and cannot take the place of licence under the proviso to Section 4(1). In the abseece of such a licence, the CAB/BCCI or their agents had no right to telecast or broadcast the matches frotn the Indian territory. The argument of implied permission - or the alternate argument B that the authorities were bound to gr~t such permission - is misconceived, more particularly, in the absence of even an application for grant of licence under Section 4 of the Telegraph Act.

(ii) The Calcutta High Court was not right in giving the directions it did. Particularly the direction given in its order dated November 12, 1993 C to the Secretary, Ministry of Telecommunications, Government of India, was contrary to law. While directing the Secretary to consider the facts and circumstances of the case, the High Court expressly opined that there was already an implied grant of permission. After expressing the said opinion the direction to consider was a mere formality and of little significance. D The charge of malafides and arbitrary and authoritarian conduct levelled against Doordarshan and a Ministry of lnformation and Broadcasting is wholly unfounded and unsustainable in the facts and circumstances of the case. In the absence of a licena,e under Section 4 of the Telegraph Act, VSNL could not have granted uplinking facility and it is for that reason E that the Department of Telecommunications wrote its letter dated Novem- ber 3, 1993 to VSNL.

(iii) Realising the lack of coordination among the various ministries concerned in granting permission in such a matter, the Government of India has since taken a policy decision in the meeting of the Committee of F Secretaries held on November U, 1993. It has been decided that satellite uplinking from the Indian soil should be within the exclusive tompetence of the Ministry of Information and Broadcasting/Department of Space/Department of Telecommunications and that similarly the telecast of sports events shall be within the exclusive purview of the Doordar- G · shan/Ministry of Information and Broadcasting who in turn could market their rights to other parties on occasion in whole or in part. It has been further decided that in respect of any such 'event, the organiser shall contact the specified nodal ministry which in turn will coordinate with all other concerned departments. In short, what may be called a 'single .H

1146 SUPREME COURT REPORTS [1995] 1 S.C.R.

A window system' has been evolv_ed which is indeed in the interest of or- ganisers of such events.

(iv) So far as the contention based upon .Article 19(i)(a) is con- cerned, the contentions of CAB/BCCI are misleading and over- simplistic. B The right guaranteed by Article 19(1)(a) is not limited to organisers of such sports events. The said right is guaranteed equally to the broadcaster and the viewers. Among them, the ·right of the viewers is the more important one. The decisions rendered by this court in the matter of freedom of press are not strictly relevant in the matter of broadcast/telecast. Telecasting a sports event is distinct from the event it~elf. It is evident that the C CAB/BCCI are seeking to earn as much as possible by selling the telecast- ing rights. It is nothing but commerce and an activity solely relatable to Article 19(1)(g) and not to Article 19(1)(a). Inviting bids from all over the .. world and selling the telecast rights to the highest bidder has nothing to do with Article 19(1)(a). In any event, the predominant element in such D activity is that of business. The interest of general public is, therefore, a relevant consideration in such matters. The public interest demands that foreign agencies should not be freely permitted to come and set up their telecasting facilities mIndia in an unrestricted fashion. The occasion for inviting foreign agencies may possibly arise only if Doordarshan and AIR E refuse to telecast or broadcast the event which they have never done. The Doordarshan was and is always ready to undertake the telecasting on reasonable terms but the CAB and BCCI were more interested in deriving maximum profit from the event. Doordarshan cannot certainly compete with foreign agencies who are offering more money not merely for obtain- F ing the right to telecast these events but with the real and ultimate object of gaining a foothold in the Indian telecasting scene. Through these events, the foreign telecasting organisations, particularly ESPN, are seeking entry into Indian market and it is for the reason that they are prepared to pay more. Their interest is something more than more commercial.

G (v) The present situation is that the Doordarshan and AIR has got all the facilities of telecasting and broadcasting the events in India. They have been doing it for over the last several decades and they have the necessary infrastructure. The Doordarshan is taking all steps for updating its equipment and for training its technicians to handle the latest equip- H ment. It.. is also entering into tie-ups with certain foreign agencies for the

MIN. OF INFORMATION AND BROADCASl'INGv. CRICKET ASSN. OF BENGAL (B.P. JEEVAN REDDY, J.J 1147

purpose. They have always been prepared for any reasonable terms. Both . A Doordarshan and· AIR are agencies of the State. Until recently, 97% of the telecasts made by Doordarshan did not earn any income. They only in- volved expense. Its income was derived mainly from the remaining three per cent of its activities including sports events like cricket. Recently, there . has been a slight change in policy but the picture largely remains the same. B There is nothing illegitimate or unreasonable in Doordarshan seeking to earn some money in the matter of telecast of such events.

(vi) The very nature of television media is such that it necessarily involves the marshalling of the resource for the greatest public good. 'rhe state monopoly is created as a device to use the resource for public good. C It is not violative of the right of free speech so long as the paramount interest of the viewers is subserved and access to media is governed by the 'fairness doctrine'. Section 4 of the Telegraph Act cannot be faulted on any gro;md. Indeed, in none· of the petitions filed by the CAB/BCCI has the validity of the monopoly of Doordarshan questioned. If the argument of the CAB/BCCI is accepted it would mean a .proliferation of television D stations and telecasting facilities by all and sundry, both domestic and foreign, which would not be in the interest of the country. Indeed, the other side has not placed any material to show that such free grant of licences would serve the public interest. E (vii) Section 4 of the Telegraph Act is in no way inconsistent with the monopoly of Doordarshan/AIR. Indeed, it supports it. The American decisions are not really relevant to the Indian context. The availability of more or unlimited number of frequencies or channels is no ground. to permit free and unrestricted import, establishment and operation~- of Radio!felevision stations, earth stations or other such equipment. · F

In the light of the contentions advanced, the following questions arise for consideration :

1. (a) Whether a licence or permission can be deemed to have been granted to CAB under the proviso to Section 4 of the Indian Telegraph G Act, 1885 for telecasting the Hero Cup Tournament matches played November, 1993?

(b) If it is found that there was no such permission, was it open to the Calcutta High Court to give the impugned directions? H

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

A ·< - (c) Whether the charge of malafides and arbitrary and authoritarian · ccinduct attributed to Doordarshan by CAB justified?.

2.(a) Whether organising a fricket match or other sports event aform of speech and expression guaranteed by Article 19(1)(a) 'of the Constitu- tion? B· _(b) If the question in Clause (a) is answered in the affirmative, the further question is whether the right to telecast such event is also included within the right of free-speech and expression? · , ,·: - -' . I , \ ' . • .

I (c) Whether the organiser of such sports events can claim the right c to ~ell the telecasting rights of such events to .such agency as they think , p~oper and whether they have the right to comJJel the government to issue all requisite permissions, licences and facilities to enable such agency to . telecast the events from the Indian soil? Does the right in Article 19(1)(a) take in all such rights? - -· · · - D ·:-•. . >_;:..-. . (d) If the organiser of sports does have ili~iights mentioned in (c), whether the government is not entitled to impose any' conditions thereon exeept charging technical fees or service charges, "as the case may be? - '

· 3. Whether the impact of Article 19(1)(a) upon Section 4 of the ·E Telegraph Act is that whenever a citizen applies for a licence under the I . " . . · · proviso to Section 4(1) it should be granted unless the refusal can be traced io a law within the meaning of Article 19(2)?

· 4. Whether the virtual monopoly existing in favour of Doordarshan in the matter of telecasting from Indian soil violative of Article 19(1)(a) of F the Constitution? ·

- -- - - --- --_ -- · . ANSWERS TO THE QUESTIONS:

. ' QUESTION NO. I : G , . Thefa_cts narrated in Part-II show .that neither CAB nor BCCI ever applied for· a licence under the first proviso to sub-section (1) of Section 4 of the Telegraph Act. The permissions obtained from other departments, viz., from the Ministry of Human Resource, VSNL, , ..Ministry of Home Affairs,· Ministry of Finance or the Central Boord of Excise and Customs .H cinnot take the place of licence under Section 4(1). Indeed, this fact was.

MIN. OF INFORMATION AND BRO~Gv. CRICKET ASSN. OF BENGAL [B.P. JEEVAN REDDY, J.J 1149

recognised by the Division. Bench of the Calcutta High Court and it is for A the said reason that it directed the s·ecrefary to 'the Telecom Department + to decide the question whether such licence should be granted to CAB in connection with Hero Cup matches. But while directing the Secretary to consider the said question, it chose to make certain obser\rations which had the effect of practically foreclosing the issue before the Secretary. The B Division Bench observed that the Secretary should proceed on the assump- tion that there was an implied grant of permission. As a matter of fact, the Secretary' was directed to grant the licence in so many words, thus leaving no discretion in him to examine the matter in accordance with law. It became an empty formality. I am of the opinion that while asking the Secretary to decide the issue under proviso to Section 4(1), his discretion C and judgment could not have been restricted of fore-stalled in the above manner. Be that as it may, in pursuance of the said directions - and the directions of this Court - the Secretary passed certain orders, the legality of whicli has now become academic_ for that both the events, viz., the Hero Cup matches as well as the recent international matches (October ~ D December, 1994) are over. The orily thing that remains to be considered is whether the charge of tnalafides and arbitrary and authoritarian conducted attributed to the Doordarshan by CAB the BCCI is justified. Firstly, neither the CAB nor its foreign agent had applied for or obtained the licence/permission under Section 4(1). The permissions granted by other E departments are no substitute for the licence under the proviso to Section 4(1). There is nothing to· show that seizure of imported equipment by customs authorities was at the instance of Doordarshan; it appears to be for non-compliance with the requirements subject to which permission to import was granted. Secondly, this issue, in my opinion, cannot be ex- amined in isolation but must be judged in the light of the entire relevant F '·I - context. The Doordarshan did enjoy monopoly of telecasting in India which is the product of and appears to be sustained by Section 4(1) of the Telegraph Act. There was no occasion when a foreign agency was allowed into India without the consent of or without reference to Doordarshan to telecast such events. All these years, it was Doordarshan which was G telecasting these matches. On one previous occasion, a foreign agency was allowed but that was by the Doordarshan itself or at any rate with the consent of and in cooperation with the Doordarshan. It is for this reason that the Doordarshan was asserting its exclusive right to telecast the event taking place on Indian soil and was not prepared to purchase the said right H

1150 SUPREME COURT REPORTS (1995] 1 S.C.R.

A from a foreign agency to whom the CAB and BCCI sold all their rights. It is also worth noticing that neither CAB nor for that matter any other sports organisation had ever before invited a foreign agency to telecast or broad- . cast their events - at any rate, not without the consent of Doordarshan. The agreement with TWI entered into by CAB and the agreement with ESPN entered into by the BCCI were unusual and new developments for all concerned. Like the bureaucracy everywhere, the Indian bureaucracy is also perhaps slow in adjusting .to the emerging realities, more particularly when they see a threat to their power and authority in such developments. In the circumstances, their objection to a foreign agency coming in and telecasting such events without even obtaining a licence under the proviso to Section 4(1) of the Telegraph Act cannot be termed malafide or ar- .bitrary. So far as the charge of authoritarianism is concerned, it is equally unsustainable for the reason that the CAB/BCCI had no legal right nor any justification in insisting upon telecasting their events through foreign agen- cies without even applying for and/or obtaining a licence required by law. D The correspondence between them shows that each was trying to get the better of the other; it was like a game of fencing. In my opinion, therefore, the charge of malafides or for that matter, the charge of arbitrary or authoritarian conduct levelled against the Doordarshan and/or other governmental authorities is unacceptable in the facts and circumstances of this case. E QUESTION NOS. 2, 3, AND 4:

The contentions of Sri Kapil Sibal, learned counsel for the BCCl/CAB have been set out hereinbefore. What do they really mean and F imply? It is this: the game of cricket provides entertainment to public at large. The entertainment is organised and provided by the petitioners. Providing entertainment is a form of expression and, therefore, covered by Article 19(1)(a) of the Constitution. Except in accordance with a law made in terms of clause (2) of Article 19, no restriction can be. placed thereon. The organiser of the game has the right to telecast and broadcast the game. G None can stop it - neither the Doordarshan nor AIR. The monopoly in faV01!J'. of Doordarshan and AIR is inconsistent with Article 19(1)(a) as well as Section 4 of the Telegraph Act. If Section 4(1) is construed as ' conferring or a(firming such monopoly, it is void and unconstitutional may fall foul of Article 19(1)(a). The first proviso to Section 4(1) is bad for the H added reason that it or the Act does not furnish may guidance in the matter

MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL (B.P. JEEVAN REDDY, J.] 1151

or exercise of discretion conferred upon the Central Government there- A under. The organiser of the game is free to choose such agency as he thinks appropriate for telecasting and broadcasting the game - whether domestic or foreign-and if the organiser asks for a licence under the proviso to Section 4(1) for importing and operating the earth station or other equip- ment for the purpose, it must be granted. No conditions can be placed B while granting such permits except collection of technical fees. This in substance is the contention. It must be said at once that this may indeed be the first decision in this country, when such an argument is being addressed, though such arguments were raised in certain European courts and the European Court of Human ~ights, with varying results as we shall indicate in a little while. C

. There may be no difficulty in agreeing that a game or cricket like any other sports event provides entertainment - and entertainment is a facet, a part, of free speech. See Burstyn v. Wilson, 96 L.Ed. (1098), subject to the caveat that where speech and conduct are joined in a single course of action, the free speech values must be balanced against competing societal interests. Los Angeles v. Preferred Communications (1986) - 476 U.S. 488 = 90 L. Ed. 2d. 480. It attracts a large audience. But the question is whether the organiser of the event can say that his freedom of expression takes in the right to telecast it from the Indian soil without any restrictions or regulations. The argument really means this, 'I have a right to propagate my expression, viz., the game, by such means as I think appropriate, I may choose to have a television station of my own or I may invite a foreign agency to do t~e job. Whatever .I wish, the State must provide to enable me to propagate my game. I may make money in the process but that is immaterial'. In effect, this is an assertion of an absolute and unrestricted right to establish private radio and television stations, .since there is no distinction in principle between having a mobile earth Station (which beams its programmes to a satellite via VSNL or directly to another satellite which in turn beams it back to earth) and a statimrary television station. Similarly,· there is no distinction in law between a permanent telecasting facility and a facility for a given occasion. Question is, is such G a stand acceptable within the framework of our Constitution? (The ques- tion relating to interpretation of Section 4(1), I will deal with it separately.) I may clarify that I am concerned herein with 'live telecast' which requires the telecast equipment to be placed at or near the field where the event is taking place, i.e., telecasting from the Indian territory. This clarification is H

.\ ' :-- . . 1152 ' . SUPREME COURT REPORTS (1995) 1 S.C.R. \ . .A appended in view of the_ contention urged that nothing prevents the or- ganises - or for that matter, anybody - from video recording the event and then take the video cassette out" of this country and telecast it from outside stations. Undoubtedly, they can do so. Only thing is that il will not be a live telecast and it would also niit be a telecast from the Indian soil.

Article 19(1)(a) declares that all citizens shall have the right of freedom.of sp~~ch and eXjire5sion.-Clause (2) of Article:19, at the same time, provides that nothing in sub-clause (i) of clause (1) shall effect the operation of any eri<ting law or prevent the Stale from making any law, insofar a• such law imposes reasonable restrictions on the· eXercise of the C right' conferred by the· said sub-clause in the interests of ihe sovereignty and integrity of India, the security of the State, friendly relations with the foreign States, public order, decency or. morality or in relation to contempt of court, defamation or incitement of an offence. The grounds upon which · · reasonable restrictions can be placed upon the freedom of speech and D · expression are designed firstly to ensure that the said right is not exercised in such a manner as to threaten the sovereignty and integrity of India, security of the State, friendly relations with the foreign States, public order, decency or morality. Similarly, the said right cannot be so exercised as to .: amount to .contempt of court, defamation or· incitement of an offence. Existing laws providing such restrictions are saved and the State is free to E make laws in future imposing such restrictioDs. The grounds afcirCsaid are .conceived in the interest of ensuring and maintaining conditions in which the said _right can meaningfully and peacefully be exercised by the citizens of this country.

F The freedom of speech and expression is a right gi~n to every citizen of this country and not merely to a few. No one can exercised his right of · speech in such a manner as to violate another man's right of speech. One , man's right to· speak ends where the other man's right to speak begins. :·Indeed it may be the duty of the State to ensure that this right is available to all in equal measure and that i.t is not hijacked by a few to the detriment · ·G · of the resL This obligation flows from the preamble to our Constitution, . . which seekSt~ secure to all its citizens liberty of thought, expression, belief and worship." State being a product of the Constitution is as much com- mitted to this goal as any citizen of this country . Indeed, this obligation also flows from the injunction in Article 14 that 'the State shall not deny H to any person equ3lity before ihe law' and the direction in Article 38(2) to c : •

MIN. OF INFORMATION AND BRO~G v. CRICKET ASSN. OF BENGAL [B.P. JEEVAN REDDY, J.) 1153 I , 11

the effect: "the State, shall, in particular - endeavour to eliminate ine- A q·ualities in status, facilities ~nd opportunities, not only amongst individuals but also amongst groups of people ....... " Under our Constitutional scheme, the State is not merely under an obligation to respect the fund;;imental rights guaranteed by Part-III but under an equal obligation to ensure conditions in which those rights can be meaningfully and effectively enjoyed by one and,, all. · B

The fundamental significance of this freedom has been stressed by this Court in a large number of decisions and it is unnecessary to burden this judgment with those decisions. Freedom of speech and expression, it has been held repeatedly, is basic to and indivisible from a democratic polity. It encompasses freedom of press. It includes right to impart and receive information. The question now in issue is: does it include the freedom to broadcast and telecast one's views, ideas and opinions and whether, if one wishes to do so, is the State bound to provide all necessary licences, permits and facilities therefor? This requires an examination of the history of broadcasting and telecasting in the country as well as in certain leading democracies in the world. In this judgment, the expression "broad- casting media" wherever used denotes the electronic media of radio and television now operated by AIR and Doordarshan - and not any other radio{fV services. E •INDIA:·

Though several countries have enacted laws on the subject of broad- casting, India has not. The Indian Telegraph Act, enacted in 1885 (as amended from time to time) is the only enactment relevant in this behalf. Clause (1) of Section 3 defines the expression "telegraph" in the following words:

''"Telegraph" means any appliance," iD.strument, material or ap- paratus used or capable of use for transmission or reception of signs, signals, writing, images ru;id sounds or intelligence of any nature by wire, visual or other electro-magnetic emissions, Radio waves or Hertzian w,ave.s, galyanic, electric or magnetic means.

Explanation. -- "Radio waves" or "Hertzian w&ves" M~ns electro- magnetic waves or frequencies lmyer thfW: 3,000. giga cycles p~r sec.o~t+ prp~aga~~d in. _sp~~ ~th9~i ~#!iq~_.~i<Je.:· ,_ . tt

1154 SUPREME COURT REPORTS (1995) 1 S.C.R.

A Sub-section (1) of Section 4 which occurs in Part- II entitled "Privileges and Powers of the Government" confers the exclusive privilege of establishing, maintaining and working telegraphs in India upon the Central Government. At the same time, .the first proviso to sub-section empowers the Central Government itself to grant a licence on such condi- · B tions and in consideration of such payments as it thinks fit, to establish, maintain or work a telegraph within any part of India. Section 4 may be set out for ready reference :

"4. (1) Within India the Central Government shall have the ex- clusive privilege of establishing, maintaining and working C telegraphs:

Provided that the Central Government may grant a licence, on such eonditions and in consideration of such payments as it thinks fit, to any person to establish, maintain or work a telegraph within any part of India : D Provided further that the Central Government may, by rules made under this Act and published in the Official Gazette, permit, subject to such restrictions and conditions as it thinks fit. the establishment, maintenance and working --

E (a) of wireless telegraphs on ships within Indian territorial waters and on aircraft within or above India, or India territorial waters, and

(b) of telegraphs other than wireless telegraphs within any part of India. . F (2) The Central Government may, by notification in the Official Gazette, delegate to the telegraph authority all or any of its powers under the first proviso to sub-section (1).

The exercise by the telegraph authority of any power so G delegated shall be subject to such restrictions and conditions the Central Government may, by the notification, think fit to impose".

The arguments before us have proceeded on the footing that the radio broadcasting and telecasting fall within the definition of "telegraph", H which means that according to Section 4, the Central Government has the

MIN. OF INFORMATION AND BROADCASJ'INGv. CRICKET ASSN. OF BENGAL [B.P. JEF.VAN REDDY, J.Jl155

exclusive privilege and right of establishing, maintaining and working the. A radio and television stations and/or other equipment meant for the said purpose. The power to grant licence to a third party for a similar purpose is also vested in the Central Government itself - the monopoly. - holder. The first proviso says that the Central Government may grant such -a licence and if it chooses to grant, it can impose such conditions and B stipulate such payments therefore as it thinks fit. The section is absolute in terms and as rightly pointed out by the petitioners' counsel, it does not provide any guidance in the matter of grant of licence, viz., in which matters the Central Government shall grant the licence and in which matters refuse. The provision must, however, be understood in the context of and having regard to the times in which it was enacted. C In Life Insurance Corporation of India etc. v. Manubhai D. Shah, [1992] 3 S.C.C. 637, Ahmadi, J. (as the learned Chief Justice then was) held that the refusal of Doordarshan to telecast a film "Beyond Genocide" on Bhopal gas disaster (which film was certified by censors and had also received the Golden Lotus Award) on the ground of lacking moderation, restraint fairness and balance is bad. The court noted that while the Doordarshan conceded that the film depicted the events faithfully, it failed to point out in what respects is lacked in moderation etc. Merely because it was critical of government, it was held, Doordarshan cannot refuse to telecast it. It was pointed out pertinently that the refusal to telecast was not based upon the ground that the list of award-winning films was long and that having regard to inter se priorities among them, it was not possible to telecast the film or that the film was not consistent with the accepted norms evolved by Doordarshan. In this connection, the learned Ju,dge, speaking for the Bench, observed : F

''The words "freedom of speech and expression" must, therefore, be broadly construed to include the freedom to circulate o~e's views by words of mouth or in writing or thr-cmgh audio-visual instrumentalities. It, therefore, includes the right to propagate one's G views through the print media or through any other communication channel e.g. the radio and the television. Every citizen of this free country therefore, has the right to air his or her views through the printing and/or the electronic media subject of course to pennissible restrictions imposed under Article 19(2) of the Constitution. The print media, the radio and the tiny screen play the ro!e of public educators, H

' ,. 1156 . SUPREMECOURTREPO~TS. ·---=-·- (1995] 1 S.C.R. '\

A so vital to be growth of a healthy democracy. Freedom to air one's ·, views is the life line of any democr~tic institution and any attempt . to stifle, suffocate or gag this right would sound a death-biell to democracy and_ w~uld help usher in' autocracy or dictatorship. It . . cannot be gainsaid that modern communication mediums advance , public interest by informing the public of the events and develop- B ments that have taken place and thereby educating the voters, a .-· role considered significant for the vibrant functioning of a de~ocracy. Therefore, in any.set-up, more so in' a demo_cratic set-up like ours, dissemination of news and views for popular consumption is a must and any attempt to deny the same must be c/ frowned upon unless it falls within the mischief of Article 19(2) of the Constitution. It follow5 that a citizen for propagation of his or her ideas has a right to P,,blish for circulation his'views in periodicals, · magiizines and journals or through the electTonic media since it is well known that these communication channels are great purveyors .. of news and views and make considerable impact on the minds of D the readers and viewers and are known to mould public opinion on vital issues of national importance. One it is conceded, and it . cannot indeed be disputed, that freedom of speech and expression includes freedom of circulation and propagation of ideas, there ·can be no doubt that the right extends to the citizen being per- mitted to use the media to answer the criticism levelled against the view propagated by him_ Every free citizen has an undoubted right to lay what sentiments he pleases before the publici to forbid this, except to the extent permitted by Article 19(2), would be an inroad on _his freedom. This freedom mus4 however, be exercised with cirr:umspection and care must be taken not to trench on the rights of F other citizens or to jeopardise public interest. It is manifest from Article 19(2) that the right conferred by Article 19(1)(a) is subject to imposition of reasonable restrictions in the interest of, amongst others, public order, decency or morality or in relation to defama- tion or mcitement to an offence. It is, therefore, obVious that 'subject to reasonable restrictions- placed under Article 19(2) a - --~·Citizen has a right to publish, circulate _and disseminate his views · ' ' and any attempt to thwart or deny the same would offend Article ... 19(i)(a).'

H (Emphasis added)

f MIN. OF INFORMATION AND BROADCASTINGv. CRICKET ASSN. OF BENGAL [B.P. JEEVAN REDDY, J.] 1157

Similarly, it was held in Odyssey Communications Pvt. Ltd. v. Lok- A vidayan Saghatana & Ors., [1988] Suppl. 1 S.C.R. 486:

"It can no longer be disputed that the .right of a citizen to exhibit films on the Doordarshan subject to the terms and conditions to be imposed by the Doordarshan is a part of the fundamental right B of freedom of expression guaranteed under Article 19(1)(a) of the Constitution of India which can be curtailed only under cir- cumstances which are set out in clause (2) of Article 19 of the Constitution of India. The right is similar to the right of a citizen " to publish his views through any other media such as news papers, magazines, advertisement hoardings etc. subject to the terms and c conditions of the owners of the media. We hasten to add that what we have observed here does not mean that a citizen has a fun- . damental right to establish a private broadcasting stations, or television centre. On this question, we reserve our opinion. It has to be decided in any appropriate case." D

The Court held that since the Union of India and Doordarshan have failed to produce any material to show that "the exhibition of the serial was prima facie prejudicial to community", the refusal cannot be sustained.

Be that as it may, virtue of Section 4, radio and television have E remained a monopoly of the Central Government. Though in the year 1990, Parliament enacted the 'Prasar Bharati (Broadcasting Corporation of India) Act, 1990, it never came into force because the Central Government did not choose to issue a notification appointing the date (from which the Act shall come into force) as contemplated by Section 1(3) of the said F Act. Be that as it may, Government monopoly over broadcasting media is nothing unusual and it is not solely because of the fact that India was not an independent country, or a democracy, until 1947-50. Even in will- established democracies, the position has been the same, to start with, as would be evident from a brief resume of the broadcasting history in those countries which we may now proceed to er.amine. It would help us under- G stand how the freedom of speech and expression is understood in various democracies with reference to and in the context of right to broadcast and telecast - compendiously referred to hereinafter as broadcasting.

Broadcasting Law in other Countries : H

1158 SUPREME COURT REPORTS [1995) 1 S.C.R.

A The history of broadcasting in United States and other European countries has been basically different, perhaps becauSe of ~istorical factors besides constitutional principles. in the United States, Courts have regarded freedom of speech almost entirely as a liberty against the State, while the Constitutional courts in Europe have looked upon it has a value which may sometimes compel the Government to act to ensure the right. B Constitutions of most of the countries in western Europe, e.g., Germany, Italy and France are of post-World War-II vintage whereas the First Amendment to the United States Constitution is more than 200 years old. These modern European Constitutions cast an obligation upon their government to promote broadcasting freedom and not merely to refrain from interfering with it. The Constitution of Germany expressly refers to the right to broadcast as part of freedom of speech and expression. So far ·as the United King~om is concerned, the development there has to be understood in the context of its peculiar constitutional history coupled with the fact that it has no written constitution. Even so, freedom of thought and expression has been an abiding faith with that nation. It has been a refuge for non-conformists and radical thinkers all over the world - a fact which does not heg any proof. And yet broadcasting in all these countries was a State or a public monopoly to start with., Only much later have these countrie~ started licencing private broadcasting stations. The main catalyst for this development has been Article 10 of the European Convention on E Human Rights which guarantees freedom of expression to all the citizens of the member countries and refers specifically to radio and television. It says: ·

"10(1) Everyone has the right to freedom of expression. This right F shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

G (2) The exercise of these freedoms, since it carries with it duties and responsibilities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security,territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health ·.H or morals, for the protection of the reputation or rights of others,

I MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [B.P. JEEVAN REDDY, J.J 1159 .

for preventing the disclosure of information received in confidence·, A or for maintaining the authority and imp(\rtiality of the Judiciary.," ··•

(Emphasis added)

More about this provision later. B In the United States, of course radio and television have been operated by private undertakings from the very beginning. As pointed out by the United States Supreme Court in Columbia Broadcasting System v. Democratic National Committee, [1973] 412 U.S. 94 - 36 L.Ed. 2d. m, at the advent of the radio, the government had a choice either to opt for government monopoly or government control and that it chose the latter. c The role of the government has been described as one of an "overseer" and that. of the licencee as a "public trustee". The position obtaining in. each country may now be noted briefly.

UN(TED KINGDOM •: D The first licence to operate eight radio stations was granted to British Broadcasting Company (BBC) in 1992. In 1927 British Broadcasting Com- pany was replaced by British Broadcasting Corporation. The Sykes Com- mittee, appointed in 1920s, considered the overall state .control of radio essential in view of its influence on public opinion but rejected operation of the medium by the State. The othet committee appointed in 1920s, viz., Crawford Committee, also recommended that radio should remain a public monopoly in contra-distinction to the United states system of 'free and uncontrolled ttansmission'. It however, recommended that the government company should be reorganised as a commission either under a statute or as a public company limited by guarantee. In 1927, a Royal Charter was granted with a view to ensure the independence of BBC, which charter has been renewed from time to time. It prohibits the BBC from expressing its own opinion on current political and social issues and from receiving revenue from adv.ertisment or commercial sponsorship. The power to give directions is reserved to the government. In 1935, the Corporation was G This part of the judgment dealing with the broadcasting law obtaining in United kingdom and other European countries is drawn largely from the Book "Broadr.asting Law • A Comparative Study" (1993 Edition) by Eric Barcndt, Goodman Professor of Media Law, University College, London and his article "The influence of the German and Italian Constitutional courts on their National Broadcasting Systems• published in 'Public Law, Spring 1991'. H

1160 SUPREME COURT REPORTS {1995] 1 S.C.R.

A liccnccd by the Post-Master General to provide a public television service, which was introduced in the following year. The monopoly of BBC con- tinued till 1954. In that year, the British Parliament enacted the Television Act, 1954 establishing the Independent Television Authority (ITA) to provide television broadcasting services additional to those of the BBC. B The function of the Authority was to enter into contracts with programme companies for the broadcast of commercial programmes. In 1972, IT A was re-designated as Independent Broadcasting Authority (IBA). In 1984, IBA acquired powers in respect of direct broadcasting by satellite.

The Peacock Committee appointed in 1980s to examine the question C whether BBC should be compelled to take advertising, rejected the idea but advocated de-regulation of radio and television. The government ac- cepted the proposal and, accordingly, the Parliament enacted the Broad- casting Act, 1990. Section 1 established the Independent Television Commission (ITC) with effect from January 1, 1991 in the place of IBA D and regulate non-BBC Television services including and the Cable Authority. The ITC is vested with the power to licence channels 3 and 4 and the proposed channel 5 besides cable and satellite services. Section 2 requires that the ITC discharge its functions in the manner it" considers best to ensure a wide range of TV programme services and also to ensure that the programmes are of high quality and cater to a variety of tastes and interests. In 1991, ITV decided to grant 16 new channels 3 licences to private bodies with effect from January 1, 1993. The allocation was to be made by calling for tenders - the highest bidder getting it - subject, of course, to the bidder satisfying the qualifying criteria. The eligibility criteria prescribed guards against granting licences to non-EEC nationals, political bodies, religious bodies and advertising agencies. It also guards against concentration of these licences in the hands of few individuals or bodies. Section 6 and 7 impose strict programme controls on the licencees while Sections 8 and 9 regulate the advertisements. The programme controls include political impartiality, eschewing of excessive violence, due regard for decency and good taste among others. The programmes should not also offend religious feeling of any community. Section 10 provides for govern- ment control over licenced services. Section 11 provides for monitoring by ITC of the programmes broadcast by licenced services. It is obvious that this Act has no application to BBC, which is governed by the Royal Charter, as stated hereinabove. The Act has also set up a Radio Authority to exercise comparable powers over radio services. It is said that this Act H ultimately imposed as many restraints on broadcasters' freedom as there

I MIN.OF INFORMATION ANDBROAIJCASilNGv. CRICKET ASSN. OF BENGAL[B.P. JEEVAN REDDY, J.]1161

were in force earlier. A

FRANCE:

Para 11 of the Declaration of the Rights of Man adopted by the National Assembly in 1789* - affirmed in the preamble to the Constitution B of the Fifth Republic (1958) and treated as binding on all branches of the government - guarantees freedom of dissemination of thought and opinion. This provision - the child of the Franch Revolution - has greatly influenced the development of broadcasting freedom in that country. Initially, licences were granted to private radio stations to function along side the public network but with the out-break ofthe World-War II, the licences of private c broadcasters were suspended and later revoked. From 1945 to 1982, broad- casting remained a State monopoly. The government exercised tight control over the radio. An ordinance issued in 1959 legalised government control. In 1964, public monopoly was re-affirmed by law. In 1974, the State organisation, Office de la radiodiffusion-television Francaise (ORTF) was D divided into seven separate institutions catering to radio and television broadcasts in the country. This was done with a view to introduce competi- tion among the public television companies. The government exercised a significant degree of control over all these units. No private broadcasting was allowed since broadcasting services were regarded as essentially public. The State monopoly in the matter of broadcasting was upheld by E Conseil constitutionnel (Constitutional Court) in 1978. In 1982, however, a significant change took place. The State recognised the right of citizens to have a "free and pluralist broadcasting system". Even so, permission to institute a private broadcasting station was dependent on prior authoriza- tion of the Government. This provision was upheld by the Counseil Con- stitutionnel as compatible with Para 11 of the Declaration of the Rights of F Man. In 1985, the law was amended providing for private broadcasting and televisions stations. In 1986, the government sought to privatise one of the public television channels which immediately provoked controversy. The Conseil Constitutionnel ruled (in 1986) that principle ofpluralism of opinion Para 11 reads : "XI. The unrestrained communication of thoughts and opinions being G one of the most precious rights o' nwn, every citizen may speak, write and publish freely, provided he is responsible for !he abuse of this liberty in cases determined by law." At the same time, Para 4 sets out the limitation implicit in all freedoms comprised in the concept of political liberty. It says : "........ The exercise of the natural rights of every man has no other limits than those which are necessary to secure to every other man the free exercise of the same rights; and these limits are determinable only by the 1aw: . .H

1162 SUPREME COURT REPORTS {1995] 1 S.C.R.

·A was one of constitutional significance, against which the concrete provisions of the proposed Bill niust be assessed. It observed that access to a variety of views was necessary for the effective guarantee of the freedom of speech protected by the Declaration of the Rights.of Man. At the same time, it found nothing wrong with the decision to favour private television but held that it was for the Parliament to determine the appropriate.structure for broad- B casting in the light of freedom of communication and other relevant constitutional values, like public order, rights of other citizens and pluralism of opinion. The law was accordingly amended. Wherever private broadcasting is allowed it is governed by a contract between the applicant and the administrative authority. c GERMANY:

After the occupying authorities withdrew from West Germany in 1949, the pattern that emerged was one of nine regional public broadcast- D ing organisations. They formed into an association, the Ar- heitsgemeinschaft der offentlich-techtlichen Rundfunkanstalten der Bundersrepublik Deutschland (ARD), in 1950 and under its auspices the first public television channel was formed. Article 5 of the Basic Law of 1949 states, " (E) very one shall have the right freely to express and disseminate his opinion by speech, writing, and pictures and freely to inform himself from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcast and films are guaranteed. · There shall be no censorship." In a decision rendered in 1961, the Federal Constitutional Court held inter alia that in view of the shortage of frequen- cies and the heavy cost involved in establishing a TV station, public broadcasting monopoly is justifiable, though not constitutionally man- datory. It held further that broadcasting, whether public or private, should not be dominated by State or by commercial forces and should be open 1 for the transmission of a' wide variety of opinion. (12 BVerfGE 205-196). · There was a long battle before private commercial broadcasting was intro- · duced. Many of the States in West Germany were opposed to private commercial broadcasting. The Constitutiorull Coult TUled in 1981 (The Third Television Case - 57 BVerfGE 295) that priwlte broadcasting was not incon- sistent with Article 5 of the Basic Law but it oblm'ed that unlink the press, private broadcasting should not be left to 1'lllrlr.d /on:es in the interest of ensuring that a wide variety of voices enjoy access to it. It recogni&'Cd that . H the regulation of private broadcasting Can be different in content from the

MIN. OPINPORMATION AND BROADCASl'INGv. CRICKET ASSN. OP BENGAL [B.P. Jl!EVAN Rl!DDY,'J.)1163

regulation applying to public broadcasting. In course of time, private television companies came into existenee but in the beginning they were confmed to cable. In the Fourth Television Case decided in 1986 (73)

- .BVerfGE 118), the court held in the present circumstances, the principal public service functions of broadcastings are the responsibility of the public institutions whereas private broadcasters may be subjected to less onerous programme restrictions. Only after the decision of the Constitutional Court in 1987 were the private companies allocated terrestrial frequencies. It appears that notwithstanding the establishment of private companies, it is the public broadcasting companies which dominate the scene and attract more advertisement revenue. The German constitutional court has exer- cised enormous influence in shaping the contours of broadcasting law. It C has interpreted the broadcasting freedom in a manner wholly different from the United States Supreme Court casting an obligation upon the State to ·act to ensure the right to all citizens.

ITALY: D In Italy too, the broadcasting was under State control, to start with. In 1944, Radio audizioni Italia (RAI) was created having a monopoly broadcasting. It still holds the concession for public radio and broadcast- ing. Article 21(1} of the Italian Constitution, 1947 provides that "Everyone _. has the right to express himself freely verbally, in writing, and by any other means". This provision was relied upon by potential private broadcasters in support of their claim for setting up private commercial stations. In a decision rendered in 1960 (Decision 59/60 (1960} Giuispruenza Con- stituzionale 759) the Constitutional Court of Italy upheld RAl's monQpOly with reference to Article 43 of the Constitution which enables legislation to reserve (or expropriate subject to compensation) for the State, busi- nesses which are concerned with vital public service or are natural monop- olies and which are of pre-eminent public interest. It denied the right of applicants to establish private radio or television stations. It opined that private broadcasting would inevitably be dominated by a few corporations and, there/ore, not in public interest, an aspect which was re-affirmed in a decision in 1974. (Decision 225n4 (1974) Giurisprudenza Constituzionale 1n5). It held that broadcasting provides an essential service in a democratic society and could ligitimately be reserved for a public institution, provided certain conditions were met. In particular, it said that radio and television should be put under parliamentary, and not executive control to ensure their H

1164 SUPREME COURT REPORTS [1995] 1 S.C.R.

A independence and that rules should be drawn up to guarantee the access of significant political and social groups. Accordingly, the Parliament enacted the Legge in April, 1975, which provided for a greater control by a Par- liamentary Commission over the programmes and their content. In 1976, the Constitutional Court ruled (Decision 202/76 (1976) Giurisprudenza Constituzionale 1276) that while at the national level, the monopoly of RAI B is valid, at the local level, it is not, since at the local level there is no danger of private monopolies or oligopolies emerging - a hope belied by sub- sequent developments. This ambiguous decision resulted in establishment of a large number of private radio stations in Italy notwithstanding the re-affirmation of RAl's national monopoly in 1981 by the court. One of the major - rather the largest - private television and radio networks which thus came illto existence is the $7 billion Finivest Company, controlled by Silvio Berlusconi (the Ex-Prime Minister of Italy, who resigned in December, 1994). It owns three major TV networks in Italy. This development prompted the Constitutional Court, in 1988, to call for a prompt and comprehensive regulation of private broadcasting containing adequate anti-trust and other anti-monopolistic provisions to safeguard pluralism. Accordingly, a law was made in 1990 which devised a system for licensing private radio and television stations.

AUSTRIA: E Broadcasting has been under public control in Austria throughout. This monopoly was challenged as inconsistent with Article 10 of the European Convention before the Austrian Constitutional Court which repelled the attack with reference to clause (2) of Article 10. It held that p inasmuch as a law made by the State, viz., Constitutional Broadcasting Law had introduced a Iicencing system within the meaning of the last sentence in Article 10(1) of the Convention and since the said system was intended to secure objectivity and diversity of opinions, no further need be done. It held that the Austrian Broadcasting Corporation with the status of an autonomous public law corporation is a sufficient compliance not G only with the national laws but also with Article 10 of the Convention and that granting licence to every applicant would defeat the objectives of pluralism, diversity of views and range of opinions underlying the said Austrian law. Several individuals and organisations, who were refused television/radio licences, lodged complaints with the European Human H Rights Commission, which referred the matter f0r the opinion of the

MIN. OF INFORMATION AND BROADCASflNGv. CRICKET ASSN. OF BENGAL [B.P. JEEVAN REDDY, J.J 1165

European Human Rights Court (EHRC) (at Starsbourg). The Court held A that the refusal to consider the applications for licence amounted to a violation of Article 10 (Informationsverein Lentia & Ors. v. Austria - 15 Human rights law Journal 31- judgment dated 24th November, 1993.) The reasoning of the Court is to be found in paragraphs 38 and 39 which read thus: B "38. The Court has frequently stressed the fundamental role of freedom of expression in a democratic society, in particular where, through the press, it serves to impart information and ideas of t general interest, which the public is moreover entitled to receive (see, for example, mutatis mutandis, the Observer and Guardian C v. The United Ki.ngdom judgment of 26 November 1991, Series A no. 216, pp. 29-30, $59 - 13 HRU 16 (1992)). Such an undertaking cannot be successfully accomplished unless it is grounded in the principle of pluralism, of which the State is the ultimate guarantor. This observation is especially valid in relation to audio-visual media, whose programmes are often broadcast very widely. D

39. Of all the means of ensuring that these values are respected, a public monopoly is the one which imposes the greatest restrictions on the freedom of expression, namely the total impossibility of broadcasting otherwise than through " national station and, in some cases, to a very limited extent through a local cable station. The far reaching character of such restricti~ms m~ans that they can only be justified where they correspond to a pressing need.

As a result of the technical progress made over the last decades, .. > justification of these restrictions can no longer today be found in consideration relating to the number of frequencies and channels available; the Government accepted this. Secondly, for the pur- poses of the present case they have lost much of their raison d'etre in view of the multiplication of foreign programmes aimed at Austrian audiences and the decision of the Administrative Court G to recognise the lawfulness of their retransmission by cable (see paragraph 21 above). Finally and above all, it cannot be argued that there are no equivalent less restrictive solutions; it is sufficient by way of example to cite the practice of certain countries which either issue licences subject to specified conditions of variable content or make provision for forms of private participation in the H

1166 SUPREME COURT REPORTS (1995) 1 S.C.R.

A activities of the national corporation."

The Court then dealt with the· argument that "Austrian market was too small .to sustain a sufficient number of stations to avoid regrouping an~ the constitution of the private monopolies" and rejected it in the following words:· B "42. The Court is not persuaded by the Government's argument. Their assertions are contradicted by the experience of several European States, of a comparable size of Austria, in which the coexistence of private and public stations, according to rules which vary from country to country and accompanied by measures c preventing the development of private monopolies, shows the fears expressed to be groundless."

The .Court fmally concluded;

"43. In short, like the Commission, the Court considers that the interferences in issue were disproportionate to the aim pursued and were, accordingly, not necessary in a democratic society. There has therefore, been· a violation of Article 10."

In our opinion, the reasoning of EHRC is unacceptable for various reasons which we shall set out at the proper st~e'.

OTHER WESTERN EUROPEAN COUNTRIES:

In Denmark, private broadcasting was permitted by Legislation enacted in 1985. In Portugal, private broadcasting was allowed only in 1939, F by amending the Constitution. In Switzerland too, private broadcasting has been allowed only recently. Private broadcasting is, however, subject to strict programme control.

UNITED STATES OF AMERICA: • G In the United States, there was no law regulating the establishment and working of broadcasting companies till 1927. In that year, Radio Act, 192?_was enacted by Congress creating the Federal Radio Commission with authority to grant three-year licenc;es to operate radio stations on an assigned frequency. In the years 1934, the Congress enacted the Federal H Communications Act. This Act placed the telephone and wireless ~

! ,; MIN.OF INFORMATION AND BROADCASTINGv. CRICKET ASSN. OF BENGAL[B.P• .IEEVAN REDDY, J.)1167

munications under one authority, viz., Federal Communications Commis- A sion (FCC). The Commission had the authority to assign frequency for particular areas, to prescribe the nature of the service to be provided for different types of stations.and to decide licence applications. The only guideline issued to the Commission was that it should exercise its powers keeping in view the "public interest, convenience and necessity". It is under B these guidelines that the FCC evolved the Fairness Doctrine in 1949. Notwithstanding the First Amendment, the United States Supreme Court held that the freedom of speech did not entail a right to broadcast without a licence. It held : "unlike other modes of expression, radio inherently is not available to air Vide N.B.C. v. U.S., 319 US 190 [1943). The Fairness Doctrine was approved by the Supreme Court in red Lion Broadcasting C Company v. F.C.C., 395 US 367 [1969). The Court observed : "Although bro.adcasting is clearly a medium affected by a First Amendment interest, differences in the characterstics of news media justify differences in the First Amendment Standards applied to them....... "'7iere there are substan- tially more individuals who want to broadcast than there are frequencies to D allocate, it is idle to posit an unabridgeable First Amendment right to broad- cast comparable to the right of every individual to speak, write or publish..... those who are licenced stand no better than those to whom licences are refused......... A license permits broadcasting, but the licensee has no con- stitutional right to be the one who holds the license or-to monopolire a radio frequency to the exclusion of his fellows citizens...... The people as a . E whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the Fust Amendment. It is the right of the viewers Q1Jd·listeners, not the right of the broadcdsters which is p0rarnount. It is the right of the public to receive suitable access to social, political esthetic moral and other ideas and experien- F ces which is crucial here......." In 1967-70, public broadcasting was estab- lished on a national basis through the institution of the Corporation for Public Broadcasting (CPB), viz., the Public Broadcasting Service (PBS) for television and National radio service. The CPB is funded by appropriations made by the Congress. In 1978, the Supreme Court affirmed in F.C.C. v. National Citizens Committee for Broadcasting, (436 U.S. ns) that: G

"In making (its) licensing decisions between competing applicants, the Commission has long given "primary significance" to "diver- sification of control of the media of mass communieations." This ~ policy is consistent with the statutory scheme and with the First H

1168 SUPREME COURT REPORTS [1995) 1 S.C.R.

A Amendment goal of achieving "the widest possible dissemination of Information from dive.rse and antagonistic Sources."* Petitioners argue that the regulations ai:e invalid because they seriously restrict the opportunities for expression ·of both broadcasters and newspapers. But as we stated in Red Lion, "to deny a station licence because 'the public interest' requires it 'is not a denial of free B speech'." The regulations are a reasonable means of promoting the public interest in diversified maS& communications; thus they do not violate the First Amendment rights of those who will be denied broadcast licenses pursuant to them."

c It is significant to notice the statement that "to deny a station licence a because 'the public interest' requires it 'is not denial of free speech'" - a holding to which we shall have occasion to advert to later. Yet another relevant observation of Burger, CJ. is to the following effect :

"The Commission (F.C.C.) was justified in concluding that the public D interest in providing access to market place of"ideas and expressions" would scarcely be served by a system so heavily weighted in favour of the financially affluent or those with access to wealth....... "

(Emphasis added)

E In 1970s, however, it was argued that programming restraints were contrary to the First Amendment besides being unproductive and that broadcasting licencees should enjoy the same rights as newspaper editors and owners. In course of time, the Government moved towards deregula- tion of broadcasting and ultimately in 1987 the Fairness doctrine was F repealed by FCC. An attempt by Congress to restore the said rule by an enactment was vetoed by the President. ... Having examined the systems containing in the United States and major west-European countries, Eric Barendt says:

G "These developments illustrate the widely divergent approaches to broadc~tin~ regulation in the United States and (for the most part) in ~~urope. This is partly an aspect of the more sceptical attitude tu government and to administrative regulation which has As far back as 1948, the Court held in US. v. Paramount Picturts, (92 L.Ed. 1261) that H no monopoly can be countenanced in the matter of First Amendment rights. ,.,- ,

1169 MIN. OF INFORMATION A'lf.> llf:OAD<'ASflNG v. CRICKET ASSN. OF BENGAL (B.P. JEEVAN REDDY, l J