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

prevailed in the USA, at any rate in the last twenty years. The First A Amendment has been interpreted as conferring on broadcasters rights, which have not been derived from the comparable pr.ovisions in continental countries. Another explanation is that in. the USA private commercial broadcasting enjoyed for a long time a de facto monopoly, while in Britain, France, Germany and Italy B there was a public monopoly. It is interesting that there has been continuity to US broadcasting law, which (perhaps sadly) is not found in these European jurisdictions. The Federal Communica- tions Act has remained in force since its passage in 1934, though it has been amended on a handful of occasions." c (Eric Barendt: Broadcasting Law - Page-31)

We may now proceed to examine what does "Broadcasting freedom" mean and signify?

BROADCASTING FREEDOM : Meaning and content of: D

There is little doubt that broadcasting freedom is implicit in the freedom of speech and expression. The European Court of Human Rights also bas taken the view that broadcasting like press is covered by Article 10 of the Convention guaranteeing the right to freedom of expression. But E the question is what does broadcasting freedom mean? Broadly speaking, broadcasting freedom can be said to have four facets, (a) freedom of the broadcaster, (b) freedom of the listeners/viewers to a variety of view and plurality of opinion, (c) right of the citizens and groups of citizens to have access to the broadcasting media, and ( d) the right to establish private radio!fV stations. We shall examine them under separate heads. F (a) FREEDOM OF THE BROADCASTER :

The first facet of the broadcasting freedom is freedom from State or Government contro~ in particular from the censorship by the Government. AS the Peacock Committee put it, pre-publication censorship has no ;)ace G in a free society. Pre-publication censorship is prohibited in Germany by Article 5 of the Basic Law. This principle applies in equal measure both to public and private broadcasting. It is, however, necessary to clarify here that public broadcasting is not to be equated with State broadcasting. Both are distinct. Broadcastir..g freedom in the case of public broadcasting means . H

1170 SUPREME COURT REPORTS [1995] 1 S.C.R.

A the composition of these bodies in a maner so as to genuineJy guarantee their independence. In Germany, the ConstitutionaJ Court has ruJed that freedom from State controJ requires the legislature to frame some basic rules to ensure that Government .is unable to exercise any influence over the selection, conten or scheduling of programmes. Laws providing to the contrary were held bad. Indeed, the court also enunciated certain B guidelines for the composition and selection of the independent broadcast- ing authorities on the ground that such a course is necessary to ensure freedom from Government control. It should be noted that an unfettered freedom for licensees to select which programmes appear on their schedule to the complete disregard of the interests of.public appears more like a · C property right than an attribute of freedom of speech. It is for this reason that the German constitutional court opined in 1981 (57 BVerfGE 295) and in 1987 (73 BVerefGE 118) that television and radio is an instrument of freedom serving the more fundamental freedom of speech in the interest of both broadcasters and the public. The court opined that broadcasting freedom is to be protected insofar as it's exercise promotes the goals of free speech, i.e., an infonned democracy and lively discussion of a variety of views. The freedom of broadcaster cannot be understood as merely an immunity from government intervention but must be understood as a freedom to safeguard free speech right of aJJ the people without being dominated either by the State or any co1ilmercial group. This is also the view taken by the Italian and French courts.

(b) USTENERS/VIEWERS RIGHT:

Broadcasting freedom involves and includes the right of the viewers p and listeners who retain their interest in free speech. It is on this basis that the European courts have taken the view that restraints on freedom of broadcasters are justifiable on the very ground on free speech. It has been held that freedom of expression includes the right to receive information . and ideas as well as freedom to impart them. "The free speech interests of viewers and listeners in exposure to a wide variety of materiaJ can best be safeguarded by the imposition of programme standards, limiting the · freedom of radio and television companies. What is important according to this perspective is that the broadcasting institutions are free to discharge their responsibilities of providing the public with a balanced range of programmes and a variety of views. These free speech goals require positive legislative provision to prevent the domination of the broadcasting

MIN. Of INFORMATION AND BROADCAS11NG v. CRICKET ASSN. OF BENGAL (B.P. JEEVAN REDDY, J.) 1171.

authorities by the government or by private corporations and advertisers, . A and perhaps for securing impartiality.. :.... ~ .. ".

The Fairness .Doctrine evolve by FCC and approyed by the United . States Supreme Court in Red Lion protected the interest of persons by providing a right of reply to personal attacks. But difficulties have arisen in the matter of enforcing the listeners'/viewers' rights through courts. B (c) ACCESS TO BROADCASTING:

The third facet of broadcasting freedom is the freedom of individuals and groups of individuals to have access to broadcasting media to express C their views. The first argument in support of this theory is that public is entitled to hear range of opinions held by different groups so that it can make sensible choices on political and social issues. In particular, these .... views should be exposed on television, the most important contemporary medium. It is indeed the interest of audience that justified the imposition of impartiality rules and positive programme standards upon the broad- D casters. The theoritical foundation for the claim for access to broadcasting is that freedom of speech means the freedom to communicate effectively to a mass audience which means through mass media. This is also the view taken by our court as pointed out supra.

An important decision on this aspect U: that of the United States E Supreme Court in Columbia Broadcasting System v. Democratic National Committee, 412 US 94 [1973). The CBS denied to Democrats and a group campaigning for peace in Vietnam any advertising time to comment upon contemporary political issues. Its refusal was upheld by the FCC, but the District of Columbia Circuit Court of Appeals ruled that an absolute ban F on short pre-paid editorial advertisements infringed the First Amendment and constituted impermissible discrimination. The Supreme Court, how- ever, allowed the plea of CBS holding that recognition of a right of access of citizens and groups would be inconsistent with the broadcasters' freedom. They observed that if such right were to be recognised, wealthy individuals and pressure groups would have greater opportunities to pur- G chase advertising time. It rejected the "view that every potential speakers is 'the best judge' of what the listening public ought to hear" (Burger, CJ.) Some Judges expressed the opinion that the broadcaster enjoyed the same First Amendment rights as the newspapers whereas the minority represented by Brennan and Marshall, JJ. was of the view that freedom of groups and H

1172 SUPREME COURT REPORTS (1995) 1 S.C.R.

A individuals to effective expression justified recognition of some access rights to radio and television.

It appears. that this aspect has been debated more intensively in Italy. The Italian constitutional court held that the monopoly of RAJ can be justified only on certain conditions, one of them being that access must be . B allowed so far as possible to the political, religious and social groups, representing various strands of opinion in society. It opined that statutory provision for access was required by Article 21 of the Constitution guaran- teeing freedom of expression. The Italian courts viewed access as a goal or a policy rather than a matter of fundamental right while at the same time C protecting the individual's right of reply. On this aspect, Barendt says: There are also practical objections to access rights. It may be very difficult to decide, for example. which group are to be given access, and when and how often such programmes are shown. There is a danger some groups will be unduly privileged.... " ... D (d) THE RIGHTS TO ESTABLISH PRIVATE BROADCASTING STATIONS:

The French Broadcasting Laws of 1982 and 1989 limit the right of citizens to establish private broadcasting stations in the light of the neces- E sity to respect individual rights, to safeguard pluralism of opinion and to protect public interests such as national security and public order. No • private radio or television channel or station can be established without prior authorisation from the regulatory body, Conseil superieur de l'audiovisuel. In Britain, the ITC and the Radio Authority must grant the necessary licence for establishing a private television or radio station. In F none of the European counttj.es is there an unregulated right to establish private radio/television station. It is governed by law. Even in United States, it requires a licence from FCC.

Let us examine the position obtaining in Italy and Germany where constitutional provisions corresponding to Article 19(1)(a) - indeed more explicit in the case of Germany - obtain. Notwithstanding Article 21, referred to hereinbefore, the Italian Constitutional Court continues to hold that public monopoly of broadcasting is justified, at/east at national level till adequate anti-trust laws are enacted to prevent the development of private media oligopolies. in fact, this principle has been applied in the case of local broadcasting and private broadcasting allowed at local level. The

MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [B.P. JEEVAN REDDY, J.J 1173

Italian Constitutional Court is of the view that Article 21 of the Italian A Constitution does no doubt confer right to speak freely but this right is to be exercised by "using means already at one's disposal, not a right to use public property,. such as the airwaves". The analogy with the right to establish private schools was held to be a weak one and rejected by the Constitu- tional Court. More particularly, it is of the view that it is impossible to justify B recognition of a right which only a handful of individuals and media com- panies can enjoy in practice.

In Germany too, the Constitutional Court has not recognised a right in the citizens to establish private teleVision/radio stations at their choice. The question was left open in what is called the Third Television case. This C question has, however, lost its significance in view of the laws made in 1980s permitting private broadcasting. What is relevant is that even after the enactm~nt of the said laws, the Constitutional Court held in Sixth Television case (decided in 1991) that establishment of private broadcasting stations is not a matter of right but a matter for the State (legislature) to decide. If the D State legislation docs permit such private broadcasting, it has been held at the same time, it cannot impose onerous programme and advertising restrictions upon them so as to imperil their existence.

So far as the United States is concerned, where liccncing of private E broadcasting stations has been in vogue since the very beginning, the Supreme Court said in C.B.S. v. Democratic Committee, 36 L.Ed. 2d. 772 [1973) that "(B)ecause the broadcast media utilize a valuable and limited public resource, there is also present an unusual order of First Amendment values". It then affirmed the holding in Red Lion that "no one has a First Amendment right to a license or to monopolize a radio frequency; to deny F a station license because 'the public interest' requires it 'is not a denial a denial of free speech"'•. The Court also affirmed that "it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write or publish". It is relevant to mention here It is true that reference to "the public Interest• in the above extract must be understood G in the light of the guidance provided to P.C.C., which inter alia directs the P.C.C. to perform its functions consistent with public interest, the fact yet remains that even the guidance so provided was understood to be within the ambit of First Amendment and consistent with the free speech right guaranteed by it. It was held in National Broad- casting Company v. United States, (1943) 319 U.S. 190 that the guidance provided to F.CC. to exercise its powers •as pub!ic convenience, interest or necessity requires" did not violate the first Amendment. H

....1174 SUPREME COURT REPORTS (19'J5) 1 S.C.R. I-

A that the distinction made between the Press and the broadcasting meilia t-

Nis-a-vis the Firs.t Amendment has been justified by the American jwist _,_ Bollinger as based on First Amendment values and not on notions of expediency. He says that in "permitting different treatment of the two institutions·..... (the) Court has imposed a compromise - a compromise, however, not based on notions of expediency, but rather on a reasoned and B principled accommodation of competing First Amendment Values". (75 Michigan law Review 1, 26-36 (1976) quoted in "C()nstitutional Law" by Store, Seidman and others (Second Edition) at 1427-28).

It is true that With the advances in technology the argument of few c or limited number of frequencies has become weak. Now, it is claimed that an unlimited number of frequencies are available. We shall assume that it is so. Yet the fact remains that airwaves are public property that they are to be utilised to the greatest public good; that they cannot be allowed to be monopolised or hijacked by a few privileged persons or groups; that granting license to everyone who asks for it would reduce the right to D nothing and that such a licensing system would end up in creation of oligopolies at the experience in Italy has shown - where the limited experi- ment of permitting private broadcasting at the local level though not at the national level, has resulted in creation of giant media empires and media magnates, a development not conducive to free speech right of the citizens. E It would be instructive to.note the lament of the United States Supreme Court regarding the deleterious effect the emergence of media empires had on the freedom of Press in that country. In Miami Herald Publishing Company v. Tomillo, [1974)418 U.S. 241, the Court said:.

"Access· advocates submit ·that ..... the press of today is in reality F very different from that known in the early years of our national ..: existence .....

The elimination of competing newspapers in most of our large cities· and the concentration of control of media that results from the only newspaper's being owned by the same interests which own G a television station and a radio station, are important components of this trend towards concentration of control of outlets to inform the public.

The result of these vast changes has been to place in few hands th~ power to inform the American people and shape public

MIN. OF INFORMATION AND BROA.DCASrlNG v. CRICKET ASSN. OF BENGAL [B.P. JEEVAN REDDY, J.] 1175

opinion. Much of the editorial opinion and commentary that a A printed is that of syndicated columnists distributed nationwide and, as a result, we are told, on national and world issues there tends ., to be a homogeneity of editorial opinion, conunentary, and inter- pretive analysis. The abuses of bias and manipulative reportage are, likewise, said to be the result of the vast accumulations of unreviewable power in the modern media empires. In effect, it is claimed, the public has lost any ability to respond or to contribute in a meaningful way to the debate on issues ........ .

The obvious solution, which was available to dissidents at an earlier time when entry into publishing was relatively inexpen-;ive, today would be to have additional newspapers. But the same economic factors which have caused the disappearance of vast numbers of metropolitan newspapers, have made entry into the market place of ideas served by the print media almost impossible. It is urged that the claim of newspapers to be "surrogates for the public" carries with it a concomitant fiduciary obligation to account for that stewardship. From this premise it is reasoned that the only effective way to insure fairness and ·accuracy and to provide for some accountability is for government to take affirmative action. The First Amendment interest of the public in being informed is said to be in peril because the "marketplace of ideas" is today a monopoly controlled by the owners of the market...... " (

(Emphasis added)

Of course, there is another side to this picture: this media giants in United p States are so powerful that Government cannot always manipulate them - as was proved in the Pentagon Papers' case New York Times v. United States. [1971] 403 U.S. 713] and in the case of President's Claim of Privilege United States v. Nixon, (1974] 418 U.S. 683. These considerations - all of them emphasised by Constitutional courts of United States and major west- G European countries, - furnish valid grounds against reading into Article 19(1)(a) a right to establish private broadcasting stations, whether per- manent or temporary, stationary or mobile. Same holding holds good for earth stations and other telecasting equipment which the petitioners want to bring in through their chosen agencies. As explained hereinbefore, there is no distinction in principle between a regular TV station and an earth H

1176 SUPREME COURT REPORTS [1995] 1 s.c.R.

A station or other telecasting facility. More about this aspect later. Having notice the judicial wisdom of the Constitutional Courts in leading democ.racies, we may turn to the issue~ arising herein.

The Nature of grounds specified in Article 19(2) of the Constitution. B A look at the grounds in clause (2) of Ar~icle 19, in the interests of which a law can be made placing reasonable restrictions upon the freedom of speech and expression goes to show that they are all conceived in the national interest as well as in the interest of society. The first set of grounds, viz., the sovereignty and integrity of India, the security of the State, friendly relations with foreign States and public order are grounds referable to national interest whereas the second set of ground, viz., decency, morality, contempt of courts defamation and incitement to offence are conceived in the interest of society. The inter connection and the inter-dependence of freedom of speech and the stability of society is undeniable. They indeed contribute to and promote each other. Freedom of speech and expression in a democracy ensures that the change desired by the people, whether in politica~ economic or social sphere, is brought about peacefully and through law. That change desired by the people can be brought about in "· an orderly, legal and peaceful manner is by itself an assurance of stability and an insurance against violent upheavals which are the hall-mark of societies ruled by dictatorships, which do not permit this freedom. The stability of, say, the British nation and the periodic convulsions witnessed in the dictatorships around the world is ample proof of this truism. The converse is equally true. The more stable the society is, the more scope it provides for exercise of right of free speech and expression. A· society which feels secure can and does permit a greater latitude than a society whose stability is in constant peril. As observed by Lord Sumner in Bow- man v. Secular Society Ltd., [1917] A.C. 406:

"The words as well as the acts, which tend to endanger society differ from time to time in proportion as society is stable or insecure in fact, or is believed by its reasonable members to be open to assault. In the present day meetings or processions are held lawful which a hundred and fifty years ago would have been deemed seditious, and this is not because the law is weaker or has changed, but because, the times having changed, society is stronger than before ...... After al~ the question whether a given opinion is

MIN. OF INFORMATION AND BROADCAS!lNG v. CRICKET ASSN. OF BENGAL [B.P. JEEVAN REDDY. J.j 1177

a danger to society is a question of the times and is a question of fact. I desire to say nothing that would limit the right of society to protect itself by process of iaw ff:;'Jll the dangers of the movement, whatev.er that right may be, but only to say that, experience having proved dangers once thought real to be now negligible, and dangers once very possibly imminent to have now passed away, there is nothing in the general rules as to blasphemy and ir- B religion ...... which prevents us from varying their application to the particular circumstances of our time in accordance with that ex- perience."

It is for this reason that our. founding fathers while guaranteeing the. C freedom of speech and expression provided simultaneously that the said right cannot be so exercised as to endanger the interest of the nation or the interest of the society, as the case may be. This is not merely in the interest of nation and society but equally in the interest of the freedom of speech and expression itself, the reason being the mutual relevance and inter-dependence aforesaid.

Reference may also be made in this connection to the decision of the United States Supreme C.burt in F.C.C. v. National Citizens Committee for Broadcasting, (1978) 436 U.S. 775, referred to hereinbefore, where it has been held that "to deny a station licence because the public interest requires it is not a denial of free speech". It is significant that this was so said with reference to First Amendment to the United States Constitution which guarantees the freedom of speech and e~ression in absolute terms. The reason is obvious. The right cannot rise above the national interest and the interest of society which is but another name for the interest of general public. It is true that Article 19(2) does not use the words "national interest", "interest of soci.ety" or "public interest" but as pointed hereinabove, the several grounds mentioned in clause {2) are ultimately referable to the interests of the nation and of the society. As observed by White, l., speaking for the United States Supreme Court, in Red Lion: G "It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevai~ rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee. Associated Press v. United . State, 326 US 1, 20, 89 L. Ed. 2013, 2030, 65 S Ct 1416 (1945); New _H

1178 SUPREME COURT REPORTS [1995] 1 S.C.R.

A York Times Co. v. Sullivan, 376 US 254, 270, 11 L Ed 2d 686, 700, 84 S Ct 710, 95 ALR2d 1412( 1964); Abrams v. United States, 250 US 616, 630, 63 L Ed. 1173, 1180, 40 S Ct 17 (1919) (Holmes, J., Dissenting). "(S)peech concerning public affairs is more than self- expression; it is the essence of self- government". Garrison v. Louisiana, 379 US 64, 74- 75, 13 L Ed 2d 125, 133, 85 S Ct 209 B (1964). See Brennan, _The Supreme Court and the f>1eiklejohn interpretation of the First Amendment, 79 Harv L Rev 1 (1965). It is the right of the public to receive suitable access t«;i social, political,, esthetic, moral, and other ideas and experiences which is crucial here." c (Emphasis added)

We may have to bear this in mind while delineating the parameters of this freedom. It would also be appropriate to keep in mind the obser- vations in Columbia Broadcasting System v. Democratic National Commit- D tee, 36 L. Ed. 2d 772). Burger, C.J. quoted the words of Prof. Chafee to the following effect :

"Once we get away from the bare words of the First Amend- ment, we must construe it as part of a Constitution which creates E a Government for the purpose of performing several very impor- tant tasks. The First Amendment should be interpreted so as not to cripple the regular work of the government."

We must also bear in mind that- the obligation of the State to ensure this right to all the citizens of the country (emphasis hereinbefore) creates F an obligation upon it to ensure that the broadcasting media is not monop- olised, dominated or hijacked by privileged, rich and powerful interests. Such monopolisation or domination cannot but be prejudicial to the freedom of speech and expression of the citizens in general - an aspect repeatedly stressed by the Supreme Court of United States and the Con- G stitutional Courts of Germany and Italy. The importance and significance of television in the modem words needs no emphasis. Most people obtain the bulk of their information on matters of ·contemporary interest from the broadcasting medium. The + television is unique in the way in which it intrudes into our homes. The H combination of picture and voice makes it an irresistably attractive medium

·MIN. OF INFORMATION AND BROADCASI1NGv. CRICKET ASSN. OF BENGAL (B.P. JEEVAN REDDY, J.) 1179

of presentation. Call it idiot box or by any other pejorative name. It has a A tremendous appeal and influence over millions of people. Many of them are glued to it for hours on end each day. Television is shaping the food habits, cultural values, social mores and what not of the society in a manner / no other medium has done so far. Younger generation is particularly- addicted to it. It is a powerful instrument which can be used for greater good as also for doing immense harm to the society. It depends upon how it is used. With the advance of technology, the number of channels available has grown enormously. National borders have become meaningless. The reach of some of the major networks is international; they are not confined to one country or one region. It is no longer possible for any government to control or manipulate the news, views and information available to its people. In a manner of speaking, the technological revolution is forcing inter-nationalism upon the word. No nation can remain a fortress or an island in itself any longer. Without a doubt, this technological revolution is presenting new issues, complex in nature-in the words of Burger, C.J., "complex problems with many hard questions and few easy answers". D Broadcasting media by its very nature is different from Press. Airwaves are public property. The fact that a large number of frequencies/channels are available does not make them anytheless public property. It is the obliga- tion of the State under our constitutional system to ensure that they are used for public good. E Now, what does this public g~od niean and signify in the context of the broadcasting medium? In a democracy, people govern themselves and they cannot govern themselves properly unless· they are aware - aware of social, political, economic and other issues confronting them. To ena~e them to make a proper judgment on those issues, they must have the p benefit of a large of opinions on those issues. Right to receive and impart information is implicit in free speech. This plurality of opinions, view and ideas a indispensable for enabling them to make an informed judgment on those issues to know what is their true interest, to make t~em responsible citizens, to safeguard their rights as also the interests of society and State. All the Constitutional courts of leading democracies, reference to which G has been made here to before, have recognised and reiterated this aspect. -+ This is also the view of the European Court of Human Rights. In Castells \'.Spain, (14 EHRR 445), quoted in 1994 Public Law at 524 - the court held that free political debate is "at the very core of.the concept of a democratic society''. H

1180 SUPREME COURT REPORTS [1995) 1 S.C.R.

A From the standpoint of Article 19(1)(a), what is paramount is the right of the listeners and ·viewers and not the right of the broadcaster- whether the broadcaster is the State, public corporation or a private individual or body. A monopoly over broadcasting, whether by government or by anybody else, is inconsistent with the free speecli right of the citizens. B State control really means governmental control, which in turn means, control of the political party or parties in power for the time being. Such control is bound ·to colour the views, information and opinions conveyed by the media. The free speech right of the citizens is better served in keeping the broadcasting media under the control of public. Control by public means control by an independent public corporation or corpora- C tions, as the case may be, formed under a statute. As held by the Constitu- tional Court of Italy, broadcasting provides an essential service in a democratic society and could legitimately be reserved for a public institu- . tion, provided certain conditions are met. The corporation (s) must be constituted and composed in such a manner as to ensure its independence D from government and its impartiality on public issues. When presenting or discussing a public issue, it must ·be ensured that all aspects of it are presented in a balanced manner, without appearing to espouse any one point of view. This will also enhance the credibility of the media to a very large extent; a controlled media cannot command that level of credibility. E For the purpose of ensuring the free speech rights of the citizens guaran- teed by Article 19(1)(a), it is not necessary to have private broadcasting stations, as held by the Constitutional Courts of France and Italy. Allowing "private broadcasting would be to open the door for powerful economic, commercial and political interests, which may not prove beneficial to free speech right of the citizens - and certainly so, if strict programme controls and other controls are not prescribed. The analogy with press is wholly inapt. Above all, airwaves constitute public property. While, the freedom guaranteed by Article 19(1)(a) does include the right to receive and impart information, no one can claim the fundamental right to do so by using or employing public property. Only where the statute permits him to use the public property, then only - and subject to such conditions and restrictions as the law may impose - he can use the public property, viz., airwaves. In other words, Article 19(1)(a) does not enable a citizen to impart his information, views and opinions by using the airwaves. He can do so + without using the airwaves. It need not be emphasised that while broad- H casting cannot be effected without using airwaves, receiving the broadcast

MIN. 01' INFORMATION AND BROADCASTINGv. CRICKET ASSN. 01' BENGAL [B.P. JEEVAN REDDY, J. J1181

does not involve any such use. Airwaves, being public property must be utilised to advance public good. Public good lies. in ensuring plurality of .... opinions, viewed and ideas and that would scarcely by served by private .. broadcasters, who would be and who are bound to be actuated by. profit motive. There is a far grater likelihqod of these private broadcasters indulging in mis-information dis-information and manipulation of news and views than the government - controlled media, which is at least subject to public and parliamentary scrutiny. The experience in Italy, where the Constitutional Court allowed private broadcasting at the local level while denying it at the national level should serve as a lesson; this limited opening has given rise to giant media oligopolies as mentioned supra. Even with the best of programme controls it may prove ~unter-productive at the present c juncture of our development; the implementation machinery in our country leaves much to be desired which is shown by the ineffectiveness of the several enactments made with the best of the intentions and with most laudable provision; this is a reality which cannot be ignored. It is true that even if private broadcasting is not allowed from Indian soil, such stations may spring up on the periphery of or outside our territory, catering exclusively to the Indian public. Indeed, some like stations have already come into existence. The space, it is said, is saturated with communication satellites and that they are providing and are able to provide any number of channels and frequencies. More technological developments must be in the offing. But that cannot be a ground for enlarging the scope of Article 19(1)(a). It may be a factor in favour of allowing private broadcasting - or it may not be. It may also be that the Parliament decides to increase the number of channels under the.Doordarshan, diversifying them into various fields, commercial, educational, sports and so on. Or the Parliament may decide to permit private broadcasting, but if it does so permit, it should not only keep in mind the experience of the countries where such a course has been permitted but also the conditions in this country and the compul- sions of technological developments and the realities of situation resulting from technological developments. We have no doubt in our mind that it will so bear in mind the above factors and all other relevant circumstances. G We make it clear, we are not concerned with matters of policy but with the content of Article 19(1)(a) and we say that while public broadcasting is implicit in it, private broadcasting is not. Matters of policy are for the -+ Parliament to consider and not for courts. On account of historical factors, radio and television have remained in the hands of the State exclusively. H

1182 SUPREME COURT REPORTS [1995) 1 S.C.R.

A Both the networks have been built up over the years with public fuilds . .They represent the wealth and property of the nation. It may even be said that they represent the material resources of the community within the meaning of Article 39(b). They may also be said to be 'facilities' within the . meaning of Article 38. They must be employed consistent with the above articles and consistent with the constitutional policy as adumbrated in the preamble to the Constitution and Parts III and IV. We must reiterate that the press whose freedom is implicit in Article 19(1)(a) stands on a different footing. The petitioners 1- or the potential applicants for private broadcast- ing licenses - cannot invoke the analogy of the press. To repeat, airwaves are public property and better remain in public hands in the interest of the very freedom of speech and expression of the citizens of this country.

It would be appropriate at this stage to deal with the reasoning of the European· Court of Human 1Rights in the case of lnformationsverein Lentia. The first thing to be noticed in this behalf is the language of Article D 10(1) of the European convention, set out hereinbefore. Clause (1) of Article 10 not only says that everyone has the right to freedom of expres- sion but also says that the said right s'1.all include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless offrontiers. The clause then adds that Article 10 shall not, however, prevent the State from requiring the licensing of E broadcasting, television or cinema enterprises. Cl.ause (2) of course is · almost in pari materia with clause (2) of Article 19 of our Constitution. What is, however, significant is that Article 10(1) expressly conferred the right "to receive and impart information and ideas without interference by public authority''. The only power given to public authority, which in the F. context means the State/Government, is to provide the requirement of license and nothing more. It is this feature of clause (1) which has evidently iilfluenced the decision of the European court. The decision cannot, there- fore, be read as laying down that the right of free expression by itself · implies and includes the right to establish private broadcasting stations. It is necessary to emphasise another aspect. While I agree with the statement in Para 38 to the effect that freedom of expression is fundamental to a democratic society and that the said "cannot be successfully accomplished unless it is grounded in the principle of pluralism, of which the State is the ultimate guarantor", I find it difficult to agree that such pluralism cannot ; . be ensured by a public/ statutory corporation of the nature already in existence in Austria and that it is necessary to provide for private broad~

MIN. OF INFORMATION AND BROAOCASI1NGv. CRICKET ASSN. OF BENGAL [B.P. JEEVAN REDDY, J.J 1183

casting to ensure pluralism, as held in Para 39. The fact that as a result of technological advances, the argument of limited number of frequencies is no longer available, cannot be a ground for reading the right to private broadcasting into freedom of expression. The decision as such is coloured by the particular language of clause (1) of Article 10, as stated above. I must also say that the last observation in Para 39 viz., that there can be other less restrictive solutions is also not a ground which we can give effect to under the legal system governing us. The question in such cases always _ is whether the particular restriction placed is reasonable and valid and not whether other less restrictive provisions are possible. I may also mentione that the arguments which weighed with other constitutional courts, viz., that airways represent public property and that they cannot be .allowed to be dominated or monopolised by powerful commercial, economic and politi- cal interests does not appear to have been argued or considered by the European Court. As has been emphasised by other constitutional courts, the very free speech interest of the citizens requires that the broadcasting media is not dominated or controlled by such powerful interests. D There is yet another aspect of the petitioners' claim which requires to be explained. According to their own case, they have sold the telecasting rights with respect to their matches to a foreign agency with the under- standing that such foreign agency shall bring in its o~ equipment and personnel and telecast the mathes from the Indian territory. Once they have sold their rights, the foreign agency is not thejr agent but an inde- pendent party. It is a principal by itself. The foreign agency cannot claim or enforce the right guaranteed by Article 19(1)(a). Petitioners cannot also claim because they have already sold the rights. In other words, the right to telecast is no longer with them but· with the foreign firm which has purchased the telecasting rights. For this reason too, the petitioners' claim must be held to be unacceptable.

Having held that Article 19(1)(a) does not encompass the right to establish, maintain or run broadcasting stations or broadcasting facilities, we feel it necessary to clarify the true purport of the said freedom in the context of broadcasting media. This is necessary to ensure that I am not misunderstood or misinterpreted. Indeed, what I propose to say hereafter flows logically from what I have said heretofore.

It has been held by this Court in Life Insurance Corporation v. H

1184 SUPREME COURT REPORTS [1995] 1 S.C.R.

A Manubhai Shah the freedom of speech and expression guaranteed to the citizens of this country "includes the right to propagate one's views through 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 ai~ his or her views through the printing and/or the electronic media subject of course to permissible restrictions imposed under Article 19(2) B of the Constitution". It has also been held in the said decision that "the print media, the radio and the tiny screen play the role of public educators, sd vital to the growth of a healthy democracy. Freedom to air one's views is the lifeline of any democratic institution and any attempt to stifle, suffocate or gag this right would sound a death-knell to democracy and would help usher in autocracy or dictatorship ...... It follows that a citizen for propagation of his or her ideas has a right to publish for circulation his view in periodicals, magazines and journals or t_hrough the electronic media since it is well known that these communication channels are great pur- veyors of news and views and make considerable impact on the minds of the readers and viewers and are known to mould public opinion on vital issues of national importance." To the same effect is the holding in Odyssey Communications referred to supra. Once this is so, it follows that no monopoly of this media can be conceived for the simple reason that Article 19(2) does not permit State monopoly unlike clause (6) of Article 19 vis-a-vis the right guaranteed by Article 19(1)(g). E All the Constitutional Courts whose opinions have been referred to hereinbefore have taken the uniform view that in the interest of ensuring plurality of opinions, views, ideas and ideologies, the broadcasting media cannot be allowed to be under the monopoly of one - be it the monopoly p of Government or an individual, body or organisation. Government control in effect means the control. of the political party or parties in powers for· the time being. Such control is bound to colour and in same cases, may even distort the news, views opinions expressed through the media. It is not conducive to free expression of contending viewpoints and opinions which is essential for the growth of a healthy democracy. I have said enough hereinbefore in support of the above propositions and we do not think it necessary to repeat the same over again here. I have also mentioned hereinbefore that for ensuring plurality of views, opinions and also to ensure a fair and balanced presentatioD: of news and public issues, the broadcast media should be placed under the control of public, i.e:, in the hands of statutory corporation or corporations, as the case may be. This ·is

MIN. OF INFORMATION AND BROADCASTINGv. CRICKET ASSN. OF BENGAL (B.P. JEEVAN REDDY, J.J 1185

the implicit comm~nd--of f.rticle 19(1)(a). I have also stressed the impor- A tance of constitiiting and composing these corporations in such a manner that they ensure impartiality in political, economic and social and other matters touching the public and to ensure plurality of views, opinions and ideas. This again is the implicit command of Article 19(1)(a). This medium should promote the public interest by providing information, knowledge and entertainment of good quality in a balanced way. Radio and Television B should serve the role of public educators as well. Indeed, more than one corporation for each media can be provided with a view to provide com- petition among them (as has been done in France) or for convenience, as the case may be. c Now, coming to the Indian Telegraph Act, 1885, a look at its scheme and provisions would disclose that it was meant for a different purpose altogether. When it was enacted, there was neither Radio* nor, of course, television, though it may be that radio or television fall within the definition of "telegraph" in Section 3(1). Except Section 4 and the definition of the D expression "telegraph", no other provision of the Act appears to be relevant to broadcasting media since the validity of Section 4(1) has not been specifically challenged before us, we decline to express any opinion there- on. The situation is undoubtedly unsatisfactory. This is the result of the legislation in this country not keeping pace with the technological develop- ments. While all the democracies in the world have enacted laws specifi- E cally governing the broadcasting media, this country has lagged behind, rooted in the Telegraph Act of 1885 which is wholly inadequate and unsuited to an important media like radio and television, i.e., broadcasting media. It is absolutely essential, in the interest of public, in the interests of the freedom of speech and expression guaranteed by Article 19(1)(a) and with a view to avoid confusion, uncertainty and consequent litigation that Parliament steps in soon to fill the void by enacting a law or laws, as the case may be, governing the broadcasting mooia, i.e., both radio and television media. The question whether to permit private broadcasting or not is a matter of policy for the Parliament to decide. If it decides to permit it, .it is for the Parliament to decide, subject to what .conditions and restrictions should it be permitted. (This aspect was been dealt with supra). The fact remains that private broadcasting, even if allowed, should not be It was only in 1895 that G.Marconi succeeded in transmitting wireless signals between sending and receiving points without the use of connecting wires over a distance of two kilometers. . H

1186 SUPREME COURT REPORTS [1995] 1 S.C.R.

A left to market forces, in the interest of ensuring that a wide variety of voices enjoy access to it.

SUMMARY

B In this summary too, the expression "broadcasting media" means the electronic media now represented and operated by AIR and Doordarshan and not any other services. ' . I

l(a). Game of cricket, like any other sports event, provides entertain- ment. Providing entertainment is implied in fr.eedom of speech' and eXJ)re's- C sion guaranteed by Article 19(1)(a) of the Constitution subject to this rider that where speech and conduct are joined in'a siilgle course·of action, the free speech values must be balanced against competing societal interests. The petitioners (CAB and BCCI) therefore have a right to· organise· cricket matches in India, whether with or without the participation , of foreign D teams. But what they are now seeking is a license to telecast their matches through an agency of their choice - a foreign agency in both the cases - and through telecasting equipment brought in by such foreign agency from outside the country. In the case of Hero Cup Matches organised by CAB, they wanted uplinking facility to INTELSAT through the government agency VSNL also. In the case of later international matches organised by E BCCI they did not ask for this facility for the reason that their foreign agent has arranged direct uplinking with the Russian satellite Gorizon. In both cases, they wanted the permission to import the telecasting equipment along with the personnel to operate it by moving it to places all over the country wherever the matches were to be played. They claimed this license; or permission, as it may be called, as a matter of right said to be flowing from Article 19(1)(a) of the Constitution. They say that the authorities are "' (

bound to grant such license/permission, without any conditions, all that they are entitled to do, it is submitted, is to collect technical fees wherever their services are availed, like the services of VSNL in the case of Hero Cup Matches. This plea is in principle no different from the .right to establish and operate private telecasting stations. In principle, there is no difference between a permanent TV station and a temporary one; similarly there is no distinction in principle between a stationary TV facility and a mobile one; so also is there no distinction between a regular TV facility and a TV. facility for a given event or series of events. If the right claimed by the petitioners (CAB and BCCI) is held to be constitutionally sane-

MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [B.P. JEEVAN REDDY, J.] 1187

tioned one, then each and every citizen of this country must also be entitled to claim similar right in respect of his event or events, as the case may be. I am of the opinion that no such right flows from Article 19(1)(a).

(b) Airwaves constitute public property and must be utilised for · advancing public good. No individual has a right to utilise them at his choice and pleasure and for purposes of his choice including profit. The right of free speech guaranteed by Article 19(1)(a) does not include the right to use airwaves, which are public property. The airwaves can be used by a citizen for the purpose of broadcasting only when allowed to do so by a statute and in accordance with such statute. Airwaves being publ~c property, it is the duty of the State to see that airwaves are so utilised as to advance the free speech right of the citizens which is served by ensuring plurality and diversity of views, opinions and ideas. This is imperative in every democracy where freedom of speech is assured. The free speech right guaranteed to every citizen of this country does not encompass the right to use these airwaves at his choosing. Conceding such a right would be detrimental to the free speech right of the body of citizens inasmuch as only the privileged few - powerful economic, commercial and political interests - would come to dominate the media. By manipulating the news, views and information, by indulging in misinformation and disinformation, to suit their commercial or other interests, they would be harming - and not serving - the principle of plurality and diversity of views, news, ideas and opinions. This has been the experience of Italy where a limited right, i.e., at the local level but not at the national level was recognised. It is also not possible to imply or infer a right from the guarantee of free speech which only a few can enjoy. F (c) BroadGasting media is inherently different from Press or other means of communication/information. The analogy of press is misleading and inappropriate. This is also the view expressed by several Constitutional Courts including that of the United States of America.

( d) I must clarify what I says; it is that the right claimed by the G petitioners (CAB and BCCI) - which in effect is no clifferent in principle from a right to establish and operate a private TV station - does not flow from Article 19(1)(a); that such a right is not implicit. The question whether such right should be given to the citizens of this country is a matter of policy for the Parliament. Having regard to the revolution in information H

1188 SUPREME COURT REPORTS [1995] 1 S.C.R.

A technology and the developments all around, Parliament may, or may not decide to confer such right. If it wishes to confer such a right, it can only be way of an Act made by Parliament. The Act made should be consistent + with the right of free speech of the citizens and must have to contain strict programme and other controls, as has been provided, for example, in the Broadcasting Act, 1991 in the United Kingdom. This is the implicit com- B .mand of Article 19(1)(a) and is essential to preserve and promote plurality and diversity of views, news opinions and ideas.

(e) There is an inseparable inter-connection between freedom of speech and the stability of the society, i.e., stability of a nation-State. They 1'- ~

c contribute to each other. Ours iS a nascent republic. We are yet to achieve the goal of a stable society. This country cannot also ·afford to read into Article 19(1)(a) an·unrestricted right to licensing (right of broadcasting)_ as claimed by the petitioners herein.

(t) In the case before us, both the petitioners have sold their right to telecast the matches to a foreign agency. They have parted with the right. The right to telecast the matches, including the right to import, install and operate the requisite equipment, is thus really sought by the foreign agen~ cies and not by the petitioners. Hence, the question of violation of their right under Article 19(1)(a) resulting from refusal of licences/permission to such foreign agencies does not arise.

2. The Government monopoly of broadcasting media in this country is the result of historical and other factors. This is true of every other country, to start with. That India and not a free country till 1947 and its citizens did not have constitutionally guaranteed fundamental freedoms till 1950 coupled with the fact that our Constitution is just about forty five years ..... into operation explains the Government monopoly. As pointed out in the body of the judgment, broadcasting media was a monopoly of the Govern- ment, to start with, in every country except the United States where a conscious decision was taken at the very beginning not to have State G monopoly over the medium. Until recently, the broadcasting media has been in the hands of public/statutory corporations in most of the West European countries. Private broadcasting is comparatively a recent ~ phenomenon.· The experience in Italy of allowing private broadcasting at local level (while prohibiting it at national level) has left much to be H desired. It bas given rise to powerful media empires which development is

MIN. OF INFORMATION AND BROADCASflNG v. CRICKET ASSN. OF BENGAL [B.P. JEEVAN REDDY, J.) 1189

certainly not conducive to free speech right of the citizens. A 3(a). It has been held by this Court- and rightly - that broadcasting . media is affected by the free speech right of the citizens guaranteed by Article 19(1)(a). This is also the view expressed by all the Constitutional Courts whose opinions have been referred to in the body of the judgment. B Once this is so, monopoly of this medium (broadcasting media), whether by Government or by an individual, body or organisation is unacceptable. Clause (2) of Article 19 does not permit a monopoly in the matter of freedom of speech and expression as is permitted by clause (6) of Article 19 vis-a-vis the right guaranteed by Article 19(1)(g). c (b) The right of free speech and expression includes the right to receive and expression includes the right to receive and impart information. For ensuring the free speech right of the citizens of this country, it is necessary that the citizens have the benefit of plurality of views and a range of opinions on all public issues. A successful democracy posits an 'aware' D citizenry. Diversity of opinions, views, ideas and ideologies is essential to enable the citizens to arrive at informed judgment on all issues toughing them. This cannot be provided by a medium controlled by a monopoly - whether the monopoly is of the State or any other individual, group or organisation. As a matter of fact, private broadcasting stations may perhaps be more prejudicial to free speech right of the citizens than the government controlled media, as explained in the body of the judgment. The broadcast- ing media should be under the control of the public as distinct from Govern- ment. This is the command implicit in Article 19(1)(a). It should be operated by a public statutory corporation or corporations, as the case may be, whose constitution and composition must be such as to ensure its/their impart.iality in political, economic and social matters and on all other public issues. It/they must be required by law to present news, views and opinions in a balanced way ensuring pluralism and diversity of opinions and views. It/they must provide equal access to all the citizens and groups to avail of the medium. G

4. The Indian Telegraph Act. 1885 is totally inadequate to govern an important medium like the radio and television, i.e., broadcasting media. The Act was intended for an altogether different purpose when it was enacted. This is the result of the law in this country not keeping pace with the technological advances in the field of information and communications. H

1190 SUPREME COURT REPORTS [1995] 1 S.C.R.

A While all the leading democratic countries have enacted laws specifically 0 governing the broadcasting media, the law in this country has stood still, rooted in the Telegraph Act of 1885. Except Section 4(1) and the definition of telegraph, no other.provision of the Act is shown to have any relevaace to. broadcasting media. It is therefore, imperative that the Parliam:!nt makes a law placing the broadcasting media in the hands of a B public/statutory corporate or the corporations, as the case may be. This is necessary to safeguard the interests of public and the interests of law as also to avoid uncertainty, confusion and consequent litigation.

5. The CAB did not ever apply for a license under the first proviso to Section 4 of the Telegraph Act nor did its agents ever make such an application. The permissions, clearances or exemption obtained by it from the several departments (mentioned in judgment) are no substitute for a license under Section 4(1) proviso. In the absence of such a license, the CAB had no right in law to have its matches telecast by an agency of its choice. The legality or validity of the orders passed by Sri N. Vithal, Secretary to the Government of India, Telecommunications Department n.eed not be gone into since it has become academic. In the facts and circumstances of the case, the charge of malafides or of arbitrary and authoritarian conduct attributed to Doordarshan and Ministry of Informa- tion and Broadcasting is not acceptable. No opinion need be expressed on the allegations made in the Interlocutory Application filed by BCCI in · these matters. Its intervention was confined to legal questions only.

6. Now the question arises, what is the position till the Central Government or the Parliament takes steps as contemplated in Para (4) of the summary, i.e., if any sporting event or other event is to be telecast from the Indian soil? The obvious answer flowing from the judgment (and Paras (1) and (4) of this summary) is that the organiser of such event has to approach the nodal Ministry as specified in the decision of the Meeting of the Committee of Secretaries held on November 12, 1993. I have no reason d to doubt that such a request would be considered by the nodal Ministry and the AIR and Doordarshan on its merits, keeping in view the public interest. In case of any difference of opinion or dispute regarding the monetary terms on which such telecast is to be made, matter can always be referred to an Arbitrator or a panel of Arbitrators. In case, the nodal Ministry or the AIR or Do~rdarshan fmd such broadcast/telecast not feasible, then may consider the grant of permission to the organisers to /. . // // '/

MIN. OF INFORMATION AND BROADCASI1NG v. CRICKET ASSN. OF BENGAL [B.P. JEEVAN REDDY, J.] 1191

engage an agency of their own for the purpose. Of course, it would be equally open to the nodal Ministry (Government of India) to permit such . foreign agency in addition to AIR/Doordarshan, if they are of the opinion that such a course is called for in the circumstances.

For the above reasons, the appeals, writ petition and applications are disposed of in the above terms. No costs. B S.M. Disposing of the appeals and petition.