BROADCASTING, GOVERNMENT OF INDIA AND ORS. v. CRICKET ASSOCIATION OF BENGAL AND ORS.

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

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

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

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

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

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

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

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

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

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

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

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

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

11Copy pinpoint11. We may now summarise the law on the freedom of speech and expression under Article 19 (1) (a) as restricted by Article 19 (2). The freedom of speech and expression includes right to acquire information and to disseminate it. Freedom of speech and expression is necessary, for self expression which is an important means of free conscience and self fulfilment. It enables people to contribute to debates of social and moral issues. It is the best way to fmd a truest model of anything, since it is only thro"ugh it, that the widest possible range of ideas can circulate. It is the

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

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

This fundamental right can be limited only by reasonable restrictions under a law made for the purposes mentioned in Article 19(2) of the Constitution.

The burden is on the authority to justify the restrictions. Public order is not the samt; thing as public safety and hence no restrictions can be placed on the right to freedom of speech and expression on the ground that public safety is endangered. Unlike in the American Constitution, limitations on fundamental rights are specifically spell out under Article 19(2) of our Constitution. Hence no restrictions can be placed on the right to freedom of speech and expression on grounds other those specified under Article 19 (2) .. E

12Copy pinpoint12. What distinguishes the electronic media like the televii;ion from the print media or other media is that has both audio and visual appeal and has a more pervasive presence. It has a greater impact on the minds of the viewers and is also more readily accessible to all including children at home. Unlike the print media, however, there is a built-in limitation on the use of electronic media because the airwaves are a public property and hence are owned or controlled by the Government or a central national authority or they are not available on account of the scarcity, costs and competition.

13Copy pinpoint13. The next question to be answered in this connection is whether there can be a monopoly in broadcasting/telecasting. Broadcasting is a means of communication and, therefore, a medium of speech and expres- sion. Hence in a democratic polity, neither any private individual, institu- tion or organisation nor any Government or Government organisation can claim exclusive right over it. Our Constitution also forbids monopoly either .H

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

A in the print or electronic media. The monopoly permitted by our Constitu- tion is only in respect of carrying on a trade, business, Industry or service under Article 19(6) to subserve the interests of the general public. How- ever, the monopoly in broadcasting and telecasting is often claimed by the Government to utilise the public resources in the form of the limited frequencies available for the benefit of the society at large. It is justified by the Government to prevent the concentration of the frequencies in the hands of the rich few who can monopolise the dissemination of views and information to suit their interests and thus in fact to control and manipulate public opinion in effect smothering the right to freedom of speech and expression and freedom of information of others. The claim to monopoly made on this ground may, however, lose all 'its raison d'etre if either any section of the society is unreasonably denied an access to broadcasting or the governmental agency claims exclusive right to prepare and relay programmes. The ground is further not available when those claiming an access either do not make a demand on the limited frequencies controlled by the Government or claim the frequency which is not utilised and is available for transmission. The Government sometimes claims monopoly also on the ground that having regard to all pervasive presence and impact t- - of the electronic media, it may be utilised for purposes not permitted by law -and the damage done by private broadcasters may be irreparable. There is much to be said in favour of this view and it is for this reason that the regulatory provisions including those for granting licences to private broadcasting where it is permitted, are enacted. On the other hand, if the Government is vested with an unbridled discretion to grant or refuse to grant the license or access to the media, the reason for creating monopoly will lose its validity. For then it is the government which will be enabled to effectively suppress the freedom of speech and expression instead of protecting it and utilising the licensing power strictly for the purposes for which it is conferred. It is for this reason that in most of the democratic countries an independent autonomous broadcasting authority is created to control all aspects of the operation of the electronic media. Such authority is representative of all sections of the society and is free from control of the political and administrative executive of the State.

In this country, unlike in the United States and some European countries, there has been a monopoly of broadcasting/telecasting in the Government. The Indian Telegraph Act, 1885 [hereinafter referred to as the ''Telegraph Act" ] creates this monopoly and vests the power of regulat-

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

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

"4. (1) Within India the Central Government shall have the ex- clusive privilege of establishing, maintaining and working telegraphs : D / .. Provided that the Central Government may grant a Licence, on such conditions and in consideration of such payments as it thinks fit, to any person to establish, maintain or work a telegraph within any part of India :

Provided further that the Central Government may, by rules made under this Act and published in the Official Gazette, permit, subject to such restrictions and conditions as it thinks fit, the establishment, maintenance and working -

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

(b) of telegraphs other than wireless telegraph within any part of India. G (2) The Central Government may, by notification in the Official

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

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

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

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

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

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

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

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

propagated in space without artificial guide. A

The first proviso to Section 4(1) states that the Central Government may grant licence on such conditions and in consideration of such payment as it thinks fit, to any person, to establish, maintain or work a telegraph within any part of India. We are not concerned here with the permission to establish or maintain a telegraph because in the present case the permission is sought only for operating a telegraph and that too for a limited time and for a limited and specified purpose. The purpose again is non-commercial. It is to relay the specific number of cricket matches. It is only incidentally that the CAB will earn some revenue by selling its right to relay the matches organised by it. The CAB is obviously not a business or a commercial organisation nor can it be said that it is organising matches for earning profits as a business proposition. As will be pointed out later, it is a sporting organisation devoted to the cause of cricket and has been organising cricket matches both of internal and international cricket teams for the benefit of the sport, the cricketeers, the sportsmen present and prospective and of the viewers of the matches. The restrictions and condi- tions that the Central Government is authorised to place under s.4(1) while permitting non-wireless telegraphing can, as stated earlier, only be those which are warranted by the purposes mentioned in Article 19 (2) and none else. It is not and cannot be the case of the Government that by granting the permission in question, the sovereignty and integrity of India, the security of the State, friendly relations with foreign State, public order, decency or morality or either of them will be in jeopardy or that the permission will lead to the contempt of court, defamation or incitement to an offence. On the other hand, the arguments advanced are specious and with· them we will deal a little later. F

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

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

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

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

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

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

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

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

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

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

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

A the media. It is next urged that the rights of an organiser to use airwaves as a medium to telecast and thereby propagate his views, are distinct from his right to commercially exploit the event. Although it is conceded that an organiser cannot be denied access on impermissible grounds, it is urged that he cannot further claim a right to use an agency of his choice as a part of his right of free speech. In any event no person can claim to exercise his a right under Article 19 (1) (a) in a manner which makes it device for a non-citizen to assert rights which are denied by the Constitution. According to MIB, it is the case of the BCCI that to promote its commercial interest, it is entitled to demand that the Government grants all the necessary licenses and permissions to any foreign agency of its choice and a refusal to do so would violate Article 19 (l)(a). According to MIB, this is an indirect method to seek protection of Article 19(1) (a) to the non-citizens.

D It is then contended that a free-speech right of a viewer has been recognised as that having a paramount importance by the US Supreme Court and this view is all the more significant in a country like ours. While accepting that the electronic media is undoubtedly the most powerful media of communication both from the perspective of its reach as well as its impact, transcending all barriers including that of illiteracy, it is con- E tended that it is very cost-intensive. Unless, therefore, the rights of the viewers are given primacy, it will in practice result in the affluent having the sole right to air their views completely eroding the right of the viewers. The right of viewer can only be safeguarded by the regulatory agency by controlling the frequencies of broadcast as it is otherwise impossible for viewers to exercise their right to free speech qua the electronic media in any meaningful way.

Lastly, dealing with the contention raised on behalf of the CAB and BCCI that the monopoly conferred upon DD is violative of Article 19(1) (a), while objecting to the contention on the ground that the issue does not arise in the present proceedings and is not raised in the pleadings, it is submitted on behalf of MIB that the principal contentions of the CAB/BCCI are that they are entitled to market their right to telecast event at the highest possible value it may command and if the DD is unwilling to pay as much as the highest bidder, the CAB/BCCI has the right not only to market the event but to demand as of right, all the necessary licences

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

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

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

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

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

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

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

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

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

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

The BCCI and CAB have a right under Article 19 (1) (a) to produce, transmit, telecast and broadcast their event directly or through its agent. The right to circulate information is a part of the right guaranteed under Article 19(1)(a). Even otherwise, the viewers and persons interested in sports by way of education, information, record and entertainment have a right to such information, knowledge and entertainment. The content of the right under Article 19 (1) (a) reaches out to protect the information of the viewers also. In the present case, there is a right of the viewers and also the right of the producer to telecast the event and in view of these two rights, there is an obligation on the part of the Department of Telecom- munication to allow the telecasting of the event. E It is then contended that the grant of a licence under section 4 of the Act is a regulatory measure and does not entitle MIB either to deny a license to BCCl/CAB for the purposes of production, transmission and telecasting sports events or to impose any condition unrelated to Arti~le 19(2). If such denial or imposition is made, it would amount to proluoi- a tion. Hence the MIB is obliged and duty-bound in law to grant licence against payment of fees related to and calculated on the basis of user of time only, as has been standardized and not otherwise. Any other method applied by MIB/DD would be violative of Article 19 (l)(a). The grant of license under section 4 of the Act has thus to be harmohiously read with the right of the citizen under Article 19 (l)(a). The Constitution does not visualize any monopoly in Article 19(1) (a). Hence DD cannot claim the same nor can the commercial interest of DD or claim of exclusivity by it of generation of signals be a ground for declaring permission under section 4 of the Act. Hence the following restrictions sought to be imposed fall outside the ambit of Article 19(2) and are unconstitutional. The restrictions are: H

1092 SUPREME COURT REPORTS [1995] 1 S.C.R.

A (a) That unless BCCI or CAB televises the matches in collabora- tion with DD, a license shall not be granted. ·

(b) The DD alone will be the host broadcaster of the signals and. BCCl/CAB .or its agency must take the signal from DD alone and

B (c) Unless the BCCI or CAB accepts the terms and conditions imposed by DD, the production of signal and transmission and telecast thereof shall not be permitted.

It is further contended that there is no monopoly in relation to what viewer must today view and the American decision relied upon on behalf of MIB have no bearing on the present state of affairs, Satellite can beam directly on to television sales through dish antenna, all programmes whose ·footprints are receivable in the country. Further, any one can record a programme in India and then telecast it by sending the cassette out as is being done in the case of several private TV channels. Various foreign news organizations such as the BBC and the CNN record directly Indian events and then transmit their own signals after a while to be telecast by their organizations.

Further, the non-availability of channel is of no consequence in the present days of technological development. Any person intending to telecast/broadcast an event can do so directly even without routing signal through the channels of DD or MIB. What is required to ensure is that the ·secured channel are not interfered with or overlapped. On account of the availability of innumerable satellites in the Geo-Stationary Orbit of the Hemisphere, the signals can directly be uplinked through any of the p available transponders of satellite whose footprint can be received back through appropriate electronic device. As a matter of fact, beaming zone of only 3 satellites parked 3000 Kms. above the surface of the earth can cover the entire Hemisphere. Moreover, due to technological develop- ments, frequency is becoming thinner and thinner and as a result, availability of frequencies has increased enormously and at present there are millions of frequencies available. In order to ensure that none of the footprints of any satellite overlaps the footprint of other satellite, each and every satellite is parked at a different degree and angle. Hence, there is no resorce crunch or in-built restriction on the availability of electronic +--- media, as contended by MIB. In this connection it is also pointed out that there is a difference in the right spelt out by Article 19 (1) (a) of our

MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL (SAWANT, J.] 1093

Constitution and that spelt out by the First Amendment of the American A Constitution.

It is also contended that in no other country the right to televise or broadcast is in the exclusive domain of any particular body. In this connec- tion, a reference is mode to various instances in other countries where the host broadcaster has been other than the domestic network, which instan- B ces are not controverted. It is also urged that there is no policy of the Government of India as urged on behalf of the MIB that telecasting of sporting events would be within the exclusive domain and purview of DD/MIB who alone would market their rights to other authorities in whole or in part. It is pointed out that the extract from the minutes of the meeting C of the Committee of Secretaries held on 12th November, 1993 relied upon by the MIB for the purpose is not a proof of such policy. The said minutes are 'executive decision' of a few secretaries of the various departments of the Government.

D It is also urged that even public interest or interest of general public cannot be a ground for refusal or for the imposition of restrictions or for claiming exclusivity in any manner whatsoever. Such restriction, if imposed will be violative of Article 19(1)(a). To suggest that power to grant a license,, shall not be exercised under any circumstances because of the policy of the Government, is arbitrary inasmuch as the power conferred is not being E used for the purpose for which it has been conferred.

It is then contended that both BCCI and CAB are non-profit making organizations and their sole object is to promote the game of cricket in this country and for that purpose not only proper and adequate infrastructures p are required to be erected, build and maintained, but also huge expenses have to be incurred to improve the game which includes, amongst others, grant of subsidies and grants tO the Member Associations, upgradation of infrastructure, training of cricketeers from school level, payments to the cricketeers, insurance and benevolent funds for the cricketeers, training of G umpires, payments of foreign participants, including guarantee money etc. The quantum of amount to be spent for all these purposes has increased during the course of time. These expenses are met from the amounts earned by the BCCI and CAB since they have no other continuous source of income. The earnings of BCCI and CAB are basically from arranging various tournaments, in stadia advertisements and licence fee for permit- H

1094 SUPREME COURT REPORTS (1995) 1 S.C.R.

A ting telecast and censorship. At least 70 per cent of the income earned through the advertisements 'and generated by the TV network while ~ telecasting of the matches, is paid to the organizer apart from the minimum guaranteed money as is apparent from the various agreements entered by and between BCCl/CAB as well as DD with other networks. The DD in effect desires to snatch away the right of telecast for its own commercial interest through advertisement, and at the same time also demand money from the organizers as and by way of production fee.

Merely because an organization may earn profit from an activity whose character is predominantly covered under Article 19(1) (a), it would not convert the activity into one involving Article 19(1)(g). The test of predominant character of the activity has to be applied. It has also to be ascertained as to who is the person who is utilizing the activity. If a businessman were to put in an advertisement for simpliciter commercial activity, it may render the activity, the one covered by Article 19 (1) (g). D But even newspapers or a film telecast or sports event telecast will be protected by Article 19 (1) (a) and will not become an activity under Article 19(1)(a) merely because it earns money from advertisements in the process. Similarly, if the cricket match is telecast and profit is earned by r ·. the licensing of telecasting right and receipts from advertisements, it will be an essential element for utilization and fulfillment of its object. The said E object cannot be achieved without such revenue.

Rebutting the argument that the organisation of sports is an industry and, therefore, monopoly under Article 19(6) is permissible, it is pointed ' out that even if, in matters relating to business and profession, the State F can' create'monopoly'under Article 19 (6), it can still not infringe Article ' 19(1)(a), while the State may monopolise the textile industry, it cannot prohibit the publication of books and articles on textiles. . . ~ I.

It is also contended that the exercise of right claimed in the present case is by BCCI/CAB and its office bearers who are citizens of India. G ·Merely because foreign equipment and technical and personnel are used as Collaborators to exercise".the said right more effectively, it does not dilute the'·co~tent of Article 'i⁹ (1) (a) nor does it become an exercise of +-- riglit'bla'n.oi:J.':.citi.Ze'ns:'fu this connection, it is emphasised that the DD is ~so7iisiiigWorldtel, a foreign agency. Most of the newspapers in India are printed on machines imported from aboard. A newspaper may also have:a., H . tinu . · ·~· • "'

I MIN. OF INFORMATION AND BROADCASTING v. CRICKEI' ASSN. OF BENGAL (SAWANT, J.) 1095

foreigner as its manager. However, that does not take away the right of the newspaper under Article 19 (1) (a). They are only instances of technical collaboration. Apart from its, every citizen has a right to information as the same cannot be taken away on grounds urged by the MIB.

17Copy pinpoint17. It will be apparent from the contentions advanced on behalf of MIB that their main thrust is that the right claimed by the BCCl/CAB is not the right of freedom of speech under Article 19(1)(a), but a commer- cial right or the right to trade under Article 19(1) (g). The contention is based mainly on two grounds viz., there is no free speech element in the telecast of sports and secondly, the primary object of the BCCI/CAB in seeking to telecast the cricket matches is not to educate and entertain the viewer but to make money.

It. can hardly be denied that sport is an expression of self. In an athletic or individual event, the individual expresses himself through his individual feat. In a team event such as cricket, football, hockey etc., there is both individual and collective expression. It may be true that what is protected by Article 19 (1) (a) is an expression of t~ought and feeling and not of the physical or intellectual process or skill. It is also true that a person desiring to telecast sports events when he is not himself a par- ticipant in the game, does not seek to exercise his right of self expression. However, the right to freedom of spe~ch and expression also includes the right to educate, to inform and to entertain and also the right to be educated, informed and entertained. The former is the right of the telecaster and the latter of the viewers. The right to telecast sporting event will therefore also mclude the right to educate and inform the present and the prospective sportsmen interested in the particular game and also to inform and entertain the lovers of the game. Hence, when a telecaster desires to telecast a sporting event, it is incorrect to say that the free speech element is absent from his right. The degree of the element will depend upon the character of the telecaster who claims the right. An organiser such as the BCCI or CAB in the present case which are indisputably devoted to the promotion of the game of cricket, can9ot be placed in the same scale as the business organisations whose only intention is to make as large a profit as can be made by telecasting the game. Whereas it can be said that there is hardly any free speech element in the right to telecast when it is asserted by the latter, it will be a warped and cussed view to take when the former claim the same right, and contend that in claiming the H

1096 SUPREME COURT REPORTS (1995] 1 S.C.R.

\ A right to telecast the 'cricket matches organised by them, they are asserting . the right to make business out of it. The sporting organisations such as BCCl/CAB which are interested in promoting the sport or sports are under I an obligation to organise the sports events and can legitimately be accused of failing in their duty to do so. The promotion of sports also includes its popularization through all legitimate means. For this purpose, they are duty bound to select the best means and methods to reach the maximum number of listeners and viewers. Since at present, radio and TV are the most efficacious methods, thanks to the technological development, the sports organisations like BCCl/CAB Will be neglecting their duty in not exploring the said media and in not employing the best means available to them to popularise the game. That while pursuing their objective of popularising the sports by electing the best available means of doing so, they incidentally earn some revenue, will not convert either them into commercial organisa- tions or the right claimed by them to explore the said means, · into a commercial right or interest. It must further be remembered that sporting · D organisations such as BCCl/CAB in the present case, have not been established only to organise the sports events or to broadcast or telecast them. The organisation of sporting events is only a part of their various objects, as pointed out earlier and even when they organise the events, they are primarily to educate the sportsmen, to promote and popularise the sports and also to inform and entertain the viewers. The organisation of E such events involves huge cosfs. Whether surplus is left after defraying all the expenses, is ploughed back by them in the organisation itself. It will be taking a deliberately distorted view of the right claimed by such organisa- tions to telecast the sporting event to call it an assertion of a commercial right. Yet the MIB has chosen to advance such contention which ean only ,,.P be described as most unfortunate. It is needless to state that we are, in the circumstances, unable to accept the ill-advised argument. It does no credit to the Ministry or to the Government as a whole to denigrate the sporting organisations such as ·BCCI/CAB by placing them on par with business organisations sponsoring sporting events for profit and the access claimed by them to telecasting as assertion of commercial interest. G The second contention of MIB is based upon the propositions laid down by the US Supreme Court, viz., there are inherent limitations im- posed .on the right to telecast/broadcast as there is scarcity of resou~ces, +- ./ i.e.. of frequencies,· and therefore the need to use them in the interest of the largest number. There is also a pervasive presence of electronic media

MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL (SAWANT, J.) 1097

such as TV. It has a greater impact on the minds of the people of all ages and strata of the society necessitating the prerequisite of licensing of the programmes. It is also contended on that account that the licensing of frequencies and consequent regulation of telecasting/broadcasting would not be a matter governed by Article 19 (2). Where as Article 19(2) applies - to restrictions imposed by the State, the inherent limitations on the right to telecast/broadcast are imposed by nature.

In the first instance, it must be remembered that all the decisions of the US Supreme Court relied upon in support of this contention, are on the right of the private broadcasters to establish their own broadcasting stations by claiming a share in or access to the airwaves or frequencies. In C the United States, there is no Central Government-owned or controlled broadcasting centre. There is only a Federal Commission to regulate broadcasting stations which are all owned by private broadcasters. Second- ly, the American Constitution does not explicitly state the restrictions on the right of freedom of speech and expression as our Constitution does. D Hence, the decisions in question have done on more than impliedly reading 1' such restrictions. The decisions of the U.S. Supreme Court, therefore, in the context of the right claimed by the private broadcasters are irrelevant for our present purpose. In the present case what is claimed is a right to an access to telecasting specific events for a limited duration and during limited hours of the day. There is no demand for owning or controlling a E frequency. Secondly, unlike in the cases in the US which came for con- sideration before the US Supreme Court, the right to share in the frequen- cy is not claimed without a license. Thirdly, the right to use a frequency for a limited duration is not claimed by a business organisation to make profit and lastly and this is an important aspect of the present case, to which no reply has been given by the MIB, there is no claim to any frequency owned and controlled by the Government. What is claimed is permission to uplink the signal created by the organiser of the events to a foreign satellite.

There is no doubt that since the airwaves/frequencies are a public property and are also limited, they have to be used in the best interest of the society and this can be done either by a central authority by establishing its own broadcasting network or regulating the grant of licences to other agencies, including the private agencies. What is further, the electronic media is the most powerful media both because of its audio-visual impact, H

1098 SUPREME COURT REPORTS [1995] 1 S.C.R.

A and its widest reach covering the section of the society whether the print .media does not reach. The right to use the airwaves and the co.ntent of the programmes, therefore, needs regulation for balancing it and as well as to prevent monopoly of information and views relayed, which is a potential danger flowing from the concentration of the right to broadcast/telecast in B the hands either of a central agency or of few private affluent broadcasters. That is why the need to have a central agency representative of all sections of the societY free from control both of the Government and the dominant influential sections of the socif,!ty. This is not disputed. But to contend that on that account the restrictions to be imposed on the right under Article 19 (l)(a) should be in addition to those permissible under Article 19 (2) C and dictated by the use of public resources in the best interests of the society at large, is to misconceive both the content of the freedom.of speech and expression and the problems posed by the element of public property in, and the alleged scarcity of, the frequencies as well as by the wider reach of the media. If the right to freedom of speech and expression includes the right to disseminate information to as wide a section of the population as is possible, the access which enable the right to be so exercised is also an integral part of the said right. The wider range of circulation of information or its greater impact cannot restrict the content of the right nor can it justify its denial. The virtues of the electronic media cannot become its enemies. It may warrant a greater regulation over licensing and control and vigilance on the content of the programme telecast.. However, this control can only be exercised within the framework of Article 19 (2) and the dictates of public interests. To plead for other grounds is to plead for unconstitutional measures. It is further difficult to appreciate such conten- F tion on the part of the Government in this country when they have a complete control over the fre9uencies and the content of the programme to be telecast. They control the sole agency of telecasting. They are also armed with the provisions of Article 19(2) and the powers of pre-censor- ship under the Cinematograph Act and Rules. The only limitations on the said right is, therefore, the limitation of resources and, the need to use them for the benefit of all. When, however, there are surplus or unlimited resources and the public interests so demand or in any case do not prevent telecasting, the validity of the argument based on limitation of resources disappears. It is true that to own a frequency for the purposes of broad- +- . c:aSting is a costly affair and even when there are surplus or unlimited frequencies, only the affluent few will own them and will be in a position

MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [SAWANT,J.] 1()99

to use it to subserve their own interest by manipulating news and views. A That also poses a danger to the freedom of speech and expression of the have-nots by denying them the truthful information on all sides of an issue which is so necessary to form a sound view on any subject. That is why the doctrine of fairness which is evolved in the U.S. in the context of the private broadcasters licensed to share the limited frequencies with the central B agency like the FCC to regulate the prograinming. But this phenomenon occurs even in the case of the print media of all the countries. Hence the body like the Press Council of India which is empowered to enforce, however imperfectly, the right to reply. The print media further enjoys as in our country, freedom from pre-censorship unlike the electronic media. c As stated earlier, we are not concerned in the present case with lhe right of the private broadcasters, but only with the limited right for telecast- ing particular cricket matches for particular hours of the day and for a particular period. It is not suggested that the said right is objectionable on any of the grounds mentioned in Article 19 (2) or is against the proper use of the public resources. The only objection taken against the refusal to grant the said right is that of the limited resources. That abjection is completely misplaced in the present case since the claim is not made on any of the frequencies owned, controlled and utilised by the DD. The right claimed is for uplinking the signal generated by the .BCCl/CAB to a satellite owned by another agency. The objection, therefore, is devoid of any merit and untenable in law. It< also displays a deliberate obdurate approach.

The thifd contention advanced on behalf of the MIB is only an extended aspect of the first contention. It is based on the same distorted p interpretation of the right claimed. It proceeds on the footing that the BCCl/CAB is claiming a commercial right to exploit ·the sporting event when they assert that they have a right to telecast the event through an agency of their choice. It is even contended on behalf of the MIB that this amounts to a device for a non-citizen to assert rights under Article 19(1) (a) which are not available to him. G

It is unnecessary to repeat what we have stated while dealing with the first contention earlier, with regard to the character of BCCI/CAB, the nature of and the purpose for which the right to access to telecast is claimed by them. As pointed out is not possible to hold that what the H

1100 SUPREME COURT REPORTS [1995) 1-S.CR.

A BCCl/CAB are in the present cast claiming is commercial right to exploit the event unless one takes a perverse view of the matter.. The extent of perversity is apparent from the contention raised by them that to engage a foreign agency for the purpose is to make' it a device for a non-~itizen to assert his rights under Article 19(1)(a). It cannot be denied thatI the right to freedom of speech and expression under Article 19(1)(a) includes the right to disseminate information by the best possible method through an agency of one's choice so long as the engagement of such agency is not in contravention of Article 19(2) of the Constitution and does not amount to improper or unwarranted use of the frequencies. Hence the choice of BCCI/CAB of a foreign agency to telecast the matches, cannot be objected to. There is no suggestion in the present case that the engagement of the foreign agency by the BCCI/CAB is violative of the provisions of Article 19(2). On the other hand, the case of MIB, as pointed out earlier, is that the BCCI/CAB want to engage the foreign agency to maximise its revenue and hence they are not exercisi£g their right under Article 19(1) (a) but their commercial right under Article 19(1) (g). We have pointed out that argument is not factually correct and what 'in fact that BCCI/CAB is asserting is a right under Article 19(1)(a). While asserting the said right, it is incidentally going to earn some revenue. In the circumstances, it has the right to choose the best method to earn the maximum revenue possible. E In fact, it can be accused of negligence and may be attributed improper motives, if it fails to explore the most profitable avenue of telecasting the event, when in any case, in achieving the object of promoting and popularising the sports, it has to endeavour to telecast the cricket matches. The record shows that all applications were made and purported to have F been made to the various agencies on behalf of CAB for the necessary licences and permissions. All other Ministries and Departments under- stood them as such and granted the necessary permission and licences. Hence, by granting such permission, the Government was not in fact granting permission to the foreign agency to exercise its right under Article 19(1)(a). If, further, that was the only objection in granting permission, a G positive approach on the part of the MIB could have made it clear in the permission granted that it was being given to CAB. In fact, when all other Government Departments had no difficulty in construing the application to that effect and granting the necessary sanctions/permissions at th~ir end, it is difficult to understand the position taken by the MIB in that behalf. H One wishes that such a contention was not advanced.

r MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [SAWANT, J.) 1101

The fourth contention is that, as held by the US Supreme Court, the freedom of speech has to be viewed also as a right of the viewers. which has a paramount importance, and the said view has significance in a country like ours. To safeguard the rights of the viewers in this country, it is necessary to regulate and restrict the right to access to telecasting. There cannot be any dispute with this proposition. We have in fact referred to this right of the viewers in another context earlier. True democracy cannot exist unless all citizens have a right to participate in the affairs of the polity of the country. The right to participate in the affairs of the country is meaningless unless the citizens are well informed on all sides of the issues, in respect of which they are called upon to express their views. One-sided information, disinformation, misinformation and non-information all equal- C ly create an uninformed citizenry which makes democracy a farce when medium of information is monopolised either by a partisan central authority or by private individuals or oligarchic organisations. This is particularly so in a country like ours where about 65 per cent of the population is illiterate and hardly 1-1/2 per cent of the population has an access to the print media which is not subject to pre-censorship. When, therefore, the electronic media is controlled by one central agency or few private agencies of the rich, there is a need to have a central agency, as stated earlier, representing all sections of the society. Hence to have a representative central agency to ensure the viewers' right to be informed adequately and truthfully is a part of the right of the viewers under Article 19(1)(a). We are, however, unable to appreciate this contention in the present context since the viewers' rights are not at all affected by the BCCl/CAB, by claiming a right to telecast the cricket matches. On the other hand, the facts on record show that their rights would very much be trampled if the cricket matches are not telecast through the D.D., which has the monopoly of the national telecasting network. Although, there is no statistical data available (and this is not a deficiency felt only in this arena), it cannot be denied that a vast section of the people in this country is interested in viewing the cricket matches. The game of cricket is by far the most popular in all parts of the country. This is evident from over-flow- G ing stadia at the venues wherever the matches are played and they are played all over the country. It will not be an exaggeration to say that at least one in three persons, if not more, is interested in viewing the cricket matches. Almost all television sets are switched on to view the matches. Those who do not have a T.V. set of their own, crowd around T.V. sets of . H

1102 SUPREME COURT REPORTS (1995] 1 S.C.R.

A other when the matches are on. This is not to mention the number of transistors and radios which are on during the match-hours. In the face of these revealing facts, it is difficult to understand why the present contention with regard to the viewers' right is raised in. this case when the grant of access to BCCl/CAB to telecast cricket matches was in the interest of the viewers and would have also contributed to promote their rights as well.

The last argument on behalf of the MIB is that since in the present case, the DD has not refused to telecast the event, its monopoly to telecast cannot be challenged and in fact no such contention was raised by the BCCl/CAB. We are afraid that this will not, be a proper reading of the contentions raised by BCCl/CAB in their pleadings both before the High Court and this Court. Undisputed facts on record show that the DD claimed exclusive right to create host broadcasting signal and to telecast it on the terms and conditions stipulated by it or not at all. MIB even refused to grant uplinking facilities when the terrestrial signal was being creating J

D by the CAB with their own apparatus, i.e., the apparatus of the agency which they had engaged and when the use of any of the frequencies owned, controlled or commanded by DD or the Government, was not involved. Since BCCI/CAB were the organisers of the events, they had every right to create terrestrial signals of their event and to sell it to whomsoever they thought best so long as such creation of the signal and the sale thereof was not violative of any law made under Article 19 (2) and was not an abuse of the frequencies which are a public property. Neither DD nor any other agency could impose their terms for creating signal or for telecasting them unless it was sought through their frequencies. When the DD refused to telecast cricket matches except on their terms, the BCCl/CAB turned to another agency, in the present case a foreign agency, for creating the terrestrial signal and telecasting it through the frequencies belonging to that agency. When the DD refused to telecast the matches, the rights of the viewers to view the matches were in jeopardy. Only the viewers in this country who could receive foreign frequencies on their TV sets, could have viewed the said matches. Hence it is not correct to say that the DD had not refused to telecast the events. To insist on telecasting events only on one's unreasonable terms and conditions and not otherwise when one has the monopoly of telecasting, is nothing but refusal to telecast the same. The DD could not do it except for reasons of non- availability of frequencies or for grounds available under Article 19(2) of the Constitution or for considerations of public interest involved in the use of the frequ~ncies as

MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL (SAWAl'<"T, J.] 1103

public property. The fact that the DD was prepared to telecast the events only on its terms shows that the frequency was available. Hence, scarcity of frequencies or public interests cannot be pressed as grounds for refusing to telecast.or denying access to BCCl/CAB to telecasting. Nor can the DD. plead encroachment on the right of viewers as a ground since the telecast- ing of events on the terms of the DD cannot alone be said to safeguard the right of viewers in such a case and i~ fact it was not so.

18Copy pinpoint18. Coming to the facts of the present case, which have given rise to

.... the present proceedings, the version of MIB is as follows :

On March 15, 1993, the CAB wrote a letter to the Director General C of Doordarshan that a Six-Nation International Cricket Tournament will be held in November, 1993 as a part of its Diamond Jubilee Celebrations and asked DD to send a detailed offer for any of the two alternatives, namely, (i) that DD would create 'Host Broadcaster Signal' and also undertake live telecast of all the matches in the tournament or (ii) any other party may create the 'Host Broadcaster Signal' and DD would only pur- chase the rights to telecast in India. CAB in particular emphasised that in either case, the foreign T.V. rights would be with CAB. The CAB also asked DD to indicate the royalty amount that would be paid by the DD. On March 18, 1993 the Controller of Programmes {Sp~rts), DD, replied to the letter stating amongst other things that during the meeting and during the telephonic conversation, fAB's President Dalmia had agreed to send them in writing the amount that he expected as rights fee payable to CAB exclusively for India, without the Star TV getting it. On March 19, 1993, CAB informed DD that they would be agreeable to DD creating the Host Broadcaster Signal and also granting DD exclusive right for India F without the Star TV getting it and the CAB would charge DD US $800,000 {US Dollars eight lakh) for only the same. The CAB, however, made it clear that they would reserve the right to sell/license the right world wide, excluding India and Star TV. The CAB also stated that DD '!\'Ould be under an obligation to .provide a picture and commentary subject to payment of DD's technical fees. On March 31, 1993, DD sent its bid as 'Host .G Broadcaster' for a sum of Rs. 1 crore stating inter alia, that CAB should grant signals to it exclusively for India without the Star TV getting it. The DD also stated that they would be in a position to create the 'Host Broadcaster Signal' and offer a live telecast of all the matches in the tournament. Thereafter, on May 4, 1993, the DD by a fax message .H

1104 SUPREME COURT REPORTS [1995) 1.S.C.R.

A reminded the President of CAB about its offer of March 31, 1993. To that CAB replied on May 12, 1993 that as the Committee of CAB had decided to sell/allot worldwide TV rights to one party, they would like to know whether DD would be interested in the deal and, if so, to send their offer for worldwide TV rights latest by May 17, 1993, on the following basis, namely, outright purchase of TV rights and sharing of rights fee. On May 14, 1993 DD by its fax addressed to CAB stated that it was committed to its earlier bid of Rs.I crore, namely, exclusive TV right in India alone. The DD also stated that as there was a speculation that Pakistan may not participate in the tournament, which may affect viewership and consequent commercial accruals. DD would have to rethink on the said bid also, in such an eventuality and requested CAB to reply to the said letter at the earliest.

On June 14, 1993, according to the MIB, without obtaining the required clearances from the Government for telecasting, the CAB entered into an agreement with the World Production Establishment (WPE) rep- resenting the interests of TWI (Trans World International), telecasting all the matches. The said agreement provided for grant of sole and exclusive . right to selVlicence or otherwise exploit throughout the world 'Exhibition Rights' in the tournament. CAB shall only retain radio rights for the territory of India. The CAB under the agreement was to receive not less than US $550,000 as guaranteed sum. If any income from the rights· fee is received in excess of the guaranteed sum, it was to be retained wholly by WPE until it was eventually split into 70:30 per cent as per the agreement. If the rights fee/income received was less than guaranteed sum, WPE was to pay the difference to CAB. The WPE was to pay, where possible, television license fee in advance of the start of the tournament.

On June 18, 1993, DD sent a fax to CAB stating therein that from the press reports, it had learnt that CAB had entered into an agreement with TWI for the TV coverage of the tournament, and the DD had decided not to telecast the matches of the tournament by paying TWI, and that DD G was not prepared to enter into any negotiations with TWI to obtain the television rights for the event. On June 30, 1993, DD also informed similarly International Management Group, Hong Kong.

On september 2, 1993, the Department of Youth Affairs and Spor~s, H Ministry of Human Resources Development, addressed a letter to the CAB

--"'-' MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL (SA WANT, J.] 1105

informing it that the Government has no objection to the proposed visit of the Cricket Teams of Pakistan, South Africa, Sri Lanka, West Indies and Zimbabwe, to India for participation in the tournament. The Department further stated that no foreign national shall visit any restricted/protected/ prohibited area of India without permission from the Ministry of Home Affairs. It was also clarified that the sanction of foreign exchange was subject to the condition that CAB would utilize only the minimum foreign exchange required for the purpose and shall deposit foreign exchange obtained by it by way of fee, sponsorship, advertisements, broadcasting rights, etc. through normal banking channels under intimation to the Reserve Bank of India. On September 17, 1993 on the application of CAB made on September 7, 1993, VSNL advised CAB to approach the respec- C tive Ministries and the Telecom Commission for approval (a) regarding import of earth station and transmission equipment and (b) for frequency clearance from Telecom Commission. The Satellite to be used for the transmission coverage, was also required to be specified. It was further stated that CAB should approach VSNL for uplinking signal to INTEL- D SAT at Washington. The TWI was advised to apply VSNL for necessary coordination channels, and DD phone facility covering each location. On > October 9, 1993, TWI wrote to VSNL seeking frequency clearance from the Ministry of Communications. The TWI informed VSNL that they will be covering the tournament and that they were formally applying for its permission to uplink their signal as per the list attached to the letter. They E also sought frequency clearance for the walkie- talkie. On October 13, 1993, the Ministry of Home Affairs informed the CAB that the Ministry had 'no objection' to the filming of the cricket matches at any of the places mentioned in the CAB's letter and that the 'no objection' pertains to the filming of the matches on the cricket grounds only. The Ministry also gave F its 'no objection' to the use of walkie-talkie sets in the play grounds during the matches subject to the permission to be obtained from WPC.

On October 18, 1993, the CAB addressed a letter to DD for telecast- ing matches mentioning its earlier offer of rights for telecasting and pointed out that the offer of Rs. 10 million made by DD vide its fax message dated G March 31, 1993 and on the condition the CAB sh,lUld not grant any right to Star TV was uneconomical, and considering the enormous organization- al cost, they were looking for a minimum offer of Rs. 20 million. The CAB also pointed out that the offers received by them from abroad including from TWI, wer~ much higher than Rs. 20 million and that the payment. H

· 1106 SUPREME COURT REPORTS [1995] 1 S.C.R.

A under the offers would be made in foreign exchange. The CAB also stated · that they were given to understand that DD was not interested in increasing their offer and hence they entered into a contract with TWI for telecasting the matches. However, they were still keen that DD should come forward to telecast the matches since otherwise people in India would be deprived of viewing the same. Hence they had made TWI agree to co-production with DD and they also prayed the DD for such co- production. The CAB's letter further stated that during a joint meeting the details were worked out including the supply of equipment list by the respective parties, and it was decided in principle to go for a joint production. The CAB stated that it was also agreed that DD would not claim ~xclusive right and CAB would be at liberty to sell the rights to Star TV. Thereafter CAB learnt from newspaper reports that DD had decided not to telecast the matches. Hence they had written a letter to DD dated September 15, 1993 to confirm the authenticity of such news, but they had not received any reply from DD. It was pointed that in the meanwhile they had been repeatedly approached by Star TV, Sky TV and other network to telecast matches to the Indian audience and some of them on an exclusive basis. But they had not taken a decision on their offers, since they did not want to deprive DD's viewers. It was further recorded that the CAB had also learnt recently that DD would be interested in acquiring the rights of telecast provided it was ' allowed to produce the matches directly, and the matches produced by' E TWI were made available to it live, without payment of any technical fees. After recording this, the CAB made fresh set of proposals, the gist of which was as follows :

1. TWI and Doordarshan would cover 9 (nine) matches each in the tournament independently, which are as follows: F Trans World International

November

MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [SAWANT, J.] 1107

Second Semi Final (Culcutta) A Final (Culcutta) ·

Doordarshan

2. TWI will do the coverage of these matches with their own equipment, crew and commentators. Similarly Doordarshan will also have their own crew, equipmr.nt and commentators for the matches produced by them. D

3. Doordarshan will be at liberty to us~ their own commentators for matches produced by TWI for telecast in India. Similarly, TWI may also use their own commentators if they televised matches produced by Doordarshan in other networks.

4. TWI will allow Doordarshan to pick up the Signal and telecast live within India, free of charges. Similarly, Doordarshan will allow TWI to have the signal for live/recorded/highlights telecast abroad, free of charges.

..... 5. Doordarshan will not pay access fees to CAB, but shall allow 4 F minutes advertising time per hour (i.e. 28 minutes in 7 hours}. The CAB will be at liberty to sell such time slot to the advertisers and the proceeds so received will belong to CAB.

6. Contract will be entered upon by the CAB and Doordarshan directly for the above arrangements. TWI will give a written un- G dertaking for the coverage break-up as mentioned in point 1.

7. Score Card and Graphics shall be arranged by CAB and the expenses for such production or income derived from sponsorship shall be on the account of CAB. Both TWI and Doordarshan will use such. H

1108 SUPREME COURT REPORTS [1995) 1 S.C.R.

A Score Cards and Graphics as arranged b~ CAB. .,. The CAB requested DD to communicate their final decision in the matter before October 21, 1993.

B On October 26, 1993, sent a communication to INTELSAT at Washington seeking information of uplinking timings for TV transmission asked for by CAB/TWI. On October 27, 1993 the Telecommunications Department sent a letter to the Central Board of Excise and Customs on the question of temporarily importing electronic production eqwpment A...' required for transmission of one-day matches of the tournament and C conveying 'no objection' of the Ministry of Communications to the proposal, subject to the organizers coordinating with WPC (DOT) for frequency clearance, from the "Standing Advisory Committee on Frequen- ' cy Allocation (SACFA)", for TV up-linking from different places and coordinating with VSNL, Bombay for booking TV transponders. D On October 27, 1943, DD informed CAB with reference to its renewed offer of October 18, 1993 that the terms and conditions of the offer were not acceptable to it and that they have already intimated to them that DD will not take signal from TWI - a foreign organisation. They also made .it clear that they had not agree to any joint production with TWI. E On October 29, 1993, CAB replied to DD that they were surprised at the outright rejection of the various alternative proposals they had submitted. They had pointed out that the only reason given for rejection was that DD will not take signals from TWI, which was a foreign organization. Since they had also suggested production of live matches by DD the question of F taking signal from TWI did not arise. CAB further stated that purely in deference to DD's sensitivity about taking signal, from TWI, CAB would be quite happy to allowed DD to produce its own picture of matches and DD may like to buy rights and licenses from CAB at a price which will be mutually agreed upon, and that these rights would be on non-exclusive basis on Indian Territory. On October 30, 1993, DD sent a message to CAB G stating that DD will not pay access fee. to CAB to telecast the matches. However, for DD to telecast the matches live, CAB has to pay technical charges/production fee at Rs.5 lakh per match. In that case DD. will have exclusive rights for the signal generated and the parties interested to take the signal will have to negotiate directly with the DD. On October 31, 1993 H DD sent a fax message to CAB to the same effect. ·

MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [SAWANT, J.] 1109

On November 1, 1993 VSNL deputed its engineers/staff to be at the A venues where the matches were being played to coordinate with TWI for t TV coverage. On November 2, 1993, TWI paid US $29,640 and (Pounds) 121,400 to VSNL as fees. for INTELSAT charges. On the same day, the Finance Ministry permitted the equipment of TWI to be imported on certain conditions by waiving the customs and additional duties of customs. B On November 4, 1993, CAB addressed a letter to DD referring to DD's fax message of October 31, 1993 asking for certain clarification on the offer made by DD. In this letter, CAB stated that since DD had asked for fees for production and telecast of matches, it was presumed that all revenue generated from the matches or entire time slot for advertisements, would belong to CAB and that they shall have the right to charge access fees C including other charges from parties abroad, and DD would telecast those matches for which CAB will pay ihe charges. The choice of the matches to be telecast by DD would be determined by CAB. On November 5, 1993, the DD rejected the terms. D On November 8, 1993, CAB filed a writ petition in the Calcutta High Court praying, among others, that the respondents should be directed to ) provide telecast and broadcast of all the matches and also provide all arrangements and facilities for telecasting and broadcasting of the matches by the agency appointed by the CAB, viz., TWI. Interim reliefs were also sought in the said petition. On the same day, the High Court directed the learned advocate of the Union of India to obtain instructions in the matter and in the meanwhile, passed the interim orders making it clear that they would not prevent DD from telecasting any match without affecting the existing arrangements between CAB and TWI. The writ petition was posted for further hearing on November 9, ~993 on which day, the learned F Single Judge confirmed the interim orders passed on November 8, 1993 and respondents were restrained from interfering with the frequency lines given to respondents No. 10 (TWI). On 10th November, 1993, VSNL advised INTELSAT at Washington seeking cancellation of its request for booking. On November 11, 1993, the learned Judge partly allowed the writ by directing All India Radio to broadcast matches. On November 12, 1993 G in the appeal filed by the Union of India against the aforesaid orders of the Division Bench, the High Court passed interim order to the following effect:

(a) that CAB would pay DD a sum of Rs. 5 lakh per match and H

1110 SUPREME COURT REPORTS [1995] 1 S.C.R. -- - A the revenue collected by DD on account of sponsorship will be kept in separate accou.nt.

(b) that DD would be the host broadca~ter.

(c) that Ministry of Telecommunication would consider the ques- B tion of issuing a license to TWI under the Telegraphs Act and decide the same within three days.

On November 12, 1993, the Film Facilities Officer of the MIB informed the Customs Department at New Delhi, Bombay and Calcutta airports, that as TWI had not obtained required clearances from the C Government for the coverage of the tournament, they should not be permitted to remove exposed film outside India till it was cleared by the Government. On the same day, DD asked the CAB providing various facilities at each match venue as this tvas pre-requisite for creating host broadcaster signal in India. CAB sent a reply on the same day and called .D upon the DD to telecast matches within India pursuant to the High Court's order. On the same day again the Collector of Customs, Bombay. called upon CAB to pay customs duty on the equipment as there was a breach in the terms of the exemption order. I On the same day, i.e., November 12, again the Committee of ' E Secretaries decided that the telecast of all sporting events would be within the exclusive purview of the DD/MIB. It was also decided that for the purpose of obtaining necessary clearances for telecasting different types of events for the country, a Single Window service would be followed where the concerned Administrative Ministry would be the 'Nodal' Ministry to which the application will be submitted and it would thereafter be the function of the 'Nodal' Minist}y to obtain permissions froin the concerned Ministry/Agencies. "' On 14th November, 1993, the High Court in clarification of its order of November 12, 1993 directed, among others, as follows :

(a) In case the signal is required to be generated by TWI separately, ·such necessary permission should be given by DD and/or other competent authorities.

(b) The differences with regard to the placement of Cameras etc., if H any, between cricket authority and DD should be mutually worked out, and

MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [SAWANT, J.] 1111

if this cannot be done, the dispute should be decided by the Head of the A Police in the place whether the match was being played.

(c). The equipment of TWI which had been seized by the Custo~s authority should be released upon undertaking that the same would not be used for any other purpose and B (d) The VSNL should take proper steps for uplinking, and should not take any steps to defeat the orders of the Court. The TWI should comply with all financial commitments to VSNL.

On November 15, 1993, the CAB and another filed the present Writ Petition No. 836 of 1993. On November 15, 1993, this Court passed an c order directing the Secretary, Ministry of Communications to hold meeting on the same day by 4.30 P.M. and communicate his decision by 7.30 P.M. The Customs Authorities were directed to release to equipments. On the same day at night another order was passed partly staying the orders of the Chairman, Telecommunications and Secretary, Dot. TWI was per- D mitted to generate its own signals and Customs Authorities were directed to release the goods forthwith. . .t

The DD filed Contempt Petition in the High Court on the same day against CAB and another for non-compliance with the orders of the High Court. The DD also filed the present Special Leave Petitions in this Court E on the same day.

What emerges from the above correspondence is as follows. The CAB as early as on 15th March, 1993, had offered to the DD two alterna- tives, viz., either the DD would create host broadcaster signal and under- take live telecast of all the matches in the tournament or any other party may create the host broadcaster signal and DD would purchase from the said party the rights to telecast the said signal in India. The CAB made it clear that in either case, the foreign TV rights would remain .it. The CAB also asked the DO to indicate the royalty that it will be willing to pay in either case. To that, on 18th March, 1993, the DD rejoined by asking in turn the amount of royalty that the CAB expected if the rights were given to it exclusively for India without the Star TV getting it. On 19th March, 1993, the CAB informed the DD that they would charge US$8 lakhs for giving the DD the right to create the host broadcaster signal and also for granting it exclusive right for India without the Star TV getting it. It was, however, emphasised that the CAB would reserve the right to sell/license H ·

1112 SUPREME COURT REPORTS (1995] 1 S.C.R.

A the right of broadcasting worldwide excluding India and the Star TV. The CAB also stated that the DD would be under an obligation to provide a picture and commentary subject to payment of DD's technical fees. On 31st March, 1993, the DD sent it:; bid as host broadcaster for a sum of Rs.1 ·\.-- - crore (i.e., about US $3.33 lakhs at the then exchange rate). Obviously, this was less than 50 per cent of the royalty which was demanded by the CAB. B The CAB was, therefore, justified in looking for other alternatives and that is what they did before the DD by a fax message of 4th May, 1993, reminded the CAB about DD's offer of Rs.l crore (i.e., US $3.33 lakhs). To that message, the CAB replied on 12th May, 1993 that it had decided to selVallot worldwide TV rights to only one party and, therefore, they ...._ - would like to know whether the DD would be interested in the said deal c if so, to send their offer for worldwide TV rights, latest by 17th May, 1993. To this, on 14th May, 1993, the DD by Fax, replied that it was interested only in exclusive TV rights for India alone without the Star TV getting it and that it stood by its earlier offer of Rs. 1 crore (i.e., US$3.33 lakhs). The DD went further and stated that as there was a speculation that D Pakistan might not participate in the tournament which eventuality was likely to affect viewership and commercial accruals, it will have to rethink on that bid also meaning thereby that even the offer of Rs.1 crore may be reduced.

According to the MIB, the CAB, thereafter, entered into an agree- E ment with World Production Establishment representing the interests of TWI for telecasting all the matches without obtaining clearance from the Government for telecasting, and granted TWI sole and exclusive right to sell or otherwise exploit all exhibition rights of the tournament. Under the agreement with TWI, the CAB was to receive US $ 5.50 lakhs as guaran- F teed sum and in addition, if any rights fee income was received in excess of the guaranteed sum, it was to be split in the ratio of 70:30 between the .... . parties, i.e., 70 per cent to the CAB and 30 per cent to TWI. Learning of this, the DD informed the CAB that it had decided not to telecast the matches of the tournament by paying TWI TV rights fee and that it was not prepared to enter into negotiations with TWI for the purpose. G Again on 18th. October, 1993, CAB addressed a letter to DD for telecasting the matches mentioning its earlier offer of rights for telecasting and pointed out that the offer of Rs. 1 crore made by DD on the condition that the CAB should not grant any right to Star TV was uneconomical. H CAB also pointed out that considering the enormous organisational costs ·

MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [SAWANT, J.] 1113

involved, they were looking for a minimum offer of Rs.20 million. In this A connection, they pointed out that the offers received by them from abroad including from TWI were much higher than Rs. 20 million and under those offers, the payment was also to be received in foreign.exchange. The CAB further stated in that letter that they were given to understand that DD was not interested in increasing their offer and hence they entered into a contract with TWI for telecasting the matches. Yet, they were keen that B DD should telecast the matches since otherwise people in India would be deprived of viewing the same. They had, therefore, made the TWI agree for co-production with DD. They, therefore, requested the DD to agree to such co-production. The CAB also stated in the said letter that in fact in a joint meeting, details of such arrangement were worked out including the c supply of equipment list by the respective parties and it was decided in principle to go in for joint production. In the meeting, it was further agreed that DD would not claim exclusive rights the CAB would be at liberty to sell the rights to Star TV. However, since subsequently they had learnt from newspaper reports that DD had decided not to telecast the matches, by D their letter of 15th September, 1993 they had asked DD to confirm the authenticity of the news items. The DD, however, had not responded to the said letter. In the meanwhile, many other networks had repeatedly approached them for telecasting matches to the Indian audience and some of them on exclusive basis. But they had still kept the matter pending since they did not want to deprive the viewers of the DD of the matches. They E further added that they had also learnt that DD would be interested in acquiring rights of telecast provided it was allowed to produce some matches directly and the matches produced by TWI are made available to it live without payment of any technical fee. The CAB, therefore, in the circumstances, suggested a fresh set of proposals for DD's consideration and requested response before 21st October, 1993. On 27th October, 1993, F DD responded to the said ietter in the negative and stated that the offer made was not acceptable to it and they had already communicated to that effect earlier, stating that they will not take any signal from TWI. DD further denied that they had agreed to any joint production with TWI. The CAB by its letter of 29th October, 1993 pointed out, in response to this G letter, that since they had also suggested production of live matches by DD, question of taking signals from TWI did not arise, and in deference to DD's sensitivity about taking signals from TWI, CAB would be quite happy to allowd DD to produce its own picture of matches and DD may buy rights and licences from it at a price which will be mutually agreed upon. H