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

1114 SUPREME COURT REPORTS [1995] 1 S.C.R.

A Thus, the controversy between the parties was with regard to the terms for the telecasting of the matches. It inust be noted in this connection 1 that the DD had never stated to the CAB that it had no frequency to spare for telecasting the matches. On the other hand, if the CAB .had accepted the terms of the DD, DD was ready to telecast the matches. Therefore, the argument based on resource crunch as advanced on behalf of the B MIB/DD, is meaningless in the present case.

19Copy pinpoint19. All that we have to examine the present case is whether MIB/DD had stipulated unreasonable conditions for telecasting the matches. It is apparent from the above correspondence betw~en the parties that from the above correspondence between parties that CAB wanted a minimum of U.S. $8 lakhs, i.e., Rs. 2.40 crores. However, DD insisted that it would be the host broadcaster and will have exclusive telecasting rights for India and for these rights, it will pay only Rs.1 crore. i.e., US $3.33 lakhs. It had also threatened to reduce the said offer of Rs. One crore because Pakistan was not likely to participate in the tournament. When it was pointed out by the CAB that this offer was uneconomical taking into consideration the enor- mous costs involved and the they were looking for a minimum of Rs. 2 crores and had received higher offers from other parties under which the payments will also be made in foreign exchange, DD stuck to its earlier offer and refused to raise it. In the meanwhile, the CAB received an offer of U.S. $5.50 lakhs, i.e., Rs. 1.65 crores from TWI as guaranteed sum plus a share to the extent of 70 per cent in the rights income fee. The CAB being the sole organiser of the event had every right to explore the maximum revenue possible and there was nothing wrong or improper in their negotiating with TWI the terms and conditions of the deal. However, F the only response of DD to these arrangements which were being worked >.~ I'

out between the CAB and TWI was that it would not telecast the matches of the tournament by paying TWI the fees for the CAB did not suit its doors on DD, and by its letter of 18th October, 1993 informed the DD that it was keen that DD should telecast the matches so that people in India are not deprived of viewing the matches. They also informed the DD that it was with this purpose that they had made TWI agree for co-production with the DD and had made a fresh set of proposals. However, these proposals were on materially different terms. To this, the DD replied by its letters of 27th October, 1993 that the terms and conditions of the offer were not acceptable to it. The CAB by its letter of 29th October, 1993 again offered the DD that if their only objection was to taking signals from TWI,

MIN. C>F INFORMATION AND BROADCAS!lNG v. CRICKET ASSN. OF BENGAL [SAWANT, J. J 1115

I since they had suggested production of live matches by DD in their fresh A T proposals, there was no question of taking signals from TWi and they should reconsider the proposals. To this, the only reply of the DD was that they will not pay .any Access Fee to CAB to telecast the matches and if DD were to telecast the matches, the CAB will have to pay Techni~ cal/Production Fee at the rate of Rs. 5 Iakhs per match, and in that case B the DD will have exclusive rights for the signal generated and the parties interested will have to take the signals from the DD after negotiating directly with it. In other words the DD took the stand that not only it will not pay any charges to the CA13 for the rights of telecasting the matches, but it is CAB which will have to pay the charges, and that the DD will be the sole producer of signals and others will have to buy the signals from it. c

20Copy pinpoint20. Thus the correspondence between the parties shows that each of the parties was trying to score over the other by taking advantage of its position. The blame for the collapse of the negotiations has to be shared by both. The difference, if any, was only in the degree of unreasonableness. D If anything, this episode once again emphasises the need to rescue the electronic media from th~overnment monopoly and bureaucratic control and to have an independen~uthority to manage and control it.

21Copy pinpoint21. Coming now to the change · the stand of the other Departments of the Government for granting facilit1 to the agency engaged by the E CAB, the facts make a revealing reading. The actions of the various Departments of the Government, referred to e ier, show firstly, that the Ministries of Human Resources Development,·, Qf Home Affairs, of Finance, of Communications, and the VSNL had no objection whatsoever .. to the arrangements which the CAB had entered into with TWI, the foreign agency, for covering the cricket matches. In fact, they granted all the necessary permissions and facilities to the CAB!fWI in all respects subject to certain conditions with which neither the CAB nor TWI had any quarrel. Secondly, these various Departments had accepted TWI· as the agency of CAB for the purposes of the said coverage and they had no objection to the TWI covering the matches on the ground that it was a foreign agency. This was the situation till the writ petition was filed by the CAB in the Calcutta High Court on 8th November, 1993. It is necessary to remem,ber in this connection that the decision of the DD to intimate CAB that it will not pay even access fee to the CAB to telecast the tournament and that it was for the CAB to pay the technical/production fee of Rs. 5 lakhs per H

~\ 1116 SUPREME COURT REPO~TS [1995} l S.C.R.

A match with DD having exclusive right for the signal generate, and others will have to buy it after negotiating directly with the DD, was taken· on 30th/31st October, 1993. It is in that context that further developments which are relevant for our purpose and which took place during the pendency of the Court proceedings, have to be viewed. It is only on 12th B November, 1993 that the Committee of Secretaries came out with the concept of the nodal ministry. By itself, the decision to form the nodal ministry to coordinate the activities of all the concerned ministries and departments is unexceptional. But the time of taking the decision and its background was not without its significance, However, there is no adequate material on record to establish a nexus between the MIB/DD and the C aforesaid actions of the other authorities.

The nexus in question was sought to be established by the CAB by pointing out to the letter addressed by the Deputy Secretary in MIB with the approval of the Secretary, of that Ministry to Department of Youth D Affairs and Sports of the Ministry of Human Resources Development. It in terms refers to the meeting of the Committee of Secretaries on llth November, 1993 and states that according to the so-called "extant policy" of the Government, as endorsed by the Committee of Secretaries, the ... telecasting of sporting events is within the exclusive purview of DD/MIB. Accordingly, the MIB opposes the grant of any permission to M/s. WPE E or its agency TWI or any Indian Company to cover the matches for general reception in India through uplinking facility except in collaboration with DD with only the latter being the sole agency entrusted with the task of generating TV signal from the venue of the matches. It further states that the MIB opposes (i) import of any satellite earth station for the roverage F of the series, (ii) the grant of any ad-hoc exemption for the import of equipment by WPE or TWI without their first producing the approval of the competent authority permitting its use within India, in terms of the provisions of Indian Telegraph Act, 1885 and the Wireless Telegraph Act, 1933 in the absence of which possession of such equipment within India constitutes an offence, (iii) M/s. WPE or TWI being permitted to under- G take shooting of the cricket matches at different places and grant of visa or RAS to its personnel for visiting India, an (iv) the grant of any permis- sion to any aircraft leased by M/s. WPE/TWI for landing at any interna- tional or national airport.

H It was urged that the question of the absence of permission/licence

MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [SAWANT, J.] 1117

of the requisite authorities under the Indian Telegraph Act and the Wire- A less Telegraph Act was never raised or made a ground for denial of the right to the BCCl/CAB to telecast the matches or to uplink the signal . through TWI till after CAB had approached the Calcutta High Court on 8th November, 1993. It was contended that the MIB woke up suddenly to the relevant provisions of the statute after the Court proceedings. We are, B however, not satisfied that these events conclusively establish that the other departments acted at the behest of the DD/MIB.

The circumstances in which the High Court came to pass its interim order dated 12th November, 1993 may now be noticed. The MIB and DD's appeal are directed against the said order and writ petition is filed by the C CAB for direction to respondent Nos. 1to9, which include, among others, Union of India.

In the writ petition filed by the CAB before the High Court on 8th November, 1993, the learned Single Judge on the same day passed an order D of interim injunction commanding the respondents to provide all adequate facilities and cooperation to the petitioner and/or their appointed agency for free and uninterrupted telecasting and broadcasting of the cricket matches in question to be played between 10th and 20th November, 1993, and restrained the respondents from tampering with, removing, seizing or dealing with any equipment relating to transmission, telecasting or broad- E casting of the said matches, belonging to the CAB and their appointed agency, in any manner whatsoever. On the next day, i.e, 9th November, 1993 the said interim order was made final. On the 11th November, 1993, on the application of the CAB complaining that the equipment brought by their agency, viz., TWI (respondent No. 10 to the petition) were seized by F --- the Bombay Customs authorities under the direction issued by the Ministry of Communications and the MIB, another order was passed by the learned Judge directing all Government authorities including Customs authorities to act in terms of the interim orders passed earlier on 8th/9th November,

1993. While passing this order in the presence of the learned counsel for the respondents who pleaded ignorance about the seizure of the equipment G by the Customs authorities, the learned Single Judge observed, among other things, as follows :

"It is submitted by the learned Counsel on behalf of the respon- dent that since, Doordarshan has been denied telecasting of the H

1118 SUPREME COURT REPORTS [1995] 1 S,C.R.

A tournament by the respondent No. 5, Akashbani has also decided to stop broadcasting and in support of his contention has produci::d a letter dated 10th of November, 1993 issued by the Station Director, Calcutta, for Director General, All India Radio to Shri S.K. Kundu, Ce1;1tral Government's Advocate whereupon it ap- pears that it was admitted, that All India Radio had planned· to B provide running commentary of the matches of the above tourna- ment organised by the Cricket Association of Bengal, but as Doordarshan was denied the facility of nominating the Host Broadcaster's Signal and it consequently decided not to cover those matches, All India Radio also had decided to drop the c coverage of those matches since the principles on which Doordar- shan based its decision, viz., the protection of inherent interest of the National Broadcasters to generate the signal of sports, applied equally to the All India Radio.

I fail to understand the logic behind the said letter and the D stand taken by the All India Radio in the matter which appears to me wholly illogical and ridiculous; Doordarshan might have some ... dispute with the ...... regarding the right to be the Host Broad- casters Signal including financial questions, but the All India Radio, which itself volunteered to broadcast the matches them- E selves, and when, adiriittedly, no financial transaction is involved between the All India Radio and the respondent No. 6, denial of the All India Radio to broadcast the said matches only on the ground that since Doordarshan was denied by the respondent No. 6 to be the Host Broadcaster's Signal, the All India Radio stopped broadcasting the matches following the same principle, appears to be absolutely whimsical and capricious.

X.XXXXXXXX

Such denial by the All India Radio certainly is an act done against the public interest and thus cannot be supported and/or upheld to deprive the general people of India of such small ·satisfaction....... .

xxxxxxxxx

H Accordingly, I find the action of the All India Radio in stopping

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

the broadcasting of aforesaid tournament is wholly illegal, arbitrary A and ma/a fide ... .'.. 1119

This writ application accordingly succeeds and allowed to the extent as stated above, and let a writ in the nature of mandamus to the extent indicated above. be issued." B The Union of India preferred an appeal against the said decision and in the appeal moved an application for staying the operation of the orders passed by the learned Single Judge on 8th/9th November, 1993. Dealing with the said application, the Division Bench in its order dated 12th November, 1993 observed, among other things, as follows: C "Mr. R.N. Das, learned Counsel appearing for and on behalf of the Union of India and ·others including the Director General of Doordarshan, appearing with Mr. B. Bhattacharya and Mr .. Prodosh Mallick submitted inter a/ia, that the Doordarshan authority is very much inclined and keen to telecast the Hero Cup D matches in which several parties from aboard are participating including India. But it was pointed out that the difficulties have been created by Cricket Association of Bengal in entering into an agreement with Trans World International (UK) Inc. World Production the respondent No. 10 of the writ petition wherein the E Cricket Association of Bengal has. given exclusive rights to telecast to that authority. It was submitted by Mr. Das that under Section 4 of the Indian Telegraph Act, 1885 the Central Government have the exclusive privilege of establishing, maintaining and working _,, telegraph and that it was further submitted that the expression telegraph includes telecasts through Doordarshan. It was further F provided that proviso to Section 4 (1) of the said Act provides 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 an~ part of India. Relying upon the provisions it was submitted that neither the CAB G nor the TWI respondent No. 10 of the writ application have obtained any licence for the purpose of telecasting the matches direct from India." .- The Court then referred to the correspondence between the CAB and the DD between 31st March, 1993 and 31st October, 1993 and the H

\ . 1120 SUPREME COURT REPORTS [1995] 1 S.C.R .

A letters of no objection issued to the CAB by the Ministry of Communica- tions and the VSNL and to the acceptance by the VSNL of the payments from TWI as per the demand of the VSNL itself for granting facilities of uplinking the signal and recorded its prima facie finding that the.DD was agreeable to telecast matches live_ for India on a consideration of Rs. 5 - B lakhs per match which was accepted under protest and without prejudice by the CAB and the only dispute was with regard to the revenue to be earned through advertisements during the period of the matches. The Court said that it was not adjudicating on as to what and in what manner the revenue through advertisements would be created and distributed between the parties. It left the said points to be decided on merits in the C appeal pending before it and proceeding to observe as follows :

"..... but at present having regard to the interest of millions of Indian viewers who are anxiously expecting to see such _live telecast, -we record as Doordarshan is inclined to telecast the matches for the D Indian viewers on receipt of Rs. 5 lakh per match and to enjoy the exclusive right of signalling within the country being host broad- caster, we direct the CAB to pay immediately a sum of Rs. 5 lakhs per match for this purpose and the collection of revenue on account of sponsorship or otherwise in respect of 28 minutes which is available for commer:cial purposes be realised by the Doordar- E shan on condition that such amount shall be kept in a separate account- and shall not deal with and dispose of the said amount until further orders and we make it clear regarding the entitlement and the manner in which the said sum will be treated would, abide by the result of the appeal or the writ application. Accordingly, it F is made clear that Doordarshan shall on these conditions start immediately telecasting the live matches of the Hero Cup for the subsequent matches from the next match in India. Mr. Das Ld. Counsel appearing on behalf of the appellant submits that they

G were in a position technically or otherwise to telecast immediately. With regard to the right of TWI to telecast the matches outside India is concerne~, we also record that on time of heariJlg the - counsel appearing on behalf of the appellant showed an order in three lines that the authority concerned has summarily and without giving any reason and/or any hearing whatsoever directed to VSNL not to allow the TWI to transmit or to telecast from India in respect of the Hero Cup matches but it was submitted by the learned

I MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL (SAWANT, J.] 1121 '" Counsel appearing for the appellant that they are very much keen to consider the matter in proper perspective in accordance. with + laws, having regard to the national impact on this question. It appears that on the basis of the representation made by VSNL, .- ' TWI came into the picture anc subsequently TWI entered into an agreement with the CAB. At this stage, we are not called upon to decide the validity or otherwise of such an agreement entered into by the parties. As a matter of fact, we are referring this without prejudice to the rights and contentions of the parties. It further appears that the Government of India through the Department of Communication stated that the said department had no objection with regard to the permission to the CAB for temporarily import- c ing electronic product equipments required for transmitting one day matches of the Hero Cup as a part of Diamond Jubilee Celebration to be started from November 7 to 27, 1993, the Ministry has no objection to proposal "subject to the organisers Co-ordinating with WPC (DOT) for frequency clearance from the D Standing Advisory Committee on frequency allocation (SACFA) for TV uplinking from different places and coordinating with ... VSNL, Bombay for booking of TV transponders etc. It appears that the said no objection certificate has created a legitimate expectation, particularly in view of the fact that the money demanded by VSNL in this behalf was duly paid by TWI and· all arrangements have been made by TWI for performing the job. As we find that no formal permission is required under proviso to section 4(1) of Indian Telegraph Act is there is favour of the party, having regard to the facts s~ated above and having regard to National and International impact on this question and having regard to the fact that any decision taken will have the tremendous impact on the International sports, we direct the appellant No. 5 who is respondent No. 6 in the writ application. The Secretary, Ministry of Telecommunication, Sanchar Bhavan, New Delhi, Government of India to consider the facts and circumstances of the case clearly suggesting that there had already been an implied grant of permission, shall grant a provisional permission or licence without prejudice to the rights and contentions of the parties in ~ this appeal and the writ application and subject to the condition that the respondent No. 6 in the writ application will be at liberty H

I MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL (SAWANT, J.) 1123

Bombay. The Bench observed that the Court was given to under.stand that none of the parties was inclined to go higher up against its earlier order and that what was required was certain clarification of that order in the changed circumstances. The learned counsel for the CAB stated that .they were not going to oppose the DD placing their cameras but the dispute had arisen as to the signalling to be made for the telecast. According to the learned counsel for the Union of the India, there could be only one signalling from the field and DD should be treated as host broadcaster and the TWi should take signal from it. This was opposed by the learned counsel for the CAB who contended that DD had been given exclusive right as host broadcaster so far as the telecasting of matches in India was concerned. The telecastmg of matches abroad was to be done by TWI. The c Division Bench held that the DD will have the exclusive right of signalling for the purposes of telecasting within the country, and they were ~o be treated as host broadcasters so far as telecasting within India was con- cerned. As far as TWI is concerned, if it was authorised and permitted in terms of their earlier order, it would be entitled to telecast outside the D Country and to send their signal accordingly. They also stated that in case the signalling was required to be made by the TWI separately the necessary permission should be given by the DD or other competent authorities. They resolved the dispute with regard to the placement of cameras by directing . that DD will have first priority and if there was any disp~te on that account it would be resolved by the local head of the Police Administration at the E venue concerned. They also directe~ the Customs authorities, Bombay to release the equipments imported for the purposes of TWI with the condi- tion that the said equipment will be used only for transmission of the matches and' they shall not deat with or dispose of the said equipments or remove it outside the country without the permission of the Court. In F particular, they also directed the VSNL to take proper steps for uplinking and not to ta~e any step to defeat the purpose.

Against the said order of the Division Bench, the present appeals are preferred by the Ministry of Information and Broadcasting and others whereas the writ petition is filed by the CAB for restraining the respon- G dents, (which include, among others, Union of India (No.1), Secretary, Ministry of Information & Broadcasting (No. 2), Director General, Door- darshan (No.3), Secretary, Ministry of Communications (No. 5), Director, Department of Telecommunications (No.6), and Videsh Sanchar Nigam Limited (No. 9), from preventing, obstructing and interfering with or H

1124 SUPREME COURT REPORTS [1995] 1 S.C.R.

A creating any hurdles in the implementation of agreement dated 14.6.1993 between the petitioner-CAB and respondent No.10, i.e., TWI.

The matter was heard _by this Court 0n 15th November, 1993. It appears from the record that although the High Court had directed the Secretary, Ministry of Communications to decide the question of granting B licence under section 4(1) of the Telegraph Act within 3 days from 12th November, 1993 by its order of the same day, the Secretary had fixed the meeting for consideration of the application only on the 16th November,

1993. That itself was a breach of the High Court Court's order. This Court, therefore, directed the Secretary to hear the matter at 4.30 p.m. on 15th C November, 1993 and communicate its decision to TWI or its counsel or to the CAB or its counsel immediately thereafter but before 7.30 p.m. on the same day. This Court also directed U1e Customs authorities to release the equipment forthwith which they had not done in spite of the High Court's order. The TWI and CAB were, however, restrained from using the said equipment till the licence was issued by the Secretary, Department of D Telecommunication. Pursuant to the direction given by this Court, the Secretary by his order of 15th November, 1993 after referring to the judgment of the High Court and its implication and after taking into consideration the arguments E of the respective parties, held as follows :

"In this connection, we have to take into account an important point brought to our notice by the Director General Doordarshan. It is true that Section 4 of the Indian Telegraph Act of 1885 enables the government to give licences to agencies others than Doordar- F shan or the government departments to telecast. In fact, such a permission had been given in January 1993 when the cricket matches were telecast by the same TWI. However, subsequently, I am given to understand that the government policy in the Ministry of I&B has been that the uplinking directly by private par- ties/foreign agencies from India for the purpose of broadcasting should not be permitted.

It is true that in a cricket match we are not considering security aspects. But, the point to be considered is whether uplinking given in a particular case will have its consequences on other such claims which may not be directly linked to sports and which will have

I I MIN. OF INFORMATJl)N AND BROADCASTING v. CRICKET ASSN. OF BENGAL [SAWANT, J.J 1125

serious implications. Within the government, as per Allocation of f ~ Business Rules, it is the Ministry of I&B which has the respon- sibility for formulation and implementation of the policies relating to broadcasting/telecasting.

As was made clear earlier, in this case, we are considering two aspects. One is the generation of signals and the second is their communication. The Department of Telecommunication comes in the picture so far as the communication aspect is concerned.

Taking into account the facts mentioned above, the only reasonable conclusion. I reach is that permission may be gi.ven to TWl for telecast overseas through the VSNL, while Doordarshan will be telecasting within the country. The TWI will have to get the signals from Doordarshan for uplinking through the VSNL by making mutual a"angements. So far as VSNL is concerned, there should be no difficulty in transmitting the signals through Intelsat as already agreed upon. D. In my view, the above decision takes into account the needs of the millions of viewers both within the country and abroad who are keen to watch the game and at the same time ensures that there is no conflict with the broad government policy in the Ministry of E I&B which is entrusted with the task of broadcasting. It also takes into account the overall aspects and the reasonable expectation created within the TWI by the series of clearances given by the different authorities of the Government of India."

This order which was passed around 7.30 p.m. was challenged by the F CAB, and being an urgent matter, was heard by the Court late at night on the same day. The Court stayed the order of the Secretary to the extent that it imposed a condition that the TWI will have to get the signals from the DD for uplinking through the VSNL by making mutual arrangements. The Court directed that the TWI can generate its own signal by focussing G its cameras only on the ground where the matches were being played, as directed by the Ministry of Home Affairs and that they will take care not to focus their cameras anywhere else.

For telecasting the triangular series and the West Indies tour to India in 1994 season, the same disputes arose between the parties. By their letter· H

1126 SUPREME COURT REPORTS [1995] 1 S.C.R.

A of 25th August, 1994, the BCCI requested the Director, Sports, of the Ministry of Human Resources Development, Department of Youth Affairs and Sports to grant permission to it or TWI/ESPN to telecast the triangular series and matohes to be played between India and West Indies. By their letter of 30th August, 1994 written to the Secretary, Department of Sports, B the MIB dpposed the grant of uplinking facilities to any foreign agency. On 14th September, 1994, Ishan Television India Ltd. [with a tie-up with ESPN which had contract with BCCI], applied to the VSNL for uplinking facilities for telecasting of the said matches. The VSNL thereafter wrote to the MIB for their "no objection" and the MIB opposed the grant. of "no C objection" certificate and objected to VSNL writing to the MIB directly for the purpose. The MIB also stated that their view in the matter was very clear that satellite uplinking from Indian soil would be within the exclusive competence of the MIB/DOT/DOS and the telecast of sporting events would be the exclusive privilege of DD. By their letter of 26th September, 1994, the 'nodal' Ministry, i.e., Ministry of Human Resources Development D (Department of Youth Affairs and Sports) addressed to all the Ministries and Departments including the MIB called for the remarks on the letter of the BCCI addressed to the nodal Ministry. The MIB again wrote to the Sports Department of the nodal Ministry, opposing grant of Single Window service to the BCCI. On 3rd October, 1994, the VSNL returned the E advance which it had received from Ishan TV for uplinking facilities. On 7th October, 1994, this Court passed the following order :

"Pending the final disposal of the matters by this interim order confined to telecast the International Cricket Matches to be played in India from October 1994 to December 1994, we direct respon- F dent Nos. 1and6 to 9 in Writ Petition No. 836/93 to grant forthwith necessary permission/sanctions and uplinking facilities for produc- tion, transmission and telecasting of the said matches.

We also direct respondent Nos. 2, 3 and 4 in writ petition No. G 836/93 and all other Government Agencies not to obstruct/restrict in any manner whatsoever production, transmission and telecasting of the said matches for the said period by the petitioner applicant only on the ground where the Cricket Matches would be played and the signals are generated under the direct supervision of the H VSNL personnel.

I MIN. OF INFORMATION ANIJ BROADCASI1NG v. CRICKET ASSN. OF BENGAL [SAWANT,J.] 1127

So far as the production, transmission and telecasting of these matches in India is concerned, the Doordarshan shall have the exclusive right in all respects for the purpose, and the petitioner applicant shall not prevent Doordarshan from doing so, and in particular shall afford all facilities for Doordarshan to do so.

So far as the placement of cameras are concerned both petitioner-applicant as well as Doord~rshan shall have equal rights. ·This shall be ensured by Shri Sunil Gavaskar in consultation with such technical experts as he may deem necessary to consult. He is requested to do so. As far as the remuneration for Shri Sunil Gavaskar and the technical expert is concerned, both Doordarshan C as well as the petitioner-applicant will share the remuneration equally which will be fixed by this Court.

As regards the revenue generated by the advertisement by Doordarshan is concerned, Doordarshan will deposit the said amount in a separate account and preferably in a nationalised D Bank. The Doordarshan will have the exclusive right to advertise- ment. All the IAs are disposed of accordingly".

Since certain disputes arose between the parties, on 18th October, 1994 this Court had to pass the following order : · E "The BCCI will ensure tl1.at all Cricket Associations and staging Centres shall extend every facility to the personnel authorised by the Doordarshan to enter into the Cricket Ground for production, transmission and telecasting of the matches without any late or hindrance. F

The BCCI will also ensure that all Cricket Associations staging the matches will make available every facility and render such assistance as may be necessary and sought by the Doordarshan for effective telecasting of the matches at the respective grounds and G stadia.

The BCCI shall not permit the ESPN to enter into any contract either with A.T.N. or any. other Agency for telecasting in any manner all over India, whether through the Satellite footprmts or otherwise, Cricket Matches which are being telecast in India by H

1128 SUPREME COURT REPORTS [1995]' l S.C.R.

A the Doordarshan. If the ESPN has entered into any such contract either with A.T.N. or any other Agency, that contract should be cancelled forthwith.

Since this Court is seized of the present matter, no court should entertain any writ petition, suit or application which is connected in any manner with the discharge of obligation imposed on the respective parties to the present proceedings. If any such writ petition, suit or application is already entertained, the Courts should not proceed with the same till further orders of this Court.

C The BCCI and the Doordarshan will mutually solve the prob- lem of the Control Room and Storage Room facilities needed by the Doordarshan, preferably in one meeting in Bombay on 20th October, 1994".

22Copy pinpoint22. The law on the subject discussed earlier makes it clear that the fundamental right to freedom of speech and expression includes the right to communicate effectively and to as large a population not only in this )

country but also abroad, as is feasible. There are no geographical barriers on communication. Hence every citizen has a right to use the best means available for the purpose. At present, electronic media, viz., T.V. and radio, is the most effective means of communication. The restrictions which the electronic media suffers in addition to those suffered by the print media, are that (i) the airwaves are a public property and they have to be used for the benefit of the society at large, (ii) the frequencies are limited and (iii) media is subject to pre-censorship. The other limit~tion, viz., the reasonable restrictions imposed by law made for the purposes mentioned in Article 19(2) is common to all the media. In the present case, it was not and cannot be the case of the Mm that the telecasting of the cricket matches was not for the benefit of the society at large or not in the public- iilterest and, therefore, not a proper use of the public property. It was not the case of the MIB that it was in violation of the provisions of Article G 19(2). There was nothing to be pre-censored on the grounds mentioned in Article 19(2). AS regards the limitation of resources, since the DD was .prepared to telecast the cricket matches, but only on its terms it could not plead that there was no frequency available for telecasting. The DD could also not have ignored the rights of' the viewer~ which the High Court was H at. pains to emphasise while passing its orders and to which we have also

I MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL (SAWANT, J.] 1129

made a reference. The CABJBCCI being the organisers of the event had a A right to sell the telecasting rights of its event to any agency. Assuming that + the DD had no frequency to spare for telecasting the matches, the CAB could certainly enter into. a contract with any agency including a foreign agency to telecast the said matches through that agency's frequency for the viewers in this country (who could have access to those frequencies) as well B as for the viewers abroad. The orders passed by the High Court in effect gave a right to DD to be the host broadcaster for telecasting in this country and for the TWI, for telecasting for the viewers outside this country as well as those viewers in this country who have an access to the TWI frequency. The order was eminently in the interests of the viewers whatever its merits on the other aspects of the matter. C

23Copy pinpoint23. The orders passed by the High Court have to be viewed against the backdrop of the events and the position of law discussed above. The circumstances in which the High Court passed orders and the factual and legal considerations which weighed with it in passing them speak for themselves. However, Since the cricket matches have already been telecast, D the question of the legality or otherwise of the orders has become academic and it is not necessary to pronounce our formal verdict on the s~me. Hence we refrain from doing so.

24Copy pinpoint24. We therefore, hold as follows: E (i) The airwaves or frequencies are a public property. Their use has to be controlled and regulated by a public authority in the interests of the public and to prevent the invasion of their rights. Since the electronic media involves the use of the airwaves, this factor creates an in-built restriction on its use as in the case of any ot~er public property. F (ii) The right to impart and receive information is a species of the right of freedom of speech and expression guaranteed by Article 19(1) (a) of the Constitution. A citizen has a fundamental right to use the best means of imparting and receiving information and as such to have an access to G telecasting for the purpose. However, this right to have an access to telecasting has limitations on account of the use of the public properfy, viz., the airwaves involved in the exercise of the right and can be controlled and regulated by the public authority. This limitation imposed by the nature of the public property involved in the use of.the electronic media is in addition to the restrictions imposed on the right to freedom of speech and expres;. H

1130 SUPREME COURT REPORTS (1995] 1 S.C.R.

A sion under Article 19(2) of the Constftution. (iii) The Central Government shall take immediate steps to establish an independent autonomous public authority rep~esentative of all sections and interest in the society to control and regulate the use of the airwaves.

B (iv) Since the matches have been telecast pursuant to the impugned order of the High Court, it is not necessary to decide the correctness of the said order.

(v) The High Court will not apportion between the CAB and the DD · the revenues generated by the advertisement.on T.V. during the telecasting C of both the series of the cricket rilatches, viz., the Hero Cup, and the International Cricket Matches played in India from October to December 1994, after hearing the parties on the subject.

25Copy pinpoint25. The civil appeals are disposed of accordingly. D In view of the disposal of the civil appeals, the writ petition filed by the Cricket Association of Bengal also stands disposed of accordingly.

B.P. JEEVAN REDDY, J. Leave granted in Special Leave Petitions.

E While I agree broadly with the conclusions arrived at by my learned brother Sawant, J. in para 24 of his Judgment, I propose to record my views and conclusions on the issues arising in these matters in view of their far-reaching importance.

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

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

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

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

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

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

FACTUAL CONSPECTUS:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1144. ' ' . SUPREMECOURTREPORTS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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