The airwaves are the people's property
The Supreme Court ruling of 1995
The following is the text of the operative part of the Supreme Court judgement delivered by Justice P.B. Sawant and Justice S. Mohan on Feb 9, 1995 in the case between the Union of India & Cricket Association of Bengal. The issue before the court, specifically, was if the CAB as well as the Board of Control for Cricket in India (the BCCI) could claim a right to broadcast sporting events that they organized and conducted through an agency of their own choosing. The three justices (there was one dissenting view) deliberated on whether such a right was conferred upon the citizenry in Article 19 of the Constitution, which guarantees the right to free speech, and in the following majority opinion, opined that whereas the government has a regulatory role to play in broadcast media, the right of broadcasting itself rests not with the government but with the people themselves. The judgement:
(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 other public property.
(ii) The right to impart and receive information is a species of the right to 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 telecasting for the purpose. However, this right to have an access to telecasting has limitations on account of the use of the public property, 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 restriction imposed on the right to freedom of speech and expression under Article 19 (2) of the Constitution.
Editor's Note: In essence, the court affirmed that the people have a right to their own broadcasting medium, that they could choose the content, they could hire their own agents and equipment, and they could broadcast these without restriction, except as noted in Article 19(2), which relates to public safety, security, etc. This judgement is an important milestone, as it permits individual citizens to set up their own broadcasting media organizations and operate freely. The Central Government has been slow to set up the regulatory framework, and many people have argued that this is an attempt to subvert the Court's ruling. As broadcast stations begin to operate across the country (the first FM station came on last month) further details of individual citizens' rights will no doubt be argued in the courts.
The minority judgement from Justice Reddy is also presented here. Readers please note that notwithstanding the substantive arguments laid out here the majority of the justices rejected this reasoning. The minority judgement, from Justice B.P. Jeevan Reddy
(a) Game of Cricket, like any other sports event, provides entertainment. Providing entertainment is implied in freedom of speech and expression guaranteed by Article 19(1) (a) of the Constitution subject to this rider that where speech and conduct are joined in a single course of action, the free speech values must be balanced against competing societal interests. The petitioners (CAB and BCCI) therefore have a right to organise cricket matches in India, whether with or without the participation of foreign teams. But what they are now seeking is a license to telecast their matches through an agency of their choice- a foreign agency in both the cases - and through telecasting equipment brought in by such foreign agency from out side the country. In the case of Hero Cup Matches, organised by BCCI, they did not ask for this facility for the reason that their foreign agent has arranged direct uplinking with the Russian satellite Gorizon . In both cases, they wanted the permission to import the telecasting equipment along with the personnel to operate it by moving it to places all over the country wherever the matches were to be played. They claimed this license, or permission, as it may be called, as a matter of right said to be flowing from Article 19 (1) (a) of the Constitution. They say that the authorities are bound to grant such license/permission, without any conditions, all that they are entitled to do, it is submitted, is to collect technical fees wherever their services are availed, like the services of VSNL in the case of Hero Cup Matches. This pleas is in principle no different freedom to right to establish and operate private telecasting stations. In principle, there is no difference between a permanent TV station and a temporary one; similarly there is no distinction in principle between a stationery TV facility and a mobile one; so also is there no distinction in principle between a regular TV facility and a TV facility for a given event or series of events. If the right claimed by the petitioners (CAB and BCCI) is held to be constitutionally sanctioned one, then each and every citizen of this country must also be entitled to claim similar right in respect of his event or events, as the case may be. I am of the opinion that no such right flows from Article 19 (1) (a).
(b) Airwaves constitute public property and must be utilized for advancing public good. No individual has a right to utilize them at his choice and pleasure and for purposes of his choice including profit. The right of free speech guaranteed by Article 19 (1) (a) does not include the right to use airwaves, which are public property. The airwaves can be used by a citizen for the purpose of broadcasting only when allowed to do so by a statute and in accordance with such statute.
Airwaves, being public property, it is the duty of the State to see that airwaves are so utilised as to advance the free speech right of the citizens which is served by ensuring plurality and diversity of views, opinions and ideas. This is imperative in every democracy where freedom of speech is assured. The free speech right guaranteed to every citizen of this country does not encompass the right to use these airwaves at his choosing. Conceding, such a right would be detrimental to the free speech rights of the body of citizens in as much as only the privileged few powerful economic, commercial and political interests- would come to dominate the media. By manipulating the news, views and information, by indulging in misinformation and disinformation, to suit their commercial or other interests, they would be harming - and not serving - the principle of plurality and diversity of views, news, ideas and opinions. This has been the experience of Italy, where a limited right, i.e. at the local level but not at the national level was recognised. It is also not possible to imply or infer a right from the guarantee of free speech which only a few can enjoy.
(c) Broadcasting media is inherently different from Press or other means of communication/information. The analogy of Press is misleading and inappropriate. This is also the view expressed by several Constitutional Codes including that of the United tates of America.
(d) I must clarify what I say, it is that the right claimed by the petitioners (CAB and BCCI) - which in effect is no different in principle from a right to establish and operate a private TV station - does not flow from Article 19 (1) (a); that such a right is not implicit in it. The question whether such right should be given to the citizens of this country is a matter of policy for the Parliament. Having regard to the revolution in information technology and the developments all around, Parliament may, or may not, decide to confer such right. If it wishes to confer such a right, it can only be by way of an Act made by Parliament. The Act made should be consistent with the right of free speech of the citizens and must have to contain strict programme and other controls, as has been provided, for example in the Broadcasting Act, 1991 in the United Kingdom. This is the implicit command of Article 19 (1) (a) and is essential to preserve and promote plurality and diversity of views, news, opinions and idea.
(e) There is an inseparable inter-connection between freedom of speech and the stability of the society, i. e. stability of a nation-State. They contribute to each other. Ours is a nascent republic. We are yet to achieve the goal of a stable society. This country cannot also affort to read into Article 19 (1) (a) an unrestricted right to licensing (right of broadcasting) as claimed by the petitioners therein.
(f) In the case before us, both the petitioners have sold their right to telecast the matches to a foreign agency. They have parted with the right. The right to telecast the matches, including the right to import, install and operate the requisite equipment, is thus really sought by the foreign agencies and not by the petitioners. Hence, the question of violation of their right under Article 19 (1) (a) resulting from refusal of license/ permission to such foreign agencies does not arise.
The Government monopoly of broadcasting media in this country is the result of historical and other factors. This is true of every other country, to start with. That India was not a free country till 1947 and its citizens did not have constitutionally guaranteed fundamental freedom till 1950 coupled with the fact that our Constitution is just about forty five years into operation explains the Government monopoly. As pointed out in the body of the judgement, broadcasting media was a monopoly of the Government, to start with in every country except the United States where a conscious decision was taken at the very beginning not to have State monopoly over the medium. Until recently, the broadcasting media has been in the hands of public/statutory corporations in most of the West European countries. Private broadcasting is comparatively a recent phenomenon. The experience in Italy of allowing private broadcasting at local level (while prohibiting it at national level) has left much to be desired. It has given rise to powerful media empires which development is certainly not conducive to free speech right of the citizens.
(a) It has been held by this Court - and rightly - that broadcasting media is affected by the free speech right of the citizens guaranteed by Article 19 (1) (a). This is also the view expressed by all the Constitutional Courts whose opinions have been referred to in the body of the judgement. Once this is so, monopoly of this medium (broadcasting media), whether by Government or by an individual, body or organisation is unacceptable. Clause (2) of Article 19 does not permit a monopoly in the matter of freedom of speech and expression as is permitted by Clause (6) of Article 19 vis-à-vis the right guaranteed by Aarticle 19 (1) (a).
(b) The right of free speech and expression includes the right to receive and impart information. For ensuring the free speech right of the citizens of this country, it is necessary that the citizens have the benefit of plurality of views and a range of opinions on all public issues. A successful democracy posits an "aware" citizenry. Diversity of opinions, views, ideas and ideologies is essential to enable the citizens to arrive at informed judgement on all issues touching them. This cannot be provided by a medium controlled by a monopoly - whether the monopoly is of the State or any other individual, group or organisation. As a matter of fact, private broadcasting stations may perhaps be more prejudicial to free speech right of the citizens than the government controlled media, as explained in the body of the judgement. The broadcasting media should be under the control of the public as distinct from Government. This is the command implicit in Article 19 (1) (a). It should be operated by a public statutory corporation or corporations, as the case may be, whose constitution and composition must be such as to ensure its/ their impartiality in political, economic and social matters and on all other public issues. It/they must be required by law to present news, views and opinions in a balanced way ensuring pluralism and diversity of opinions and views. It/they must provide equal access to all the citizens and groups to avail of the medium.
The Indian Telegraph Act, 1885 is totally inadequate to govern an important medium like the radio and television, i.e., broadcasting media. The Act was intended for an altogether different purpose when it was enacted. This is the result of the law in this country not keeping pace with the technological advances in the field of information and communications. while all the leading democratic countries have enacted laws specifically governing the broadcasting media, the law in this country has stood still, rooted in the Telegraph Act of 1885. Except Section 4 (1) and the definition of telegraph, no other provision of the Act is shown to have any relevance to broadcasting media. It is, therefore, imperative that the Parliament makes a law placing the broadcasting media in the hands of a public/statutory corporate or the corporations, as the case may be. This is necessary to safeguard the interests of public and the interests of law as also to avoid uncertainty, confusion and consequent litigation.
The CAB did not ever apply for a license under the first proviso to Section 4 of the Telegraph Act nor did its agents-ever make such an application. The permissions, clearances or exemption obtained by it from the several departments ( mentioned in judgement) are no substitute for a licence under Section 4(1) proviso. In the absence of such a license, the CAB had no right in law to have its mat ches telecast by an agency of its choice. The legality or validity of the orders passed by Shri N. Vithal, Secretary to the Government of India, Telecommunications Department, need not be gone into since it has become academic. In the facts and circumstances of the case, the charge of malafides or of arbitrary and authoritarian conduct attributed to Doordarshan and Ministry of Information and Broadcasting is not acceptable. No opinion need be expressed on the allegations made in the Interlocutory Application filed by BCCI in these matters. Its intervention was confined to legal questions only.
Now the question arises, what is the position till the Central Government or the Parliament take steps as contemplated in para (4) of the summary, i.e., if any sporting event or other event is to be telecast from the Indian soil? The obvious answer flowing from the judgement ( and Paras (1) and (4) of this summary ) is that the organiser of such event has to approach the nodal Ministry as specified in the decision of the Meeting of the Committee of Secretaries held on November 12, 1993. I have no reason to doubt that such a request would be considered by the nodal Ministry and the AIR and Doordarshan on its merits, keeping in view the public interest. In case of any difference of opinion or dispute regarding the monetary terms on which such telecast is to be made, matter can always be referred to an Arbitrator or a panel of Arbitrators. In case, the nodal Ministry or the AIR or Doordarshan find such broadcast/telecast not feasible, then they may consider the grant of permission to the organizers to engage an agency of their own for the purpose. Of course, it would be equally open to the nodal Ministry (Government of India) to permit such foreign agency in addition to AIR/Doordarshan, if they are of the opinion that such a course is called for in the circumstances.
For the above reasons, the appeals, writ petition and applications are disposed of in the above terms. No costs.
Note:India Together acknowledges the
assistance of Dr.Vinod Pavarala, Reader in Communication, University of
Hyderabad in obtaining the transcribed portions of this judgment.