Fundamental rights and frequencies: Right to broadcast

Chintan Nirala, 4th Year, B.A., LL.B(HONS.), Faculty of Law, Allahabad University

Frequencies or Signals are an indispensable requirement for Communication, Media, Entertainment, or Technology. In other words, it is sine qua non for CMET. They may be unsuccessful in serving their purpose without the involvement of frequencies. It is the part of technology through which Entertainment, Media or Communication executes their whole process. With emerging audio-visual telecommunication and social media involving frequencies so as to broadcast, this case came before the court as to decide on the question of the right to broadcast bearing serious questions regarding the fate of future policies to be adopted in India.

Game of cricket has been a great source for entertainment in India. With growth of technology, the broadcast of matches shifted from audio to audio-visual telecommunications involving frequencies for live telecast, the question as to freedom of broadcasting became inevitable.It was already established that providing entertainment is implied in freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution along with the right to acquire information and to disseminate it, the question regarding nature of the property with respect to airwaves needed to be answered. And if there was a right then what should be the regulatory framework with regard to the exercise of such right. Court also analyzed the claim of monopoly of the Government and its agencies over the field of telecast and broadcast in India. Its decision did not only answer these questions but also decided the future course of Communication, Media, Entertainment, and Technology in India.

During 1990’s, with India going into transitional stage with the technological boom in the country The Secretary, Ministry of Information and Broadcasting v Cricket Association of Bengal (CAB) with Cricket Association of Bengal and others v Union Of India and others (([1995]2 SCC 161: AIR 1995 SC 1236. Justice Sawant wrote the principal opinion in Cricket Association. He spoke for himself and Justice Mohan. Justice B.P. Jeevan Reddy wrote a separate, but concurring opinion.))gave a landmark judgement regarding the telecasting and broadcasting vis-a-vis airwaves or frequencies.

In this particular case, Cricket Association of Bengal ((Hereinafter CAB))hosted a six nation international cricket tournament in November 1993 under the name and style of ‘Hero Cup Tournament’. CAB agreed to Doordarshan creating the host broadcaster Signal and also granting exclusive rights for India without the Satellite Television Asia Region ((Hereinafter Star TV))getting it, subject to the payment of eight hundred thousand U.S. dollars. But on the other hand, Doordarshan offered to pay the sum of one crore only. Consequently, CAB changed its stance and decided to sell the worldwide television rights to Trans World International ((Hereinafter TWI.)), a foreign television company. However, with regard to the interest of the viewers in India, CAB made TWI agreed on the proposition of making co-production with Doordarshan. Doordarshan informed CAB that the proposal was unacceptable as it was not willing to take signals from TWI, a foreign company. In the absence of any agreement between CAB and Doordarshan, the Department of Telecommunication addressed a letter to Videsh Sanchar Nigam Limited ((Hereinafter VSNL.))that up-linking facility for telecasting by TWI should not be provided. Aggrieved by the developments CAB approached Calcutta High Court, by way of writ petition, praying that direction be given to provide telecasting and broadcasting facility of all the matches by agency appointed by CAB. An interim order of injunction restraining the respondents from preventing telecast was granted. 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. As a matter of fact, the Secretary was directed to grant the license in so many words thus leaving no discretion in him to examine the matter in accordance. It became an empty formality. In the other case, the organizers approached directly the Supreme Court through a writ petition. When this decision came before the Supreme Court, the matches had been played and both tournaments were over. Broadly, the Court was asked to rule upon, inter alia, whether Governmental agencies such as Doordarshan could claim a monopoly over airwaves or alternatively or, did the organizer or the producer of the event have the right to select a broadcasting agency of his own choice?

The principle issues involved that the court addressed werethe scope of Article 19 (1)(a) vis-a-vis ((Art.19(1)(a)- All citizens shall have the right to freedom of speech and expression.))broadcasting and the extent of government control over frequencies and broadcasting. The court also considered the nature of the regulatory framework body governing broadcasting.

The scope Article 19(1)(a) with regard to broadcasting can be easily comprehended with the statement of Justice P. B. Sawant which deserves to be quoted:

“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 ((Cricket Assn. case n(1) at p.124(i)(ii).)).”

The Court held that undoubtedly, broadcasting came within the ambit of the protected freedom under Art. 19(1)(a). It was observed by the court that the airwaves or frequencies involved in the telecast and broadcast constitute 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.

CAB and BCCI through their learned counsel contended that the game of cricket provides entertainment which in turn is an expression within the ambit of freedom of speech and expression guaranteed under Art.19(1)(a). Right to disseminate and receive information is a part of the right guaranteed by Art.19(1)(a). Telecasting a cricket match is a form of dissemination of information ((ibid at p.148(e).)). On the other hand, it was argued by State that this was a purely commercial matter, and therefore Art. 19(1)(g) was not attracted ((ibid at p.149.)). It is notable that the Court rejected this argument primarily on the basis of the fact that sport was a form of expression, and dissemination of information about sport was also a part of the freedom of expression; and secondly, that the character of the telecasters, i.e. the BCCI and the Cricket Association of Bengal, was that of non-profit organizations seeking to popularize the game of cricket through the best possible methods. Indeed, the Court expressly distinguished the case of a purely profit-making organization, and an organization whose primary function involved an incidental inflow of profits.

The Court framed the debate in the language of an Article 19(1)(a) freedom of speech and expression violation, which was sought to be justified by recourse to Article 19(2). While deciding it took into consideration Odyssey Communications Pvt. Ltd. Case, It was held that the right of citizens to exhibit films on Doordarshan subject to the terms and conditions to be imposed by the Doordarshan is a part of the fundamental right of freedom of expression guaranteed under Article 19 (1) (a) which can be curtailed only under circumstances set out under Article 19 (2). Similarly, in S. Rangarajan v. P. Jagjivan Ram & Ors., (([1989]2 SCC 574.))it was held that the-freedom of speech under Article 19 (1) (a) means the right to express one’s opinion by words of mouth, writing, printing, picture or in any other manner. It would thus include the freedom of communication and, their right to propagate or publish opinion. The communication of ideas could be made, through any medium, newspaper, magazine or movie. But this right is subject to reasonable restriction in the larger interests of the community and the country set out in Article 19 (2). Article 19 (1) (a) includes the right to propagate one’s views through the print media or through any other communication channel e.g. the radio and the television. Every citizen of this country, therefore, has the right to air his or her views through the printing and/or the electronic media subject of course to permissible restrictions imposed under Article 19(2) of the Constitution ((See Printers (Mysore) Ltd. & Anr v. Asst. Commercial Tax Officer & Ors., [1994] 2 SCC 434;  In Life Insurance Corporation of India v. Professor Manubhai D. Shah [1992] 3 SCC 6371.)).

Several Broadcasting laws of other countries were taken into account especially of European countries. It was observed that Constitutions of most of the countries of the Western Europe cast an obligation upon their Government to promote broadcasting freedom and not merelyto refrain from interfering with it. The Constitution of Germany expressively involves right to broadcast within the ambit of freedom of speech and expression. The main attributor for this development has been Article 10 of the European Convention on Human Rights which guarantees freedom of expression to all the citizens of the member countries and refers specifically to radio and television. It says:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and import information and ideas without interference by public authority and regardless of frontiers.

Para 11 of the Declaration of the Rights of Man adopted by the National Assembly in 1789- affirmed in the preamble to the Constitution of the Fifth Republic (1958) and treated as binding on all branches of the government guarantees freedom of dissemination of thought and opinion. This provision is regarded as the child of the French Revolution and has greatly influenced the development of broadcasting freedom in that country.

In Germany, Article 5 of the Basic Law of 1949 states, “Every one shall have the right freely to express and disseminate his opinion by speech, writing, and pictures and freely to inform himself from generally accessible sources.”

Broadly speaking, Broadcasting freedom comprises four facets in itself namely,
(a) Freedom of the Broadcaster which should not be understood as merely an immunity from government intervention but must be understood as a freedom to safeguard free speech right of -all the people without being dominated either by the State or any commercial group.

(b) Listeners/Viewers Right Broadcasting freedom involves and includes the right of the viewers and listeners who retain their interest in free speech. It is on this basis that the European courts have taken the view that restraints on freedom of broadcasters are justifiable on the very ground of free speech. It has been already held that freedom of expression includes the right to receive information and ideas as well as freedom to impart them.

(c) Access to Broadcasting; and

(d) The Right to establish private Broadcasting stations ((Cricket Assn. case n(1) at p.179.)).

Speaking of clause 2 of Article 19, reasonable restrictions are placed upon freedom of speech and expression so as to conceive them in national interest as well as in the interest of the society. The first set of grounds, viz., the sovereignty and integrity of India, the security of the State, friendly relations with foreign States and public order are grounds referable to national interest whereas the second set of grounds, viz., decency, morality, contempt of court, defamation and incitement to offence are conceived in the interest of society.Therefore, the fundamental right can be limited only by reasonable restrictions under a law made for the purposes mentioned in Article 19(2).

Justice Sawant observed that the right to free speech includes right to educate, inform, and entertain thus including the right to be educated, informed, and entertained subject to restrictions under Article 19(2). Right to communicate through any media was clearly recognized by the Court ((ibid at p.11.)).However, there is little ambiguity related to the question that whether there is a fundamental right to broadcasting or not. At one point, it was observed that the case did not involve the right of private broadcasters ((ibid at p.17))on the other hand it was also observed that right to telecast is implicit in the right to educate, inform, and entertain, which is an extension of the freedom of speech and expression. Ultimately, it is hard to consider keeping in mind the interpretation of Article 19(1)(a) done by the court that the right to communicate does not include right to broadcast ((See Union of India v. Association for Democratic Reforms, AIR [2002] SC 2112 at p.44.)).

Justice Sawant observed that CAB and BCCI could telecast their matches using a method or agency of their choicebut subject to the underlying character and objectives. In the cases before the Court, the tournament organizers were professional sporting bodies that promote cricket. They did not intend, Justice Sawant assumed, a large profit from telecasting the matches. They would use proceeds from the telecast contracts to develop the sport. Justice Jeevan Reddy, on the other hand, was unwilling to recognize any explicit constitutional right to telecast for private entities, including the tournament organizers ((Cricket Assn. case n(1) at p.94 and p.97(3)(b).)).

While emphasizing more on the current question Justice B.P. Jeevan Reddy observed that airwaves must be used for advancing public good. No one has a right to utilize them at his choice and pleasure with sole motive of making 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. It is the duty of the State to see that airwaves are so utilised as to advance the free speech right of the citizens ((ibid at p. 226(b).)).They must, therefore, be utilized only for the public good. For this reason, there is no fundamental right under article 19 (1) (a) to impart information using these frequencies. But since Justice Sawant’s opinion was in consonance with Justice Mohan, the third judge in the case, it represents the Supreme Court’s majority view. Despite the ambiguity in his language, Justice Sawant recognized a fundamental right to impart information and communicate through audio and visual means of one’s choice is very significant. This must surely mean that there is a fundamental right to broadcast even if its scope depends on the underlying entity exercising it.

This was indeed a leap forward in India constitutional law. The Supreme Court already declared in Romesh Thappar and Brij Bhushan that article 19 (1) (a) includes the freedom of the press which includes the right to print, publish, and circulate news and opinions without government interference ((Romesh Thappar v. The State of Madras, AIR 1950 SC 124: (1950) SCR 594; Brij Bhushan and Anr. V. The State of Delhi, [1950] SCR 605.See also Odyssey Communications Pvt. Ltd. v.Lokvidyan Sanghatana and Ors., AIR [1988] SC 1642; Bennett Coleman & Co. and Ors. V. Union of India and Ors.,[1973] 2 SCR 757; Indian Express Newspapers(Bombay) Pvt. Ltd. and Ors. v. Union of India and Ors., [1986] 159 ITR 856(SC).)). Thus, when broadcasting emerged as an important expressive medium, it was only fair for the Supreme Court to extend to provide broadcasting with similar cover. A denial of free speech in broadcasting would have caused an unhealthy constitutional controversy. A person would have a fundamental right to say, write, and publish something, but not to telecast or broadcast it. That position would have been unfair and unjust.

The second issue which was raised was regarding the claim of monopoly by Doordarshan over airwaves. In India there has been monopoly of broadcasting/telecasting in the Government which was backed by the Section 4(1) Indian Telegraph Act of 1985.Further, the Cinematograph Act, 1952 and the Rules made thereunder empower the Government to pre-censor films. The power of the Government to license and to pre-censor under the respective legislations has to be exercised in conformity with the provisions of Article 19(2).

In this context the Court observed:

In a democratic polity, neither any private individual, institution or Organisation nor any Government or Government Organisation can claim exclusive right over it. Our Constitution also forbids monopoly either in the print or electronic media((Cricket Assn. case n (1) at p.48)).”

It was contended by the Government in favor of monopolization  that as to prevent the concentration of the frequencies in the hands of the rich few who can information to suit their interests and thus in fact to control and manipulate public opinion in effect smothering the right to freedom of speech and expression and freedom of information of others. But at the same time the claim to monopoly made on this ground may, however, lose all its raison d’etre if either any section of the society is unreasonably denied an access to broadcasting or the Governmental agency claims exclusive right to prepare and relay programmes ((ibid)). In other words, if the Government is vested with an unbridled discretion to grant or refuse to grant the license or access to the media, the reason for creating monopoly will lose its validity. A monopoly over broadcasting, whether by Government or anybody else, is inconsistent with free speech right of the citizens.

Justice Sawant held that the Constitution forbids monopoly in either print or electronic media. Though, he was of the view that if private broadcasters acted irresponsibly it would be impossible to repair the damage ((ibid at p.13)). But, he also countered that there are several regulatory provisions to handle such a situation. The judge seemed troubled that the government enjoyed virtually unbridled discretion to grant or refuse a broadcast licence. This situation could result, he warned, in the government suppressing the free speech right, instead of protecting it. Justice Reddy opined that both frequencies and radio spectrum are public property. Government control over the broadcast media effectively means control of political party in power which is again harmful for the free speech right ((ibid at p.90)).

Justice Sawant observed that frequencies being a public property must be used in the best interest of the society and for this purpose, a central agency could either establish its own broadcasting network or it could license private users. Because of the costs involved only few can own frequencies but to overcome this problem the fairness doctrine was evolved by U.S. Federal Communications Commission likewise for Indian scenario, a similar arrangement is available in the form of Press Council. Thus, Justice Sawant, while endorsing the public nature of frequencies, clearly indicated that private citizens and entities could also utilize them. Justice Reddy however do not trusted Private Broadcasters for this purpose reason being their acts motivated by earning profits. He was in the favour of establishing a public broadcasting corporation that would use the frequencies for public good.

Justice Sawant in the summary of conclusions issued order to the Central Government. He directed to take immediate steps to establish an independent autonomous public authority to control and regulate use of airwaves or frequencies representing all sections and interests of the society at large. Justice Reddy, too, favouring Justice Sawant but prescribing wider role. He observed that only a statutory corporation could ensure fair and balance presentation of news and public issues ((ibid at p.40.)).

Summarizing, the court held that air waves or frequencies are public property and must be controlled and regulated by a public authority in the interest of public. Since, airwaves being a public property, there is an inbuilt restriction on its use as in the case of any other public property. Accordingly, while an individual has a right under Article 19(1) (a) to have an access to telecasting, this right is subject to the limitation on the account of the use of public property i.e. Article 19(2). The airwaves involved in the exercise of the right can be control and regulated by public authority even on the grounds not strictly covered under Article 19(2). The Court also directed to take immediate steps as to establish an independent autonomous public authority. The provision for the Prasar Bharti(Broadcasting Cooperation of India) seems to be taking care of this issue.

Often, this case is understood as an exception to freedom of speech and expression which can be created on grounds other than those in Article 19(2). It should be understood clearly that the Court was not adding any exceptions to those specified in Article 19(2). It was on the other hand laid down propositions as to restrictions on the use of airwaves owing to its technical nature and being a public property. Considering the importance of right to freedom of speech and expression, it should not be viewed as a door for creating new inroads to the right.