The Secretary, Ministry of Information & Broadcasting Vs. Cricket Association of Bengal & Anr [1995] INSC 126 (9 February 1995)
Sawant, P.B. Sawant, P.B. Mohan, S. (J) Jeevan Reddy, B.P. (J)
CITATION: 1995 AIR 1236 1995 SCC (2) 161 JT 1995 (2) 110 1995 SCALE (1)539
ACT:
HEAD NOTE:
1. Leave granted.
2. It will be convenient to answer the questions of law that arise in the present case, before we advert to the factual controversy between the parties. The questions of law are:
[1] Has an organiser or producer of any event a right to get the event telecast through an agency of his choice whether national or foreign?
[2] Has such organiser a choice of the agency of telecasting, particularly when the exercise of his right, does not make demand on any of the frequencies owned, commanded or controlled by the Government or the Government agencies like the Videsh Sanchar Nigam Limited [VSNL] or Doordarshan [DD]?
[3] Can such an organiser be prevented from creating the terrestrial signal and denied the facility of merely uplinking the terrestrial signal to the satellite owned by another agency whether foreign or national?
[4] What, if any, are the conditions which can be imposed by the Government department which in the present case is the Ministry of Information and Broadcasting [MIB] for [a] creating terrestrial signal of the event and [b] granting facilities of uplinking to a satellite not owned or con- trolled by the Government or its agencies?
3. On answers to these questions depend the answers to the incidental questions such as [i] whether the Government or the Government agencies like DD in the present case, have a monopoly of creating terrestrial signals and of telecasting them or refusing to telecast them, [ii] whether the Government or Government agencies like DD can claim to be the host broadcaster for all events whether produced or organised by it or by anybody else in the country and can insist upon the organiser or the agency for telecasting en- gaged by him, to take the signal only from the Government or Government agency and telecast it only with its permission or
4. To appreciate the thrust of the above questions and the answers to them, it is necessary first to have a proper understanding of what 'telecasting' means and what its legal dimensions and consequences are. Telecasting is a system of communication either audio or visual or both. We are concerned in the present case with audio-visual telecommunication. The first stage in telecasting is to generate the audio-visual signals of the events or of the information which is sought to be communicated. When the event to be telecast takes place on the earth, necessarily the signal is generated on the earth by the 123 requisite electronic mechanism such as the audio-visual recorder. This stage may be described as the recording stage. The events may be spontaneous, accidental, natural or organised. The spontaneous, accidental and natural events are by their nature uncontrollable. But the organised events can be controlled by the law of the land.
In our country, since the Organisation of an event is an aspect of the fundamental right to freedom of speech and expression protected by Article 19 [1] (a), the law can be made to control the Organisation of such events only for the purposes of imposing reasonable restrictions in the interest of the sovereignty and integrity of the country, the security of the state, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement- to an offence as laid down under Article 19 [2] of the Constitution. Al- though, therefore, it is not possible to make law for prohibiting the recording of spontaneous, accidental or natural events, it is possible for the reasons mentioned in Article 19 [2], to restrict their telecasting. As regards the organised events, a law can be made for restricting or prohibiting the Organisation of the event itself, and also for telecasting it, on the same grounds as are mentioned in Article 19 [2]. There, cannot, however, be restrictions on producing and recording the event on grounds not permitted by Article 19 [2]. It, therefore, follows that the Organisation or production of an event and its recording cannot be prevented except by law permitted by Article 19 [2]. For the same reasons, the publication or communication of the recorded event through the mode of cassettes cannot be restricted or prevented except under such law. All those who have got the apparatus of video cassette recorder [VCR] and the television screen can, therefore, view and listen to such recorded event [hereinafter referred to, for the sake of convenience, as 'viewers']. In this process, there is no demand on any frequency or channel since there is no live- telecast of the event. The only additional restriction on telecasting or live-telecasting of such event will be the lack of availability of the frequency or channel.
5. Since in the present case, what is involved is the right to live-telecast the event, viz., the cricket matches organised by the Cricket Association of Bengal, it is necessary to understand the various issues involved in live telecasting. It may be made clear at the outset, that there may as well be a file telecast [i.e., telecasting of the events which are already recorded by the cassette]. The issues involved in file telecasting will also be more or less the same and therefore, that subject is not dealt with separately. Telecasting live or file necessarily involves the use of a frequency or a channel.
6. The telecasting is of three types, [a] terrestrial, [b] cable and [c] satellite. In the first case, the signal is generated by the camera stationed at the spot of the event,- and the signal is then sent to the earthly telecasting station such as the T.V. Centre which in turn relays it through its own frequencies to all the viewers who have T.V.screens/sets. In the second case, viz., cable telecasting, the cable operator receives the signals from the satellite by means of the parabolic dish antenna and relays them to all those T.V. screens which are linked to his cable. He also relays the recorded file programmes or cassettes through the cable to the cable-linked viewers. In this case, there is no restriction on 124 his receiving the signals from any satellite to which his antenna is adjusted. There is no demand made by him on any frequency or channel owned or controlled by the national government or governmental agencies. The cable operator can show any event occurring in any part of the country or the world live through the frequencies if his dish antenna can receive the same. The only limitation from which the cable T.V. suffers is that the programmes relayed by it can be received only by those viewers who are linked to the dish antenna concerned. The last type, viz., satellite T.V. operation involves the use of a frequency generated, owned or controlled by the national Government or the Governmental agencies, or those generated, owned and controlled by other agencies. It is necessary to bear in mind the distinction between the frequencies generated, owned and controlled by the Government or Governmental agency and those generated and owned by the other agencies. This is so because generally, as in the present case, one of the contentions against the right to access to telecasting is that there are a limited number of frequencies and hence there is the need to utilise the limited resources for the benefit of all sections of the society and to promote all social interests by giving them priority as determined by some central authority. It follows, therefore, that where the resources are unlimited or the right to telecast need not suffer for want of a frequency, objection on the said ground would be misplaced. It may be stated here that in the present case, the contention of the MIB and DD against the right to telecast claimed by the Cricket Association of Bengal [CAB]/Board of Control for Cricket in India [BCCI] was raised only on the ground of the limitation of frequencies, ignoring the fact that the CAB/BCCI had not made demand on any of the frequencies generated or owned by the MIB/DD. It desired to telecast the cricket matches organised by it through a frequency not owned or controlled by the Government but owned by some other agency. The only permission that the CAB/ BCCI sought was to uplink to the foreign satellite the signals created by its own cameras and the earth station or the cameras and the earth station of its agency to a foreign satellite. This permission was sought by the CAB/BCCI from VSNL which is the Government agency controlling the frequencies. The permission again cannot be refused except under law made in pursuance of the provisions of Article 19 [2] of the Constitution. Hence, as stated above, one of the important questions to be answered in the present case is whether the permission to uplink to the foreign satellite, the signal created by the CAB/BCCI either by itself or through its agency can be refused except on the ground stated in the law made under Article 19 [2].
7. This takes us to the content of the fundamental right to the freedom of speech and expression guaranteed by Article 19 [1] (a) and the implications of the restrictions permitted to be imposed on the said right, by Article 19 [2]. We will first deal with the decisions of this Court where the dimensions of the right are delineated.
8. In Romesh Thappar v. The State of Madras [1950 SCR 594] the facts were that the Provincial Government in exercise of its powers under Section 9 [1-A] of Madras Maintenance of Public Order Act, 1949, by an order imposed a ban upon the entry and circulation of the petitioner's journal 'Cross Roads'. The said order stated that it was being passed for the pur- 125 pose of securing the public safety and the maintenance of public order. The petitioner approached this Court under Article 32 of the Constitution claiming that the order contravened the petitioner's fundamental right to freedom of speech and expression. He also challenged the validity of Section 9 [1-A] of the impugned Act. The majority of the Court held that the freedom of speech and expression includes freedom of propagation of ideas and that freedom is ensured by the freedom of circulation. In support of this view, the Court referred to two decisions of the U.S. Su- preme Court viz., [1] Exparte Jackson [96 US 727] and [ii] Lovell v. City of Griffin [303 US 444] and quoted with approval the following passage therefrom: "Liberty of circulation is as essential to that freedom as the liberty of publication. Indeed, without circulation the publication would be of little value". Section 9 [1-A] of the impugned Act authorised the Provincial Government, "for the purpose of securing the public safety or the maintenance of public order, to prohibit or regulate the entry into or the circulation, sale or distribution in the Province of Madras or any part thereof or any document or class of documents".
The question that the Court had to answer was whether the impugned Act insofar as it contained the aforesaid provision was a law relating to a matter which undermined the security of, or tended to overthrow the State. The Court held that "public order" is an expression of wide connotation and signifies that state of tranquility which prevails among the members of a political society as a result of the internal regulations enforced by the Government which they have established. The Act was passed by the Provincial Leg- islature under Section 100 of the Government of India Act, 1935, read with Entry I of List II of the Seventh Scheduled to that Act. That Entry, among others, comprised "public order" which was different from "public safety" on which subject the Provincial Legislature was not competent to make a law. The Court distinguished between "public order" and "public safety" and held that public safety was a part of the wider concept of public order and if it was intended to signify any matter distinguished from and outside the content of the expression "public order", it would not have been competent for the Madras Legislature to enact the provision so far as it related to public safety. "Public safety" ordinarily means security of the public or their freedom from danger. In that sense, anything which tends to prevent danger to public health may also be regarded as se- curing public safety. The meaning of the expression must, however, vary according to the context. The Court then rejected the argument that the securing of the public safety or maintenance of public order would include the security of the State which was covered by Article 19 [2] and held that where a law purports to authorise the imposition of restrictions on a fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative actions affecting such right, it is not possible to uphold it even insofar as it may be applied within the constitutional limits as it is not severable. So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it may be held to be wholly unconstitutional and void. In other words, clause [2] of Article 19 having allowed the imposition of restrictions on the freedom of speech and expression only in cases where danger to the State is involved, an enactment which is capable of being 126 applied to cases where no such danger could arise, cannot be held to be constitutional and valid to any extent.
9. The above view taken by this Court was reiterated in Brij Bhushan & Anr. v. The State of Delhi [1950 SCR 6051 where Section 7 [1] (c) of the East Punjab Public Safety Act, 1949 as extended to the Province of Delhi, providing that the Provincial Government or any authority authorised by it in this behalf, if satisfied that such action was necessary for preventing or combating any activity prejudicial to the public safety or the maintenance of public order, may pass an order that any matter relating to a particular subject -or class of subjects shall before publication be submitted for scrutiny, was held as un- constitutional and void. The majority held that the said provision was violative of Article 19 [1] [a] since it was not a law relating to a matter which undermined the security of, or tended to overthrow the State within the meaning of the then saving provision contained in Article 19 [2]. The Court further unanimously held that the imposition of pre- censorship of a journal was a restriction on the liberty of the press which was an essential part of the right to freedom of speech and expression declared by article 19 [1](a).
10. In Hamdard Dawakhana [Wakf] Lal Kuan, Delhi & Anr. v. Union of India & Ors. [(1960) 2 SCR 671], the Court held that the object of the Drugs and Magic Remedies [Objectionable Advertisements] Act, 1954 was the prevention of self-medication and self-treatment by prohibiting in- struments which may be used to advocate the same or which tended to spread the evil. Its object was not merely the stopping of advertisements offending against morality and decency. The Court further held that advertisement is no doubt a form of speech but its true character is reflected by the object for the promotion of which it is employed. It is only when an advertisement is concerned with the expression or propagation of ideas that it can be said to relate to freedom of speech but it cannot be said that the right to publish and distribute commercial advertisements advertising an individual's personal business is a part of the freedom of speech guaranteed by the Constitution. The provisions of the Act which prohibited advertisements commending the efficacy, value and importance in the treatment of particular diseases of certain drugs and medicines did not fall under Article 19 [1] (a) of the Con- stitution. The scope and object of the Act, its true nature and character was not interference with the right of freedom of speech but it dealt with trade and business. The provisions of the Act were in the interest of the general public and placed reasonable restrictions on the trade and business of the petitioner and were saved by Article 19 [6].
The Court further held that the first part of Section 8 of the impugned Act which empowered any person authorised by the State Government to seize and detain any document article or thing which such person had reason to believe, contained any advertisement contravening the provisions of the Act imposed an unreasonable restriction on the fundamental rights of the petitioner and was unconsti- tutional. According to the Court, the said operation of Section 8 went far beyond the purposes for which the Act was enacted and failed to provide proper safeguards in regard to the exercise of the powers of seizure and detention as had been provided by the legislature in other statutes.
However, if this operation was ex- 127 cised from the section the remaining portion would be unintelligible and could not be upheld.
11. In Sakal Papers [P] Ltd. & Ors.. v. The Union of India [(1962)] 3 SCR 842] what fell for consideration was the Newspaper [Price and age] Act, 1956 which empowered the Central Government to regulate the prices of newspapers in relation to their pages and size and also to regulate the allocation of space for advertising matters and the Central Government order made under the said Act, viz., the Daily Newspaper [Price and Page] Order, 1960 which fixed the maximum number of pages that might be published by the newspaper according to the price charged and prescribing the nature of supplements that could be issued. The Court held that the Act and the Order were void being violative of Article 19 [1] (a) of the Constitution. They were also not saved by Article 19 [2]. The Court asserted that the free- dom of speech and expression guaranteed by Article 19 [1] (a) included the freedom of the press. For propagating his ideas a citizen had the right to publish them, to disseminate them and to circulate them, either by word or mouth or by writing. The right extended not merely to the matter which he was entitled to circulate but also to the volume of circulation. Although the impugned Act and the Order placed restraints on the volume of circulation, their very object was directed against circulation. Thus both interfered with the freedom of speech and expression. The Court held that Article 19 [2] did not permit the State to abridge the said right in the interest of general public.
The Court also held that the State could not make a law which directly restricted one guaranteed freedom for securing the better enjoyment of another freedom. Freedom of speech could not be restricted for the purpose of regu- lating the commercial aspect of the activities of newspapers. In this connection, the following observations of the Court are relevant:
"Its object thus is to regulate something which, as already stated, is directly related to the circulation of a newspaper. Since circulation of a newspaper is a part of the right of freedom of speech the Act must be regarded as one directed against the freedom of speech. It has selected the fact or thing which is an essential and basic attribute of the conception of the freedom of speech, viz., the right to circulate one's views to all whom one can reach or care to reach for the imposition of a restriction. It seeks to achieve its object of enabling what are termed the smaller newspapers to secure larger cir- culation by provisions which without disguise are aimed at restricting the circulation of what are termed the larger papers with better financial strength. The impugned law far from being one, which merely interferes with the right of freedom of speech incidentally, does so directly though it seeks to achieve the end by purporting to regulate the business aspect of a newspaper. Such a course is not permissible and the courts must be ever vigilant in guarding perhaps the most precious of all the freedoms guaranteed by our Constitution. The reason for this is obvious.
The freedom of speech and expression of opinion is of paramount importance under a democratic Constitution which envisages changes in the composition of legislatures and governments and must be preserved. No doubt, the law in question was made upon the rec- ommendation of the Press Commission but since its object is to affect directly the right of circulation of newspapers which would necessarily undermine their power to influence public opinion it cannot but 128 be regarded as a dangerous weapon which is capable of being used against democracy itself.
x x x x x x The legitimacy of the result intended to be achieved does not necessarily imply that every means to achieve it is permissible; for even if the end is desirable and permissible, the means employed must not transgress the limits laid down by the Constitution, if they directly impinge on any of the fundamental rights guaranteed by the Constitution it is no answer when the constitutionality of the measure is challenged that apart from the fundamental right infringed the provision is otherwise legal.
Finally it was said that one of its objects is to give some kind of protection to small or newly started newspapers and, therefore, the Act is good. Such an object may be desirable but for attaining it the State cannot make inroads on the right of other newspapers which Art. 19 [1] (a) guarantees to them. There may be other ways of helping them and it is for the State to search for them but the one they have chosen falls foul of the Constitution.
To repeat, the only restrictions which may be imposed on the rights of an individual under Art. 19 [1] (a) are those which cl. [2] of Art 19 permits and no other".
12. In Bennett Coleman & Co. & Ors. v. Union of India & Ors. [(1972) 2 SCC 788], the majority of the Constitution Bench held that newspapers should be left free to determine their pages, their circulation and their new edition within their quota which has been fixed fairly. It is an abridgment of freedom of expression to prevent a common ownership unit from starting a new edition or a new newspa- per. A common ownership unit should be free to start a new edition out of their allotted quota and it would be logical to say that such a unit can use its allotted quota for changing its page structure and circulation of different editions of same paper. The compulsory reduction to ten pages offends Article 19 [1] (a) and infringes the freedom of speech and expression. Fixation of page limit will not only deprive the petitioners of their economic viability, but will also restrict the freedom of expression by reason of the compulsive reduction of page level entailing reduction of circulation and including the area of coverage for news and views. Loss of advertisements may not only entail the closing down, but will also affect the circulation and thereby impinge on freedom of speech and expression. The freedom of press entitles newspapers to achieve any volume of circulation. It was further held that the machinery of import control cannot be utilised to curb or control circulation or growth or freedom of newspapers.The news print control policy was in effect a newspaper control policy and a newspaper control policy is ultra vires the Import Control Act and the Import Control Order. The majority further held that by the freedom of press is meant the right of citizens to speak and publish and express their views. The freedom of the press embodies the right of the people to read and it is not ante-thetical to the right of the people to speak and express. The freedom of speech and expression is not only in the volume of circulation but also in the volume of news and views.
The press has the right of free publication and their circulation without any obvious restraint on publication.
If the law were to single out press 129 for laying down prohibitive burdens on it that would restrict circulation, penalise freedom of choice as to personnel, prevent newspapers from being started and compel the press to Government aid. This would violate Article 19 [1] (a) and would fall outside the protection afforded by Article 19 [2]. The First Amendment to the American Constitution contains no exception like our Article 19 [2].
Therefore, American decisions have evolved their own exceptions. The American decisions establish that a Government regulation is justified in America as an important essential Government interest which is unrelated to the suppression of free expression. The true test is whether the effect of the impugned action is to take away or abridge fundamental rights. The object of the law or executive action is irrelevant when it is established that the petitioner's fundamental right is infringed.
13. In Indian Express Newspapers (Bombay) Pvt. Ltd. & Ors. v. Union of India & Ors. [(1985) 1 SCC 641 ], the Court held that the expression "freedom of the press" has not been used in Article 19, but it is comprehended within Article 19 [1] (a). This expression means a freedom from interference from authority which would have the effect of interference with the content and circulation of newspapers. There cannot be any interference with that freedom in the name of public interest. The purpose of the press is to advance the public interest by publishing facts and opinions without which democratic electorate cannot make responsible judgments.
Freedom of the press is the heart of social and political intercourse. It is the primary duty of the Courts to up- ,,hold the freedom of the press and invalidate all laws or administrative actions which interfere with it contrary to the constitutional mandate. The freedom of expression has four broad social purposes to serve:
[i] it helps an individual to attain self fulfilment,
[ii] it assists in the discovery of truth,
[iii] it strengthens the capacity of an individual in participating in decision-making and
[iv] it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.
All members of the society should be able to form their own beliefs and communicate them freely to others. In sum, the fundamental principle involved here is the people's right to know. Freedom of speech and expression should, therefore, receive a generous support from all those who believe in the participation of people in the administration. It is on account of this special interest which society has in the freedom of speech and expression that the approach of the Government should be more cautious while levying taxes on matters concerning newspaper industry than while levying taxes on other matters.The Courts are there always to strike down curtailment of freedom of press by unconstitutional means. The delicate task of determining when it crosses from the area of profession, occupation, trade, business or industry into the area of freedom of expression and interferes with that freedom is entrusted to the Courts. In deciding the reasonableness of restrictions imposed on any fundamental right the Court should take into consideration the nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the disproportion of the imposition and the prevailing conditions including the social values whose needs are sought to be satisfied by means of the restrictions. The imposition of a tax like the custom duty on 130 news print is an imposition of tax on knowledge and would virtually amount to a burden imposed on a man for being literate and for being conscious of his duty as a citizen to inform himself of the world around him. The pattern of the law imposing custom duty and the manner in which it is operated, to a certain extent, exposes the citizens who are liable to pay the custom duties to the vagaries of executive discretion.
14. In Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana and others [(1988) 3 SCC 410 ], 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]. The right is similar to the right of citizen to public his views through any other media such as newspapers, maga- zines, advertisement hoarding etc. subject to the terms and conditions of the owners of the media. The freedom of expression is a preferred right which is always very zealously guarded by the Supreme Court. However, on the question whether a citizen has a fundamental right to estab- lish a private broadcasting station or T.V. centre, the Court reserved its opinion for decision in an appropriate case. The matter had come up before this Court against an interim injunction order issued by the High Court as a result of which 12th and 13th episodes of the film "Honi- Anhoni" could not be telecast on the scheduled dates. The Court held that it was not the case of the writ petitioners before the High Court that the exhibition of the said serial was in contravention of any specific law or direction issued by the Government. They had also not alleged that the Doordarshan had shown any undue favour to the appellant and the sponsoring institutions resulting in any financial loss to the public exchequer. The objection to the exhibition of the film had been raised by them on the basis that it was likely to spread false or blind beliefs among the members of the public. They had not asserted any right conferred on them by any statute or acquired by them under a contract which entitled them to secure an order of temporary injunction. The appellant before this court had denied that the exhibition of the serial was likely to affect prejudicially the wellbeing of the people. The Union of India and Doordarshan had pleaded that the serial was being telecast after following the prescribed procedure and taking necessary precautions. The writ petitioners had not produced any material. apart from their own statements to show" that the exhibition of the serial was prima facie prejudicial to the community. This Court held that the High Court had overlooked that the issue of an order of interim injunction would infringe the fundamental right of the producer of a serial. In the absence of any prima facie evidence of gross prejudice that was likely to be caused to the public generally by the exhibition of the serial, it was not just and proper to issue an order of temporary in- junction.
15. In S. Rangarajan v. P. Jagjivan Ram & Ors. [(1989) 2 SCC 574], it was held that the-freedom of speech under Ar- ticle 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 131 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]. These restrictions are intended to strike a proper balance between the liberty guaranteed and the social interests specified in Article 19 [2]. This is the difference between the First Amendment to the U.S. Constitution and Article 19 of our Constitution. The decisions bearing on the First Amendment are, therefore, not useful to us except the broad principle and purpose of the guarantee. The Court, in this connection, referred to the U.S. decisions in Mutual Film Corporation v. Industrial Commission [236 US 230 (1915)], Burslyn v. Wilson [343 US 495] and Schenck v. United States [249 US 47]. The Court further held that there should be a compromise between the interest of freedom of expression and social interests. The Court cannot simply balance the two interests as if they are of equal weight. The Court's commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression.
The expression of thought should be intrinsically dangerous to the public interests. It should be inseparably locked up with the action contemplated like the equivalent of a "spark in a powder keg". Though movie enjoys the guarantee under Article 19 [1] (a), there is one significant difference between the movie and other modes of communication. Movie motivates thought and action and assures a high degree of attention and retention. In view of the scientific improve- ments in photography and production, the present movie is a powerful means of communication. It has a unique capacity to disturb and arouse feelings. It has much potential for evil as it has for good. With these qualities and since it caters for mass audience who are generally not selective about what they watch, the movie cannot be equated with other modes of communication. It cannot be allowed to function in a free marketplace just as does the newspaper or magazines. Censorship by prior restraint is, therefore, not only desirable but also necessary. But the First Amendment to the U.S. Constitution does not permit any prior restraint, since the guarantee of free speech is in unqualified terms. Censorship is permitted mainly on the ground of social interests specified under Article 19 [2] with emphasis on maintenance of values and standards of society. Therefore, censorship with prior restraint must necessarily be reasonable that could be saved by the well accepted principles of judicial review. The standard to be applied by the board or courts for judging the film should be that of an ordinary man of common sense and prudence and not that of an out of the ordinary or hypersensitive man.
The board should exercise considerable circumspection on movies affecting the morality or decency of our people and cultural heritage of the country. The moral values in particular, should not be allowed to be sacrificed in the guise of social change or cultural assimilation. The path of right conduct shown by the great sages and thinkers of India and the concept of 'Dharam' [righteousness in every respect], which are the bedrock of our civilisation, should not be allowed to be shaken by unethical standards. But this does not mean that the censors should have an orthodox 132 or conservative outlook. Far from it, they must be responsive to social change and they must go with the current climate. However, the censors may display more sensitivity to movies which will have a markedly deleterious effect to lower the moral standards of those who see it.
16. However, the producer may project his own message which the others may not approve of it. But he has a right to 'think out' and put the counter-appeals to reason. It is a part of a democratic give and take to which one could complain. The State cannot prevent open discussion and open expression, however hateful to its policies. Everyone has a fundamental right to form his own opinion on any issue of general concern. He can form and inform by any legitimate means. The democracy is a government by the people via open discussion. The democratic form of government itself demands its citizens an active and intelligent participation in the affairs of the community. The public discussion with people's participation is a basic feature and a rational process of democracy which distinguishes it from all other forms of government.
17. Dealing with the film in question, the Court further observed that the film in the present case suggests that the existing method of reservation on the basis of caste is bad and reservation on the basis of economic backwardness is better. The film also deprecates exploitation of people on caste consideration. This is the range and rigours of the film. There is no warrant for the view that the expression in the film by criticism of reservation policy or praising the colonial rule will affect the security of the State or sovereignty and integrity of India. There is no utterrance in the film threatening to overthrow the government by unlawful or unconstitutional means or for secession; nor is there any suggestion for impairing the integration of the country. Two Revising Committees have approved the film.
The members thereof come from different walks of life with variegated experiences. They represent the cross-section of the community. They have judged the film in the light of the objectives of the Act and the guidelines provided for the purpose. There is nothing wrong or contrary to Constitution in approving the film for public exhibition.
The producer or as a matter of fact, any other person has a right to draw the attention of the government and people that the existing method of reservation in educational institutions overlooks merits. Whether this view is right or wrong is another matter altogether and at any rate, the Court is not concerned with its correctness or usefulness to the people. The Court is only concerned whether such a view could be advocated in a film. To say that one should not be permitted to advocate that view goes against the first principle of our democracy. If the film is unobjectionable and cannot constitutionally be restricted under Article 19 [2], freedom of expression cannot be suppressed on account of threat of demonstration and processions or threats of violence. That would tantamount to negation of the rule of law and a surrender to blackmail and intimidation. It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State. The State cannot plead its inability to handle the hostile audience problem. Freedom of expression which is legitimate and constitutionally protected cannot be held to ransom by an intolerant group of people. The fundamental freedom under Article 19 133 [1] (a) can be reasonably restricted only for the purposes mentioned in Article 19 [2] and the restriction must be justified on the anvil of necessity and not the quicksand of convenience or expediency. Open criticism of government policies and operations is not a ground for restricting ex- pression.
18. The views taken by this Court in the aforesaid decisions have thereafter been repeated and reproduced in the subsequent decisions.
19. In Printers (Mysore) Ltd. & Anr v. Asst. Commercial Tax Officer & Ors. [(1994) 2 SCC 434], it is reiterated that the special treatment given to the newspapers has a philosophy and historical background. Freedom of press has been placed on a higher footing than other enterprises.
Though freedom of press is not expressly guaranteed as a fundamental right, it is implicit in the freedom of speech and expression. Freedom of press has always been a cherished right in all democratic countries. Therefore, it has rightly been described as the Fourth Estate. The demo- cratic crede is of a State are judged today by the extent of freedom the press enjoyed in that State. This decision quotes from the. opinion of Douglas, J. in Terminiello v. Chicago [93 L.ed 1131: 337 US 1 (1949)] that "acceptance by Government of a dissident press is a measure of the maturity of the nation".
20. In Life Insurance Corporation of India v. Professor Manubhai D. Shah [(1992) 3 SCC 6371, the respondent-Ex- ecutive Trustee of the Consumer Education and Research Centre [CERC], Ahmedabad, after making research into the working of the Life Insurance Corporation [LIC], published a study paper portraying the discriminatory practice adopted by the LIC by charging unduly high premia from those taking out life insurance policies and thus denies access to insurance coverage to a vast majority of people who cannot afford to pay the high premium. A member of the LIC wrote a counter article and published it in the daily newspaper "Hindu". The respondent replied to the same in the said newspaper. The member of LIC then published his counter- reply in LIC's house magazine. The respondent requested the LIC to publish his rejoinder also in the said magazine.
That request was turned down. On these facts, the re- spondent filed a writ petition before the High Court challenging the action of the LIC, among other things, on the ground that his fundamental right under Article 19 [1] (a) of the Constitution was violate by LIC by refusing to publish his reply. The High Court held that under the pre- text and guise of publishing a house magazine, the LIC cannot violate the fundamental rights of the petitioner.
This Court endorsing the view taken by the High Court held that the LIC is 'State' within the meaning of Article 12.
The LIC Act requires it to function in the best interest of the community. The community is, therefore, entitled to know whether or not this requirement of the statute is being satisfied in the functioning of the LIC. The respondent's efforts in preparing the study paper was to bring to the notice of the community that the LIC had strayed from its path by pointing out that its premium rates were unduly high when they could be low if the LIC avoided the wasteful indulgences. The endeavour was to enlighten the community of the drawbacks and shortcomings of the LIC and to pinpoint the area where improvement was 134 needed and was possible. By denying to the policy-holders, the information contained in the rejoinder prepared by the respondent, the LIC cannot be said to be acting in the best interest of the community. There was nothing offensive in the rejoinder which fell within the restriction clauses of Article 19 [2]. Nor was it prejudicial to the members of the community or based on imaginary or concocted material.
On the basis of the fairness doctrine the LIC was under an obligation to publish the rejoinder. The respondent's fun- damental right to speech and expression clearly entitled him to insist that his views on the subject should reach those who read the magazine so that they have complete picture before them instead of a one-side or distorted picture The Court also pointed out that the attitude of the LIC in refusing to publish the rejoinder in their magazine financed from public funds, can be described as both unfair and unreasonable unfair because fairness demanded that both view-points were placed before the readers and unreasonable because there was no justification for refusing publication.
The monopolistic State instrumentality which survives on public funds cannot act in an arbitrary manner on the specious plea that the magazine is an in-house one and it is a matter of its exclusive privilege to print or refuse to print the rejoinder. By refusing to print and publish the rejoinder', the LIC had violated respondent's fundamental right. The Court must be careful to see that it does not even unwittingly' aid the effort to defeat the parties' right. Every free citizen has an undoubted right to lay what sentiments he pleases before the public. Freedom to air one's views is the lifeline of any democratic institution and any attempt to stifle, suffocate or gag this right would sound a death-knell to democracy and would help usher in autocracy or dictatorship. This Court has always placed a broad interpretation on the value and content of Article 19 [1] (a), making it subject only to the restrictions permissible under Article 19 [2]. Efforts by intolerant authorities to curb or suffocate this freedom have always been firmly repelled, more so when public authorities have betrayed autocratic tendencies. The Court then went on to observe:
broadly construed to include the freedom to circulate one's views by words of mouth or in writing or through audio-visual instrumentalities. It, therefore, includes the right to propagate one's views through the print media i.e., periodicals, magazines or journals or through any other communication channel e.g. the radio and the television.
The right extends to the citizen being permit- ted to use the media to answer the criticism levelled against the view propagated by him.
The print media, the radio and the tiny screen play the role of public educators, so vital to growth of a healthy democracy. These communication channels are great purveyors of news and views and make considerable impact on the minds of the readers and viewers and are known to mould public opinion on vital issues of national importance. Modem communication mediums advance public interest by informing the public of the events and developments that have taken place and thereby educating the voters, a role considered significant for the vibrant functioning of a democracy.
Therefore, in any set-up, more so in a democratic set-up like ours, dissemination of news and views for popular consumption is a must and any attempt to deny the same must be frowned upon unless it falls within the mischief of Article 19 [2].This freedom must, however,be exercised with 135 circumspection and care must be taken not to trench on the rights of other citizens or to jeopardise public interest.
A constitutional provision is never static, it is ever-evolving and ever-changing and, therefore, does not admit of a narrow, pedantic or syllogistic approach. The Con- stitution-makers employed broad phraseology while the fundamental tights so that they may be able to cater to the needs of a changing society. Therefore, constitutional provisions must receive a broad interpretation and the scope and ambit of such provisions, in particular the fundamental rights, should not be cut down by too astute or too restricted an approach, unless the context otherwise re- quires.
21.The facts in the other case which was disposed of simultaneously by the same judgment were that the Doordarshan refused to telecast a documentary film on the Bhopal Gas Disaster titled 'Beyond Genocide' produced by the respondent Ciment Foundation on the grounds that
[i] the film was outdated,
[ii] it had lost its relevance,
[iii] it lacked moderation and restraint, [iv] it was not fair and balanced,
[v] political parties were raising various issues concerning the tragedy,
[vi] claims for compensation by the victims were sub judice,
[vii] the film was.likely to create commotion in the already charged atmosphere and
[viii] the film criticised the action of the State Government and it was not permissible under the guidelines.
The respondent filed a writ petition in the High Court on the ground of violation of his fundamental right under Article 19 [1] (a) and for a mandamus to the Doordarshan to telecast the film.
The High Court held that the respondent's right under Article 19 [1] (a) obliged the Doordarshan to telecast the film and directed the Doordarshan to telecast the film at a time and date, convenient to it keeping in view the public interest, and on such terms and conditions as it would like to impose in accordance with the law. In the appeal against the said decision filed in this Court, the Court held that once it has recognised that the film maker has the fundamental right under Article 19 [1] (a) to exhibit the film, the onus lies on the party which claims that it was entitled to refuse enforcement of this right by virtue of law made under Article 19 [2] to show that the film did not conform to requirements of that law. Doordarshan being a State-controlled agency funded by public funds could not have denied access to screen except on valid grounds. The freedom conferred on a citizen by Article 19 [1] (a) includes the freedom to communicate one's ideas or thoughts through a newspaper, a magazine or a movie. Traditionally, prior restraints, regardless of their form, are frowned upon as threats to freedom of expression since they contain within themselves forces which if released have the potential of imposing arbitrary- and at times direct conflict with the right of another citizen. Censorship by prior restraint, therefore, seems justified for the protec- tion of the society from the ill-effects that a motion picture may produce if unrestricted exhibition is allowed.
Censorship is thus permitted to protect social interests enumerated in Article 19 [2] and Section 5-B of the Cinema to graph Act. For this reason, need for prior restraint has been recognised and our laws have assigned a specific role to the censors, as such is the need in a rapidly changing societal structure. But since permissible restrictions, albeit reasonable, are all the same restrictions, they are bound to be viewed as anathema, in that, they are in the nature of 136 curbs or limitations on the exercise of the right and are, therefore, bound to be viewed with suspicion, thereby throwing a heavy burden on the authorities that seek to impose them to show that the restrictions are reasonable and permissible in law. Such censorship must be reasonable and must answer the test of Article 14.
22. In this connection, it will be interesting also to know the content of the right to freedom of speech and expression under the First Amendment to the American Constitution where the freedom of press is exclusively mentioned as a part of the said right unlike in Article 19 [1] (a) of our Constitution. Further, the restrictions on the right are not spelt out as in our Constitution under Article 19 [2].
But the U.S. Supreme court has been reading some of them as implicit in the right. In principle, they make no difference to the content of the right to the freedom of speech and expression under our Constitution.
23. In National Broadcasting Company v. United States of America [319 US 190238 : 87 L ed 1344], it was held, inter alia, that the wisdom of regulations adopted by the Federal Communications Commission is not a matter for the courts, whose duty is at an end when they find that the action of the Commission was based upon findings supported by evidence, and was made pursuant to authority granted by Congress.
24. In Joseph Burstyn v Lewis A. Wilson [343 US 495: 96 L ed 1098] a licence granted for the exhibition of a motion picture was rescinded by the appropriate New York authorities -on the ground that the picture was "sacrilegious" within the meaning of a statute requiring the denial of a licence if a film was "sacrilegious". The statute was upheld by the State courts. The Supreme Court unanimously reversed the decision of the State courts.
Disapproving a contrary theory expressed in Mutual Film Corp. v. Industrial Com. of Ohio [236 US 230: 59 L ed 442], six members of the Supreme Court in an opinion of Clerk, J. held that the basic principles of freedom of speech and press applied to motion pictures, even though their production, distribution, and exhibition is a large-scale business conducted for profit. The court recognised that motion pictures are not necessarily subject to the precise rules governing any other particular method of expression, but found it not necessary to decide whether a State may censor motion pictures under a clearly drawn statute, and limited its decision to the holding that the constitutional guarantee of free speech and press prevents a state from banning a film on the basis of a censor's conclusion that it is " sacrilegious". Reed, J. in a concurrent opinion emphasised that the question as to whether a state may establish a system for the licensing of motion pictures was not foreclosed by the court's opinion. Frankfurter, J. with Jackson and Burton, JJ. held that the term "sacrilegious" as used in the statute was unconstitutionally vague.
25.In Red Lion Broadcasting Co. etc. el. al. v. Federal Communications Commission et. al. and United Slates et. al. v. Radio Television News Directors Association et al. [395 US 367: 23 L Ed 2d 3711 which two cases were disposed of by common judgment, the facts were that in the first case, the Broadcasting Company carried as a part of "Christian Crusade" series, a 15-minute broadcast in which a third person's honesty and character were at- 137 tacked. His demand for free reply time was refused by the broadcasting station. Federal Communications Commission [FCC] issued a declaratory order to the effect that the broadcasting station had failed to meet its obligation under the FCC's fairness doctrine. The Court upheld the FCC's directions.
26.In the second case, the FCC after the commencement of the litigation in the same case made the personal attack aspect of the fairness doctrine more precise and more readily enforceable. The Court upheld the FCC's rules overruling the view taken by the Court of Appeals that the rules were unconstitutional as abridging the freedom of speech and press.
27.The Court dealing with the two cases held:
"Just as the Government may limit the use of sound-amplifying equipment potentially so noisy that it drowns out civilized private speech, so may the Govenrnment limit the use of broadcast equipment. The right of free speech of a broadcaster, the user of a sound track, or any other individual does not embrace a right to snuff out the free speech of others.
x x x x x x x for public broadcasting were limited in number, it was essential for the Government to tell some applicants that they could not broadcast at all because there was room for only a few.
x x x x x x x Where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish. If 100 persons want broadcast licences but there are only 10 frequencies to allocate, all of them may have the same "right" to a license;
but if there is to be any effective communication by radio, only a few can be licensed and the rest must be barred from the airwaves. It would be strange if the First Amendment, aimed at protecting and furthering communications, prevented the government from making radio communication possible by requiring licenses to broadcast and by limiting the number of licenses so as not to overcrowd the spectrum.
This has been the consistent view of the Court. Congress unquestionably has the power to grant and deny licenses and to eliminate existing stations... No one has a First Amendment right to a license or to monopolize a radio frequency; to deny a station license because "the public interest" requires it "is not a denial of free speech.
By the same token, as far as the First Amendment is concerned those who are licensed stand no better than those to whom licenses are refused. A license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizenis. There is nothing in the First Amendment which prevents the Govenunent from requiring a licensee to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves.
This is not to say that the First Amendment is irrelevant to public broad- 138 casting. On the contrary, it has a major role to play as the Congress itself recognized, which forbids FCC interference with "the right of free speech by means of radio communication.
Because of the scarcity of radio frequencies, the Government is permitted to put restraints on licensees in favour of others whose views should be expressed on this unique medium.
But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amenchnent. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount...
It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee... It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here.
That right may not constitutionally be abridged either by Congress or by the FCC... right on licensees to prevent others from broadcasting on t 'their" frequencies and no right to an unconditional monopoly of a scarce resource which the Government has denied others the right to use.
x x x x x x x Nor can we say that it is inconsistent with the First Amendment goal of producing an informed public capable of conducting its own affairs to require a broadcaster to permit answers to personal attacks occurring in the course of discussing controversial issues, or to require that the political opponents of those endorsed by the station be given a chance to communicate with the public.
Otherwise, station owners and a few networks would have unfettered power to make time available only to the highest bidders, to com- municate only their own views on public issues, people and candidates, and to permit on the air only those with whom they agreed.
There is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all. "Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests.
x x x x x x x licensees given the privilege of using scarce radio frequencies as proxies for the entire community, obligated to give suitable time and attention to matters of great public concern.
To condition the granting or renewal of licenses on a willingness to present representative community views on controversial issues is consistent with the ends and purposes of those constitutional provisions forbidding the abridgment of freedom of speech and freedom of the press.
Congress need not stand idly by and permit those with licenses to ignore the problems which beset the people or to exclude from the airways anything but their own views of fundamental questions....
Licenses to broadcast do not confer ownership of designated frequencies, but only the temporary privilege of using them." 28.Referring to the contention that although at one time the lack of available frequencies for all who wished to use them justified the Government's choice, of those 139 who would best serve the public interest by acting as proxy for those who would present differing views, or by giving the latter access directly to broadcast facilities, the said condition no longer prevailed to invite continuing control, the Court held:
"Scarcity is not entirely a thing of the past.
Advances in technology, such as microwave transmission, have led to more efficient utilisation of the frequency spectrum, but uses for that spectrum have also grown apace.
Portions of the spectrum must be reserved for vital uses unconnected with human communication, such as radio-navigational aids used by aircraft-and vessels. Conflicts have even emerged between such vital functions as defense preparedness and experimentation in methods of averting n-ddair collisions through radio warning devices. "Land mobile services" such as police, ambulance, fire department, public utility, and other communications system have been occupying an increasingly crowded portion of the frequency spectrum and there are, apart from licensed amateur radio operators' equipment, 5,000,000 transmitters operated on the "citizens' band" which is also increasingly congested. Among the various uses for radio frequency space, including marine, aviation, amateur, military, and common carrier users, there are easily enough claimants to permit use of the whole with an even smaller allocation to broadcast radio and television uses than now exists.
Comparative hearings between competing applicants for broadcast spectrum space are by no means a thing of the past. The radio spectrum has become so. congested that at times it has been necessary to suspend new applications. The very high frequency television spectrums, in the country's major markets, ahmost entirely occupied, although space reserved for ultra high frequency television transmission, which is a relatively recent development as a commercially viable alternative, has not yet been completely filled.
The rapidity with which technological advances succeed one another to create more efficient use of spectrum space on the one hand, and to create new uses for that space by ever growing numbers of people on the other, makes it unwise to speculate on the future allocation of that space. It is enough to say that the resource is one of considerable and growing importance whose scarcity impelled its regulation by an agency authorised by Congress. Nothing in this record, or in our own researches, convinces us that the resource is no longer one for which there are more immediate and potential uses than can be accommodated, and for which wise planning is essential. This does not mean, of course, that every possible wavelength must be occupied at every hour by some vital use in order to sustain the congressional judgment.
The substantial capital investment required for many uses, in addition to the potentiality for confusion and interference inherent in any scheme for continuous kaleidoscopic reallocation of all available space may make this unfeasible. The allocation need not be made at such a breakneck pace that the objectives of the allocation are themselves imperiled.
Even where there are gaps in spectrum utilization, the fact remains that existing broadcasters have often attained their present position because of their initial government selection in competition with others before new technological advances opened new opportunities for further uses. Long experience in broadcasting, confirmed habits of listeners and viewers, network affiliation, and other advantages in program procurement give existing broadcasters a substantial advantage over new entrants, even where new entry is technologically possible. These 140 advantages are the fruit of a preferred position conferred by the Government. Some present possibility for new entry by competing stations is not enough, in itself, to render unconstitutional the Government's effort to assure that a broadcaster's programming ranges widely enough to serve the public interest.
In view of the scarcity of broadcast frequencies, the Government's role in al- locating those frequencies, and the legitimate claims of those unable without governmental assistance to gain access to those frequencies for expression of their views, we hold the regulations and r
