# THE SECRETARY, MINISTRY OF INFORMATION AND ' . BROADCASTING, GOVERNMENT OF INDIA AND ORS v. CRICKET ASSOCIATION OF BENGAL AND ORS

- **Citation:** [1995] 1 S.C.R. 1036
- **Court:** Supreme Court of India
- **Decided:** 1995-02-09
- **Bench:** P.B. Sawant, S. Mohan, B.P. Jeevan Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-secretary-ministry-of-information-and-broadcasting-government-of-india-and-12816
- **Pages:** 156

## Headnote

C
Constitution of India'-Articles 19( 1)( a), 19(2)--Freedom of speech and
expression-Right to telecast live events over airwaves through satellite uplink
facility-Whether part of freedom of speeclt-Held, per curiam; yes-Held further, as airwaves are public property the n'ght is subject to in-built restrictions.
Constitution of lnditr-Articles 19(1) (a), 19(2)-Whether the right to
D telecast events· includes right to agency of one's choice-Right to establish
private telecasting facilities-Held, (Per Majority) the organisers had a right
to sell the telecasting rights to any agen~eld, (Per minority) public
broadcasting is implicit in the right, private broadcasting is noHn the
absence of a licence, the organisers· had no right to telecast by an agency of
E their choice.
Constitution of Inditr-Articles 19(1) (a), 19(2), 14-Telegraph Act,
1885 S.4(1)-Reasonable restrictions on the right-Organisers of event selling
telecasting rights to foreign agency-Organisers not obtaining licence for.
telecast but paying charges for uplinking facility-No demand made for
F utilising frequencies controlled by government agencies-Government agencies refusing licence or permission to telecast-Whether refusal of licence to
telecast malafide and arbitrary-Held (per Majority) Doordarshan could not
reJu,se to telecast particularly since there was no lack of frequency; refusal
could be only on grounds specified in· Article 19 (2)--Per minority-The
G objection to a foreign agency telecasting even without a licence was not
. arbitrary or malafide.
Constitution of India Article 19(1) (a), 19(2)-Telecastingfrom Indian
soil- Whether monopoly in favour of Doordarshan violative of the freedom
of speeclt-Held, (per minority), Monopoly unacceptabl~leld (per curiam)
H control to be in hands of an autonomous public C01JJOration.
1036
_(
MIN. OF INFORMATION AND BROADCASTING v. CRICKEf ASSN. OF BENGAL 1037
Constitution of Indi~Article 19(1) (a}-Telecasting of events by orA
,Ir
ganisers through foreign agency-Whether the right is in fact a commercial
right traceable to Article 19 (1) (g)-He/d (Per Majority) organisers are not
_,
seeking to enforce a commercial right-Held, (per minority) the right is sought
really by the foreign agency and the ref ore question of violation of such right
under article 19 (l)(a) does not arise.
B
The Cricket Association of Bengal (CAB) organised an international
cricket tournament in which India and four other countries participated.
~ -I-.
The CAB wrote to Doordarsban (DD), the official television network, in
March 1993 inviting an offer for the amount they would be willing to pay
CAB for live television coverage of the cricket matches in either of the c
alternatives : where Doordarshan would create the host broadcaster
signal and undertake live telecast or where any other party would create
the host broadcaster signal and DD would purchase the rights to telecast
in India. CAB made it clear that in either situation CAB would retain the
foreign 1V rights. By a subsequent letter CAB informed DD that they were D
agreeable to DD creating the host broadcaster signal and granting to it
the exclusive right for India without Star 1V getting it and that the charges
for the same would be US$ 800,000. Doordarshan replied quoting a figure
of Rs. 1 crore. CAB decided to sell the worldwide 1V rights to The Trans
World International (1WI) a foreign 1V network. On October 18, 1993
E
CAB informed Doordarshan that it was expecting an offer of at least Rs.
2 crores from DD and that they had received much higher offers from
agencies abroad including 1WI. However, it offered to DD the right to
telecast some of the matches directly and jointly With 1WI on condition
that DD would allow advertising time which CAB would at liberty to sell
to advertisers. DD rejected this offer stating that they would never agree F
to any joint production with 1WI. CAB then offered to sell to Doordarshan
the rights of telecast on payment of access fees. DD responded stating th

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A
B
THE SECRETARY, MINISTRY OF INFORMATION AND
'
.
BROADCASTING, GOVERNMENT OF INDIA AND ORS.
v.
CRICKET ASSOCIATION OF BENGAL AND ORS.
AND
VICE VERSA
FEBRUARY 9, 1995
[P.B. SAWANT, S. MOHAN AND B.P. JEEVAN REDDY, JJ.)
C
Constitution of India'-Articles 19( 1)( a), 19(2)--Freedom of speech and
expression-Right to telecast live events over airwaves through satellite uplink
facility-Whether part of freedom of speeclt-Held, per curiam; yes-Held further, as airwaves are public property the n'ght is subject to in-built restrictions.
Constitution of lnditr-Articles 19(1) (a), 19(2)-Whether the right to
D telecast events· includes right to agency of one's choice-Right to establish
private telecasting facilities-Held, (Per Majority) the organisers had a right
to sell the telecasting rights to any agen~eld, (Per minority) public
broadcasting is implicit in the right, private broadcasting is noHn the
absence of a licence, the organisers· had no right to telecast by an agency of
E their choice.
Constitution of Inditr-Articles 19(1) (a), 19(2), 14-Telegraph Act,
1885 S.4(1)-Reasonable restrictions on the right-Organisers of event selling
telecasting rights to foreign agency-Organisers not obtaining licence for.
telecast but paying charges for uplinking facility-No demand made for
F utilising frequencies controlled by government agencies-Government agencies refusing licence or permission to telecast-Whether refusal of licence to
telecast malafide and arbitrary-Held (per Majority) Doordarshan could not
reJu,se to telecast particularly since there was no lack of frequency; refusal
could be only on grounds specified in· Article 19 (2)--Per minority-The
G objection to a foreign agency telecasting even without a licence was not
. arbitrary or malafide.
Constitution of India Article 19(1) (a), 19(2)-Telecastingfrom Indian
soil- Whether monopoly in favour of Doordarshan violative of the freedom
of speeclt-Held, (per minority), Monopoly unacceptabl~leld (per curiam)
H control to be in hands of an autonomous public C01JJOration.
1036
_(
MIN. OF INFORMATION AND BROADCASTING v. CRICKEf ASSN. OF BENGAL 1037
Constitution of Indi~Article 19(1) (a}-Telecasting of events by orA
,Ir
ganisers through foreign agency-Whether the right is in fact a commercial
right traceable to Article 19 (1) (g)-He/d (Per Majority) organisers are not
_,
seeking to enforce a commercial right-Held, (per minority) the right is sought
really by the foreign agency and the ref ore question of violation of such right
under article 19 (l)(a) does not arise.
B
The Cricket Association of Bengal (CAB) organised an international
cricket tournament in which India and four other countries participated.
~ -I-.
The CAB wrote to Doordarsban (DD), the official television network, in
March 1993 inviting an offer for the amount they would be willing to pay
CAB for live television coverage of the cricket matches in either of the c
alternatives : where Doordarshan would create the host broadcaster
signal and undertake live telecast or where any other party would create
the host broadcaster signal and DD would purchase the rights to telecast
in India. CAB made it clear that in either situation CAB would retain the
foreign 1V rights. By a subsequent letter CAB informed DD that they were D
agreeable to DD creating the host broadcaster signal and granting to it
the exclusive right for India without Star 1V getting it and that the charges
for the same would be US$ 800,000. Doordarshan replied quoting a figure
of Rs. 1 crore. CAB decided to sell the worldwide 1V rights to The Trans
World International (1WI) a foreign 1V network. On October 18, 1993
E
CAB informed Doordarshan that it was expecting an offer of at least Rs.
2 crores from DD and that they had received much higher offers from
agencies abroad including 1WI. However, it offered to DD the right to
telecast some of the matches directly and jointly With 1WI on condition
that DD would allow advertising time which CAB would at liberty to sell
to advertisers. DD rejected this offer stating that they would never agree F
to any joint production with 1WI. CAB then offered to sell to Doordarshan
the rights of telecast on payment of access fees. DD responded stating that
CAB had to pay Rs. S lakhs per match as technical charges and that DD
would have exclusive rights for the signals generated. With no agreement
materialising, Videsh Sanchar Nigam Limited (VSNL) withdrew from 1WI
G
the uplink facility to the INTELSAT Satellite. The permission to import
equipment for the telecast was also withdrawn.
J.:-
CAB then approached the Calcutta High Court with a writ Petition
seeking a mandamus to the Government agencies and DD to ensure
uninterrupted telecast of the tournament. A Single Judge made an interim H
1038
SUPREME COURT REPORTS
[1995] 1 S.C.R.
A order directing the respondents to provide all assistance and cooperation
to the petitioners or their agency for.uninterruptedtelecast and restrai~ed
the respondents from tampering with, removing, seizing or dealing with
any equipment relating to the telecast. The equipment seized .by the Customs Authorities were directed to be released.
B
In the appeal by the government agencies, a Division Bench of the
High Court directed the CAB to pay DD immediately a sum of Rs. 5 lakhs
to enable DD' to immediately telecast the matches. It directed the Secretary,
Ministry of Telecommunication, Government of India, to consider and
grant provisional permission or licence under Telegraph Act to CAB or
C 1WI within three days from the date of the order.
D
The government agencies appealed. to this Hon'ble Court. A Writ
Petition was also filed by CAB. By the tiine matters was finally heard, the
matChes has been telecast pursuant to and in accordance with the interim
directions issued by this Court.
On beh~df of the CAB it was contended that there was implied
permission under Telegraph Act granted for uplinking facilities since
VSNL had already accepted the fees for the purpose; the action of DD in
refusing the telecast of the matches was malafide and authoritarian; the
E organiser in exercise of its freedom of speech was free to have an agency
of its choice for telecasting the matches - DD did not have and could not
claim a monopoly in this regard; if an application was made under Section
-4 of the Telegraph Act the appropriate authority was bound to grant the
same unless it could justify refusal of any of the condition under Article
19(2) of the Constitution.
F
The Union of India submitted that there was no licence granted to
CAB and there was no quesiion of any implied permission; in the absence
of a licence VSNL could not have granted any uplinking facility; the
Government of India had taken a policy decision that satellite uplinking
from Indian soil should be in the exclusive competence of the Government
G which in turn could market the rights to other parties; in as much as by
telecasting the event by selling its rights, CAB was asserting a right
relatable to commerce under Article 19(1)(g) and not under Article
19(l)(a); and that public interest demanded that foreign agencies should
not be freely permitted to set up telecasting facilities in India and that
H state monopoly was a· device to ensure use of the resource for public good.
\.
MIN. OF INFORMATION AND BROADCASTING v. CRICKEf ASSN. OF BENGAL 1039
Disposing of the appeals and writ petition, this Court
A
HELD: Per majority (Swant J. for himself anti Mohan J.):
.
t:l. The freedom of speech and expression incfndes right to acquire
info['.mation and to disseminate it. Freedom of speech and express.ion is
necessary, for self expre.ssion which is an important means of free conB
science and self fulfilment.
1.2. The right to communicate includes right to communicate
through any media that is available whether print or electronic or audio·
visual. The freedom of speech and expreS9ion includes freedom of the C
press. The freedom of the press in terms includes right to circulate and
also to determine the volume of such circulation. This freedom includes
the freedom to communicate or circulate one's opinion without interference to as large a population in the country as well as abroad as is
possible to reach. This fundamental right can be limited only by reasonable
restrictions under a law made for the purposes mentioned in Article 19(2) D
of the Constitution.
Romesh Thapar v. State of Madras, [1950) SCR 594; Brij Bhushan v.
State of Delhi, [1950) SCR 605; Hamdard Dawakhana (Wakf) Lal Kuan,
Delhi v. Union of India, (1960) 2 SCR 671; Sakal Papers (P) Ltd. v. Union E
of India, (962) 3 SCR 842; Bennett Coleman and Co. v. Union of India,
(1972} 2 ~CC 788; Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union
of India, [1985) 1 SCC 641; Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana, [1988) 3 SCC 410; S. Rangarajan v. P. Jagjivan Ram
and Ors., [1989) 2 SCC 574; Printers (Mysore) Ltd. v. Asst. Commercial Tax
Officer, [1994) 2 SCC 434 and Life Insurance Corporation of India v. F
Professor Manubhai D. Shah~ (1992) 3 SCC 637, referred to.
.
Ex parte Jackson (96) US 727; Lovell v. City of Griffin, (303) US 444;
Mutual Film Corporation v. Industrial Commission, 236," US 230 1915;
Burstyn v. Wilson, (343) US 495; Schenck v. United Stales, (249) US 47; G
Temiiniello v. Chicago, (93) L.ed. 1131: 337 US 1 (1949) and National
Broadcasting Company v. United States of America, 319 US 190-238: 87 L.ed.
(1344), referred to.
1.3 There is a built-in limitati(!n on the use of electronic media
because the airwaves are a public property and are controlled by the H
1040
SUPREME COURT REPORTS
[1995] 1 s.c.R:
A Government or are not available on account of the scarcity, costs and
· competition. .
Red Lion Broadcasting Co. v. Federal Communications Commission,
395 US 367: 23 L. ed. 2d 371; Columbia Brpadcasting System v. Democratic
· National Committee, 412 US 94: 36 L.Ed. td 772; Federal Communications
B Commission v. WNCN Listeners Guild 450 US 582: 67 L.Ed. 2d 521; City of
Los Angeles & Depaltment of Water and Power v. Prefe"ed Communication
Inc., 476 US 488: 90 L.ed. 2d 480; FCC v. Pacifica Foundation, 438 US 726
and Third Television Case, 57 B Verf GE 295, (1981), referred to.
Civil Liberties & Human Rights authored by David Feldman; Eric
C Barendt, Broadcasting Law, 1993 Edn.; Lee Bol#nger, Freedom of the Press
and Public Access; Rationale of Public Regulation of Media and Df!mpcracy.
and the Mass Media, (C~1_11bridge, 1990), referred to.
1.4 The rest:rictions which the electronic media suffers in addition
D to those suffered by the print media, are that (i) the airwaves are a public
property and they have to be used for the benefit of the society at large,
(ii) the frequencies are limited and (iii) media is subject to pre-censorship.
The other limitation, viz., the reasonable restrictions imposed by law made
for the purposes mentioned in Article 19 (2) is common to all. the media.
E
1.5. If the right to freedom of speech and expression includes the
1
ri~t to disseminate information to· as wide a section of the population as
is po.ssible, the access which enables the right to be so exercised is also an
integral part of the said right.
2.1. To have a representative central agency to ensu~ the viewers' .
F right to be informed adequately and truthfully is a part of the right of the
viewers under Article 19(1)(a).
2.2. Since the airwaves/frequencies are a public property and are also
limited, they have to be used in the best interest of the society and this can
G be done either by a central authority by establishing its own broadcasting
network or regulating the grant of licences to other agencies, including the
privaJe agencies.
'
2.3 The Central Government shall take immediate steps to establish
an independent autonomous public authority representative of all sections
H and interests in the society to control and regulate the use of the airwaves.
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL 1041
2.4 The contention that on that account the restrictions to be imA
posed on the right under Article 19(1)(a) should be in addition to those
/'T
permissible under Article 19(2) and dictated by the use of public resources
in the best interests of the society at large, is to misconceive both the
content of the freedom of speech and expression and the problems posed
by the element of public property in, and the alleged scarcity of, the B
frequencies as well as by the wider reach of the media.
3.1 What CAB was claiming was Got a commercial right to exploit
the event.
3.2 when a telecaster desires to telecast a sporting event, the free c
speech element is not absent from his right. The degree of the element will
depend upon the character of the telecaster who claims the right.
3.3 If while pursuing their objective of popularising the sports by
selecting the best available means sports organisers incidentally earn some
revenue, that will not convert them either into commercial organisations D
or the right claimed by them to explore the said means, into a commercial
right or interest.
4.1. Doordarshan could not refuse to telecast the event except for
reasons of non-availability of frequencies or for grounds available under
Article 19(2) or for considerations of public interest involved in the use of E
the frequencies as public property.
4.2. The fact that Doordarshan was prepared to telecast the events
only on its terms shows that the frequency was available. Hence, scarcity
of frequencies or public interest cannot be pressed as grounds for refusing F
to telecast.
4.3. The organisers of the events had every right to create terrestrial
signals of their event and to sell it to whomsoever they thought best so long
as such creation of the signal and the sale thereof was not violative of any
law made under Article 19(2) and was. not an abuse o~ t~e frequencies G
which are a public property.
~
5. The decision to form the nodal m~istry to coordinate the activities
of all the concerned ministries and· departments was unexceptionable. But
the time of taking the decision and its background was not without its
signiticance. H~wever, there was no adequate material on record to estab- H
.. 1042
SUPREME COURT REPORTS
"(1995) 1 S.C.R.
A lish a nexus between the MIB/DD and the aforesaid actions of the other
authorities.
6. The order of the High Court was emi(!ently in the interests of the
viewers whatever its merits on the other aspects of the matter. The High
Court would apportion between the CAB and the DD the revenues
B generated by the event after hearing the parties.
c
Per Jeevan Reddy, J. (Broadly agreeing with the majority view) :
1.1 Public broadcasting is implicit in Article 19(l)(a), private broadcasting is not.
1.2 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 inasmuch as only the privileged few - powerful
D economic, commercial and political interests • would come to dominate the
media.
1.3 The right to establish the operate a private 1V station does not
flow from Article 19(l)(a); such a right is not implicit in it. The question
whether such right should be given to the citizens of lhis country is a
E matter of policy for the Parliament.
Life Insurance Corporation of India v. Manubhai D. Shah, [1992) 3
SCC 637 and Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana,
[1988) 3 sec 410, referred to.
F
Burstyn v. Wilson 343 US 495; Los Angeles v. Prefe"ed Communications, 476 U.S. 488 = 99 L.ed. 2d 480; Columbia Broadcasting System v.
Democratic National Committee, 412 US 94 : 36 L.Ed. 2d 371; The Third
TelevisiOn Case, 57 B Verf GE 295 (1981); Decision 59/60 (1960)
Giurisprudenza Constituzionale 759; Decision 225/74 (1974) Giurisprudenza
G Constitutuzionale, 1975; Decision 202176 (1976) Giurizprudenza Constituzionale 1276; Informationsverein Lentia v. Austria • 15 Human Rights
Law Journal 31 ·judgment dated 24th November, 1993; N.B.C. v. U.S. (319
US 190 (1943); Red Lion Broadcasting Company v. F.C.C. 395 US 367: 23£
Ed. 2d. 37); F.C.C. v. National Citizens Committee for Broadcasting, 436 US
775; Miami Herald Publishing Company v. Tomi/lo, (1974-418 U.S.241); New
H York Times v. United States, [1971) 403 U.S. 713; United States v. Nixon,
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL 1043
(1974) 418 U.S. 683; Bowman v. Secular Society Ltd., (1917) A.C. 406; A
Castells v. Spain, (14 EHRR 445) and Mutual Film Corp. v. Industrial Com.
,_,1--r
of Ohio, 236 US 230 : 59 L.ed. 442, referred to.
2.1 Monopoly of the 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 B
and expression as is permitted by clause (6) of Article 19 vis-a-vis the right
guaranteed by Article 19(1)(g).
-\....
2.2. The broadcasting media should be under the control of the
public as distinct from Government. This is the command implicit in c
Article 19(1)(a). It should be operated by a public statutory corporation
whose composition must be such as to ensure its impartiality in political,
economic and social matters and on all other public issues. It 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. D
..._.,.__
2.3. 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
E
of speech is assured.
3. The right to telecast the matches, including the right to import,
instal and operate the requisite equipment, was 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 licence/permission F
to such foreign agencies did not arise.
4.1 The charge of malafides or for that matter, the charge of arbitrary
or authoritarian conduct levelled against the governmental al_lthorities is
unacceptable.
4.2 Neither the CAB nor its foreign agent had applied for or obtained G
the licence/permission under Section 4(1). The permissions granted by
~
other departments were no substitute for the licence under the proviso to
Section 4(1).
4.3 In the absence of such a licence, the CAB had no right in law to H
1044
SUPREME COURT REPORTS
[1995] 1 S.C.R.
A have its matches telecast by an agency of its choice.
B
c
D
E
F
G
H
4.4. The objection to a foreign agency coming in and telecasting such
events without even obtaining a licence under the proviso to Secti"on ;~(1)
of the Telegraph Act was ma/afide or arbitrary.
4.5 There was nothing to show that seizure of imported equipment
by customs authorities was at the instance of Doordarshan.
CIVIL APPELLATE/ORIGINAL JURISDICTION: Civil Appeal
Nos. 1429-30of1995.
From the Judgment and Order dated' 12.11.93 of the Calcutta High
,Court in F.MA.T. Nil of 1993.
WITH
Writ Petition (C) No. 836 of 1993.
(Under Article 32 of the Constitution of India.)
Dipankar Gupta, Harish N. Salve, Aron Jaitley, Kapil Sibal, Rajiv
Mehta, Kailash Vasdev, Ms. Meen~hi Grover, U.N. Banerjee, B.V.
Desai, M. Sharma, P. Malik, Ms. Radha Rangaswamy and Naveen Chawla
for the appearing parties.
The Judgments of the Court were delivered by
SAWANT, J. Leave granted.
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 !Jy the Government or ·
the Government agencies like the Videsh SanChar Nigam Limited (VSNL)
or Doordarshan (DD)?
\
..,..i--
-+---
~
~
..
y
J
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSI'. OF BE:\GAL [SA WANT, J.J 1045
(3) Can such an organiser be prevented from creating the terrestrial A
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 B
Information and Broadcasting (MIB) for (a) creating terrestrial signal of
the event and (b) granting facilities of uplinking to a satellite not owned
or controlled by the Government or its agencies?
On answers to these questions depend the answers to the incidental
questions such as (i) whether the Government or the Government agencies C
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 D
for telecasting engaged by him, to take the signal only from the Government or Government agency and telecast it only with its permission or
jointly with it.
2. 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 whi~h 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 requisite electronic mechanism such as the
audio-visual recorder. This stage may be described as the recording stage.
E
F
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. G
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 H
1046
SUPREME COURT REPORTS
[1995) 1 S.C.R.
A State, friendly relations with foreign State, public order, decency 0r
morality or in relation to contempt of co.urt, defamation or incitement to
an offence as laid down under Article 19 (2) of the Constitution. Although,
therefore, it is not possible to make law for prohibiting the recording of
spontaneous, accidental or natural events, it is possible for the reasons
B 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
c production of an event and its recording can~ot 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
D 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.
E
3. Since in the present case, what is involved is the right to livetelecast 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
F 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.
G
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 tum relays it though 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
H satellite by means of the parabolic dish antenna and relays them to all those
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MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL [SA WANT, J.) 1047
T.V. screens which are linked to his cable. He also relays the recorded file A
programmes or cassettes through the cable to the cable-linked viewers. In
this case, there is no restriction on his !eceiving 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 B
occurring in any part of the country or the world live through the frequen~
cies if his dish antenna can receive the same. T~e 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 C
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 D
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 unE
limited 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
F
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 G
cameras and the earth station or the camera 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. H
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[1995) 1 S.C.R.
A 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).
B
c
4. 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.
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
D journal 'Cross Roads'. The said order stated that it was being passed for
the purpose 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 ~xpression. He also challenged
the validity of Section 9 (1-A) of the impugned Act. The majority of the
E 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. Supreme Court viz., (i) Ex parte Jackson (96 US 727) and (ii)
Lovell v. City of Griffin (303 US 444) and quoted with approval the
F following passage therefrom : " Liberty of circulation is as essential to that
freedom as the liberty of publication. Indeed, without circulation the
publication wo'.lld 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
entry into or the circulation, sale or distribution in the Province of Madras
G 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
H that state of tranquility which prevails among the members of a political
(
MIN. OF INFORMATION AND BROADCASTING v. CRICKET ASSN. OF BENGAL (SA WANT, J.) 1049
society as a result of the internal regulations enforced by the Government A
which they have established. The Act was passed by the Provincial Legislature under Section 100 of the Government of India Act, 1935, read with
Entry I of List II of the Seventh Schedule 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 securing 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
B
c
or maintenance of public order would include the security of the State D
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 riot severable. So long as the possibility of its being E
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 applied to cases where
no such danger could arise, cannot be held to be constitutional and valid
to any extent.
F
The above view taken by this Court was reiterated in Brij Bhushan
&Anr. v. The State of Delhi, [1950] SCR 605 where Section 7 (1) (c) of the
East Punjab Public Safety Act, 1949 as extended to the Province of Delhi, G
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 . H
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SUPREME COURT REPORTS
[1995] 1 S.C.R.
A · . scrutiny, was held as unconstitutional 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
-f°""..
overthrow the State within the meaning of the then saving provision contained in Article 19 (2). The Court further unanimously held that the
B 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).
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
C and Magic Remedies (Objectionable Advertisements) Act, 1954 was the
prevention of self-medication and self-treatment by prohibiting instruments
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 morcllity and decency. The Court further held that advertisement is
D no doubt a form of speech but 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 relace 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
E 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 (l)(a) of the Constitution. The scope and object of the Act, its true
nature and character was not interference with the right of freedom of
F 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
G to believe, contained any advertisement contravening the provisions of the
Act imposed an unreasonable restriction on the fundamental rights of the
petitioner and was unconstitutional. 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 ~
H of the powers· of seizure and detention· as had been provided by the
f
I
MIN. OF INFORMATION AND BROADCASI1NG v. CRICKET ASSN. Ol'BENGAL [SA WANT, J.] 1051
legislature in other statutes. However, if this operation was excised from A
,.,,:·1·
the section the remaining portion would be unintelligible and could not be
upheld.
In Sakal Papers (P) Ltd. & Ors. v. The Union of India, [1962) 3 SCR
842 what fell for consideration was the Newspaper (Price and Page) Act, B
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 maximuin number of pages that might be
published by the newspaper according to the price charged and prescribing c
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 freedom of speech and expression guaranteed by Article
19(1) (a) included the freedom of the press. For propagating his ideas a D
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 E
Court also 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 regulating the comF
-~
mercial 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, l!-S already stated,
is directly related to the circulation of a newspaper. Since circulaG
..
tion 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
----r
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 H
1052
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SUPREME COURT REPORTS
[1995] 1 S.C.R.
object of enabling what are termed the smaller newspapers to
secure larger circulation by provisions which Without disguise are
aimed at restricting the circulation of what are termed the larger
papers with better financial strength.