In K.A. Abbas v. Union of India, [1971] 2 SCR 446 a Constitution Bench of this court considered important ques- tions relating to pre-censorship of cinematograph films in relation to the fundamental right of freedom of speech and expression. K.A. Abbas, a noted Indian journalist and film producer produced a short documentary film called "A tale of Four Cities". In that film he sought to contrast the self indulgent life of the rich in Metropolitan cities with the squalor and destitution of labouring masses who helped to construct the imposing buildings and complexes utilised by the rich. The film also goes on to explore the theme of exploitation of women by men, dealing in particular prosti- tution. Abbas applied to the Board of Film Censors for a 'U' certificate, permitting unrestricted exhibition of the film. He was informed by the regional officer that the Examining Committee had provisionally concluded that the film should be restricted to adults. The Revising Committee concurred in this result, whereupon Abbas, after exchanging correspond- ence with the Board, appealed to the Central Government. The Government decided to grant 'U' certificate provided that the scenes in the red light district were deleted from the film. Abbas challenged the action of the Board mainly on four issues out of which two did not survive when the Solic- itor General stated before the Court that the Government would set on foot legislation to effectuate the policies at the earliest possible date. The two issues which survived thereupon were: (a) that pre-censorship itself cannot be tolerated under the freedom of speech and expression; (b) that even if it were a legitimate restraint on the freedom, it must be exercised on very definite principles which leave no room for arbitrary action.
With regard to the power of pre-censorship, Hidayatul- lah, C.J., observed (at 473-74):
"The task of the censor is extremely delicate ..... The standards that we set out for our censors must make a substantial allowance in favour of freedom thus leaving a vast area for creative art to interpret life and society with some of its foibles along with what is good. We must not look upon such human relationships as banned in toto and for ever from human thought and must give scope for talent to put them before society. The requirements of art and litera- ture include within themselves a comprehensive, view of social life and not only in its ideal form and the line is to be drawn where the average man moral man begins to feel embarassed or disgusted at a naked portrayal of life without the redeeming touch of art or genius of social value. If the depraved begins to see in these things more than what an average person would, in much the same way as it is wrongly said, a Frenchman sees a woman's legs in everything, it cannot be helped. In our scheme of things ideas having redeeming social or artistic value must also have impor- tance and protection for their growth." Recently, Sabyasachi Mukharji, J., in Ramesh v. Union of India, [1988] 1 SCC 868 which is popularly called "TAMAS" case laid down the standard of judging the effect of the words or expression used in the movie. The learned Judge quoting with approval of the observation of Vivian Bose, J., as he then was, in the Nagpur High Court in the case of Bhagwati Charun Shukla v. Provincial Govern- ment, AIR 1947 Nag 1 (at 676):
"That the effect of the words must be judged from the standards of reasonable, strong minded, firm and courageous men, and not those of weak and vacillating. This in our opinion is the correct approach in judging the effect of exhibition of a film or of reading a Book. It is the standard of ordinary reasona- ble man or as they say in English law, "the man on the top of a Clampham omnibus. "
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 pru- dence and not .that of an out of the ordinary or hypersensi- tive man. We, however, wish to add a word more. The Censors 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 assimi-lation. Our country has had the distinction of giving birth to a galaxy of great sages and thinkers. The great thinkers and sages through their life and conduct provided principles for people to follow the path of fight conduct. There have been continuous efforts at rediscovery and reiteration of those principles. Adi-guru Shankaracharya, Ramanujacharya, Madhwacharya, Chaitanya Maha Prabhu, Swami Ram Krishan Paramhansa, Guru Nanak Sant Kabir and Mahatma Gandhi, have all enlightened our path. If one prefers to go yet further back, he will find "TIRUKKURAL" the ethical code from Tiruv- alluvar teaching which is "a general human morality and wisdom." Besides, we have the concept of "Dharam" (right- eousness in every respect) a unique contribution of Indian civilization to humanity of the world. These are the bedrock of our civilization and should not be allowed to be shaken by unethical standards. We do not, however, mean that the Censors should have an orthodox or conservative outlook. Far from it, they must be responsive to social change and they must go with the current climate. All we wish to state is that 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. Krishna Iyer, J., in Rajkapoor v. Laxman, [1980] 2 SCR 512 in words meaningful expressed similar thought. The learned Judge said (at 5 17):
"The ultimate censorious power over the Censors belongs to the people and by indifference, laxity or abetment, pictures which pollute public morals are liberally certified, the legislation, meant by Parlia- ment to protect people's good morals, may be sabotaged by statutory enemies within."
Supreme Court of India
Life Insurance Corpn. Of India And ... vs Prof. Manubhai D. Shah Etc. Etc on 22 July, 1992
We may now refer to the case law on the subject. In Romesh Tappar v. The State of Madras, [1950] SCR 495 this Court held that the freedom of speech and expression includes freedom of propagation of ideas and this freedom is ensured by the freedom of circulation. It pointed out that freedom of speech and expression are the foundation of all democratic organisations and are essential for the proper functioning of the processes of democracy. This view was reiterated in Sakal Papers Pvt. Ltd. (supra) wherein this Court observed that the freedom of speech and expression guaranteed by Article 19(1)(a) includes 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 of mouth or by writing. In Indian Express Newspapers (Bombay) Pvt. Ltd. & Ors. etc. etc. v. Union of India & Ors. etc. etc., [1985] 2 SCR 287 this Court after pointing out that communication needs in a democratic society should be met be the extention of specific rights e.g., the right to be informed, the right to inform, the right to privacy, the right to participate in public communications, the right to communicate, etc., proceeded to observe at page 316 as follow :
"In today's free world freedom of Press is the heart of social and political intercourse. The press has now assumed the role of the public educator making formal and non formal education possible in large scale particularly in the developing world where television and other kinds of modern communication are not still available for all sections of society. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments. Newspaper being surveyors of news and views having a bearing on public administration very often carry material which would not be palatable to Governments and other authorities. The authors of the article which are published in the newspapers have to be critical of the action of the Government in order to expose its weaknesses. Such articles tend to become an irritant or even a threat to power."
This Court pointed out that the constitutions guarantee of the freedom of speech and expression is not so much for the benefit of the press as it is for the benefit of the public. The people have a right to be informed of the developments that take place in a democratic process and the press plays a vital role in disseminating this information. Neither the Government nor any instrumentality of the Government or any public sector undertaking run with the help of public funds can shy away from articles which expose weaknesses in its functioning and which is given cases pose a threat to their power by attempting to create obstacles in the information percolating to the members of the community. In Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghtana & Ors., [1988] 3 SCC 410 a public interest litigation was commenced under Article 226 of the constitution to restrain the authorities from telecasting the serial 'Honi Anhony' on the plea that it was likely to spread false and blind beliefs and superstition amongst the members of the public. The high Court by an interim injunction restrained the authorities from telecasting the serial which led the producer thereof to approach this Court under Article 136 of the Constitution. This Court while allowing the appeal held that the right of a citizen to exhibit films on the Doordarshan subject to the conditions imposed by the Doordarshan being a part of the fundamental right of freedom of expression could be curtailed only under circumstances set out in Article 19(2) and in no other manner. The right to exhibit the film was similar to the right of a citizen to publish his views through any other media such as newspapers, magazines, advertisement hoardings, etc. More recently in S. Rangarajan v. P. Jagjivan Ram, [1989] 2 SCC 574 this Court was required to consider if the Madras High Court was justified in revoking the 'U' certificate issued to a Tamil Film "Ore Oru Gramathile" for public exhibition. The fundamental point urged before this Court was based on the freedom enshrined in Article 19(1)(a). This court after pointing out the difference in language between the U.S. First Amendment clause and Article 19(1)(a), proceeded to observe in paragraph 10 as under :
"Movie doubtless enjoys the guarantee under Article 19(1)(a) but there is one significant difference between the movie and other modes of communication. The movie cannot function in a free market place like the newspaper, magazine or advertisement. Movie motivates thought and action and assures a high degree of attention and retention. It makes its impact simultaneously arousing the visual and aerial senses. The focussing of an intense light on a screen with the dramatizing of facts and opinion makes the ideas more effective. The combination of act and speech, sight and sound in semi-darkness of the theatre with elimination of all distracting ideas will have an impact in the minds of spectators. In some cases, it will have a complete and immediate influence on, and appeal for everyone who sees it. In view of the scientific improvements in photography and production the present movie is a powerful means of communication."
This Court emphasised that the freedom of expression 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 the right to propagate or publish opinion. Concluding the discussion this Court observed in paragraph 53 as under : "We end here as we began on this topic. 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(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 expression. We must practice tolerance to the views of others. Intolerance is as much dangerous to democracy as to the person himself."
From the above resume of the case law it is evident that 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 question then is whether the respondent of the first appeal could as a matter of right insist that the LIC print his rejoinder in their magazine. The LIC denied this right on the ground that their magazine was an in-house magazine circulated amongst subscribers who were policy holders, officer, employees and agents of the corporation. The High Court rejected this contention on two grounds in the main, viz., (i) it is available to anyone on payment of subscription and (ii) members of the public are invited to contribute articles for publication. Even on the assumption that it is an in-housing magazine the High Court observed 'under the pretext and guise of publishing a house magazine, the Corporation cannot violate the fundamental rights of the petitioner if he has any'. According to the High Court a house magazine cannot claim any privilege against the fundamental rights of a citizen. No serious exception can be taken to this approach which commended to the High Court. In the first place it must be remembered that it is not the case of the LIC that the respondent's study paper contains any material which can be branded as offensive, in the sense that it would fall within anyone of the restrictive clauses of Article 19(2). The study paper is a research document containing statistical information to support the conclusions reached by the author. The underlying idea is to point out that unduly high premiums are charged by the LIC from those taking out life insurance policies thereby denying access to insurance coverage to a vast majority of people who cannot afford to pay the high premiums. The forwarding letter of 10th July, 1978 would show that copies of the study paper were circulated to a few informed citizens with a request to disseminate the contents thereof through articles, speeches, etc, Mr. N.C. Krishnan wrote a counter 'LIC and its policy holders' which appeared in the Hindu of 6th November, 1978. This article begins by adverting to the study paper circulated by the respondent. The respondent prepared a rejoinder 'Raw deal for Policy holders' which too was published in the Hindu of 4th December, 1978. The LIC then printed and published the article of Mr. Krishnan in its magazine Yogakshema (December 1978 issue). On the respondent learning about the same, he requested that in fairness his rejoinder which was already published in the Hindu should also be published in the said magazine to present a complete picture to the reader. The LIC refused to accede to this request and hence this litigation.
There is no dispute that the LIC is a State within the meaning of Article 12 of the Constitution, vide Sukhdev Singh & others v. Bhagatram Sardar Singh, [1975] 1 SCC 421. It is created under an Act, namely, the Life Insurance Corporation Act, 1956, and is charged with the duty 'to carry on Life Insurance business, whether in or outside India'. It is further charged with the duty to so exercise its powers under the Act as 'to secure that life insurance business is developed to the best advantage of the community' [Section 6(1)]. It is, therefore, obvious that the LIC must 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 effort 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 premium rates were unduly high when they could be low if the LIC avoided wasteful indulgences. The endeavour was to enlighten the community of the drawbacks and shortcomings of the corporation and to pin-point the areas where improvement was needed and was possible. With a view to stimulating a debate a study paper was prepared and circulated to which Mr. Krishnan, a member of LIC, countered. Since Mr. Krishnan had tried to demolish some of the points raised by the respondent in his study paper, the respondent had publish a rejoinder in the Hindu. However, the LIC refused to publish it in their magazine financed from public funds. Such an attitude on the part of the LIC can be described as both unfair and unreasonable; unfair because fairness demanded that both view points were placed before the readers, however limited be their number, to enable them to draw their own conclusions and unreasonable because there was no logic or proper justification for refusing publication. A 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. It is difficult to understand why the LIC should feel shy of printing the rejoinder if it has nothing to fear. By denying information to the consumers as well as other subscribers the LIC cannot be said to be acting in the best interest of the community. It is not the case of LIC that the rejoinder to Mr. Krishnan's article is in any manner prejudicial to the members of the community or that it is based on imaginery or concocted material. That being so on the fairness doctrine the LIC was under an obligation to publish the rejoinder since it had published Mr. Krishnan's counter to the study paper. The respondent's fundamental right of 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 a complete picture before them and not a one sided or distorted one.
For the above reasons we do not find any infirmity in the view taken by the High Court on the LIC's obligation to print the rejoinder in its magazine. We must clarify that we should not be understood as laying down an absolute proposition that merely because the LIC is a State and is running a magazine with public funds it is under an obligation to print any matter that any informed citizen may forward for publication. The view that we are taking is in the peculiar facts of the case.
It was contended by the learned counsel for the LIC that since the rejoinder of the respondent is to Mr. Krishnan's article printed in December 1978, the same has become stale by passage of time and has lost its relevance and hence this Court should annul the High Court's directive to the LIC to print and publish the same in its magazine. Counsel for the respondent submitted that the issued raised by the respondent regarding high premium rates is still live as the situation has not improved from what it was in 1978. It may be that the statistical information in the rejoinder may be outdated but, contends the learned counsel, the issue that the LIC is charging unduly high premium rates by refusing to prune its avoidable expenses, is still relevant. He submits that if the court acedes to the submission of the learned counsel for the LIC it would result in placing a premium on the recalcitrant attitude of the LIC. We see force in this submission. By refusing to print and publish the rejoinder the LIC had violated the respondent's fundamental right. A wrong doer cannot be heard to say that its persistent refusal to print and publish the article must yield the desired result, namely to frustrate the respondent. The Court must be careful to see that it does not, even unwittingly, aid the effort to defeat a party's right Besides, if the respondent thinks that the issued is live and relevant and desires its publication, we thing we must accept his assessment. However, in order that the reader known and appreciates why the rejoinder has appeared after such long years we direct that the LIC will, while publishing the rejoinder as directed by the High Court, print an explanation and an apology for the delay. With this modification, the LIC's appeal must fail.
That takes us to the appeal involving Doordarshan's refusal to telecast the documentary "Beyond Genocide" based on the Bhopal Gas Disaster. There is no dispute that this film own the Golden Lotus award as the best non-feature film of 1987. Yet, as the judgment of the High Court reveals, Doordarshan refused to telecast it on the ground that "the contents being outdated do not have relevance now for the telecast". It was emphasised that since the parameters applied for selection of a film for national award were different from those applied by the Film Selection Committee of Doordarshan when it comes to selecting a film for telecast, the mere fact that a film has won a national award is not sufficient for all national award winning films are not ipso facto fit for telecast on television. It was said that unless a film is socially relevant and fair and balanced it is not cleared for telecast. The film in question did not satisfy this broad norm since it was found lacking in moderation and restraint and hence it was not cleared for telecast. Lastly it was said that since claims for compensation of the victims of the tragedy were pending and political parties were raising various issues, it was though inexpedient to screen the film.
In th United States prior restraint is generally regarded to be at serious odds with the First Amendment and carries a heavy presumption against its constitutionality and the authorities imposing the same have to discharge a heavy burden on demonstrating its justification (See New York Times Company v. The United States, 403 U.S. 713. Traditionally prior restraints. regardless of their from, are frowned upon as threats to freedom of expression since they contain within themselves forces which if released have the potential for imposing arbitrary and at times irrational decisions. Since the function of any Board of Film Censors is to censor it, it immediately conflicts with the Article 19(1) (a) and has to be justified as falling within permissible restraint under Article 19(2) of the Constitution. A similar question came up before this Court in K.A. Abbas v. The Union of India, [1971] 2 SCR 446 wherein Chief Justice Hidayatullah exhaustively dealt with the question of prior restraint in the context of the provisions of the Constitution and the Act. The learned Chief Justice after setting out the various provisions to which we have already adverted posed the questions; `How far can these restrictions go and how are these to be imposed'? The documentary film ` A tale of four cities' made by K.A. Abbas portrayed the contrast between the luxuious life of the rich and the squalor and poverty of the poor in the four principal cities of the country and included therein shots from the red light district of Bombay showing scantily dressed women soliciting customers by standing near the doors and windows. The Board of Film Censors granted `A' certificate to the film and refused the `U' certificate sought by Abbas. This was on the ground that the film dealt with relations between sexes in such a manner as to depict immoral traffic in women and because the film contained incidents unsuitable for young persons. Abbas challenged the Board's decision on the ground (i) that pre-censorship cannot be tolerated as it was in violation of the freedom of speech and expression and
(ii) even if it is considered legitimate it must be exercised on well-defined principles leaving no room for arbitrary decisions. This Court held that censorship in Indian had full justification in the field of exhibition of films since it was in the interest of society and if the legitimate power in abused it can be struck down. While dealing with the grounds on which the `U' certificate was refused, the learned Chief Justice observed: "The task of the censor is extremely delicate and his duties cannot be the subject of an exhaustive set of commands established by prior ratiocination. But direction is necessary of him so that he does not sweep within the terms of the directions vast areas of thought, speech and expression of artistic quality and social purpose and interest. Our standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read. The standards that we set for our censors must make a substantial allowance in favour of freedom thus leaving a vast area for creative art to interpret life and society with some of its foibles along with what is good. We must not look upon such human relationships as banned in toto and for ever from human thought and must give scope for talent to put them before society. The requirements of art and literature include within themselves a comprehensive view of social life and not only in its ideal from and the line is to be drawn where the average man moral man begins to feel embarrassed or disgusted at a naked portrayal of life without the redeeming touch of art or genius or social value. If the depraved begins to see in these things more than what an average person would, in much the same way, as it is wrongly said, a Frenchman sees a woman's legs in everything, it cannot be helped. In our scheme of things ideas having redeeming social or artistic value must also have importance and protection for their growth."
In Ramesh v. The union of India, [1988] 1 SCC 668 petition was filed to restrain the screening of the serial `Tamas' on the ground that it violated Articles 21 and 25 of the Constitution and Section 5B of the Act. Based on the novel of Bhisma Sahni this serial depicted the events that took place in Lahore immediately before the partition of the country. Two Judges of the Bombay High Court saw the serial and rejected the contention that it propagates the cult of violence. This Court after referring to the observations of Hidayatullah, CJ. in K.A. Abbas proceeded to state as under: "It is no doubt true that the motion picture is a powerful instrument with a much stronger impact on the visual and aural sense of the spectators than any other medium of communication; likewise, it is also true that the television, the range of which has vastly developed in our country in the past few years, now reaches out to the remotest corners of the country catering to the not so sophisticated, literary or educated masses of people living in distant villages. But the argument overlooks that the potency of the motion picture is as much for good as for evil. If some scenes of violence, some nuances of expression or some events in the film can stir up certain feelings in the spectator, an equally deep strong, lasting and beneficial impression can be conveyed by scenes revealing the machinations of selfish interest, scenes depicting mutual respect and tolerance, scenes showing comradeship, help and kindness which transcend the barriers of religion. Unfortunately, modern developments both in the field of cinema as well as in the field of national and international politics have rendered it inevitable for people to face realities of internecine conflicts, inter alia, in the name of religion. Even contemporary news bulletins very often carry scenes of pitched battle or violence. What is necessary sometimes is to penetrate behind the scenes and analyse the causes of such conflicts. The attempt of the author in this film is to draw a lesson from our country's past history, expose the motives of persons who operate behind the scenes to generate and foment conflicts and to emphasise the desire of persons to live in amity and the need for them to rise above religious barriers and treat one another with kindness, sympathy and affection. It is possible only for a motion picture to convey such a message in depth and if it is able to do this, it will be an achievement of great social value." This Court upheld the finding of the Bombay high Court that the serial viewed in its entirety is capable of creating a lasting impression of this massage of peace and co-existence and there is no fear of the people being obsessed, overwhelmed or carried away by scenes of violence of fanaticism shown in the film.
As already pointed out earlier this Court in S. Rangarajan's case (supra) emphasised that 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. Although movie enjoys that freedom it must be remembered that movie is a powerful mode of communication and has the capacity to make a profound impact on the minds of the viewers and it is, therefore, essential to ensure that the message it conveys is not harmful to the society or even a section of the society. Censorship by prior restraint, therefore, seems justified for the protection 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 5B of the Act. But such censorship must be reasonable and must answer the test of Article 14 of the Constitution. In this decision the fundamental difference between the U.S. First Amendment and the freedom conferred by 19(1)(a), subject to Article 19(2) has been highlighted and we need not dwell on the same.
Every right has a corresponding duty or obligation and so has the fundamental right of speech and expression. The freedom conferred by Article 19(1)(a) is, therefore, not absolute as perhaps in the case of the U.S. First Amendment; it carries with it certain responsibilities towards fellow citizens and society at large. A citizen who exercises this right must remain conscious that his fellow citizen too has a similar right. Therefore, the right must be so exercised as not to come to direct conflict with the right of another citizen. It must, therefore, be so exercised as not to jeopardise the right of another or clash with the paramount interest of the State or the community at large. In India, therefore, our Constitution recognises the need to place reasonable restrictions on grounds specified by Article 19(2) and section 5B of the Act on the exercise of the right of speech and expression. It is for this reason that this Court has recognised the need for prior restraint 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 on the exercise of the fundamental right under Article 19(1)(a), such restrictions are bound to be viewed as anathema, in that, they are in the nature of curbs or limitations on the exercise of right and are, therefore, bound to be viewed with suspicion, thereby throwing a heavy burden on the authorities that seek to impose them. The burden would therefore, heavily lie on the authorities that seek to impose them to show that the restrictions are reasonable are permissible in law.
From the above discussion it follows that unquestionably the respondent has a right to convey his perception of the gas disaster in Bhopal through the documentary film prepared by him. This film not only won the Golden Lotus award but was also granted the `U' certificate by the censors. Even according to the petitioners `the documentary is an appraisal of what exactly transpired in Bhopal on the date the gas leak occurred. The petitioners, therefore, concede that the film faithfully brings out the events that took place at Bhopal on that fateful night. Therefore, the respondent cannot be accused of having distorted the events subsequent to the disaster. How than can it be alleged that it is not fair and balanced or lacks in moderation and restraint? It is nowhere stated which part of the film lacks moderation and/or restraint nor is it shown how the film can be described as not fair and balanced. Merely because it is critical of the State Government, perhaps because of its incapacity to cope with unprecedented situation, is no reason to deny selection and publication of the film. So also pendency of claims for compensation does not render the matter subjudice so as to shut out the entire film from the community. In fact the community was keen to know what actually has happened, what is happening, what remedial measures the State Authorities are taking and what are the likely consequences of the gas leak. To bring out the inadequacy of the State effort or the indifference of the officers, etc., cannot amount to an attack on any political party if the criticism is genuine and objective and made in good faith. If the norms for appraisal was the same as applied by the censors while granting the `U' certificate, it is difficult to understand how Doordarshan could refuse to exhibit it. It is not that it was not sent for being telecast soon after the disaster that one could say that it is outdated or has lost relevance. It is even today of relevance and the press has been writing about it periodically. The learned Additional Solicitor General was not able to point out how it could be said that the film was not consistent with accepted norms setout earlier. Doordarshan being a State controlled agency funded by public funds could not have denied access to the screen to the respondent except on valid grounds. We, therefore, see no reason to interfere with the High Court order.
Supreme Court of India
The Secretary, Ministry Of ... vs Cricket Association Of Bengal & ... on 9 February, 1995
Equivalent citations: 1995 AIR 1236, 1995 SCC (2) 161
I (a).Game of cricket, like any other sports event,provides entertainment. Providing entertainment is implied in freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution subject to this rider that where speech and conduct are joined in a single course of action, the free speech values must be balanced against competing societal interests, The petitioners (CAB and BCCI) therefore have a right to organise cricket matches in India, whether with or without the participation of foreign teams. But what they are now seeking is a license to telecast their matches through an agency of their choice - a foreign agency in both the cases - and through telecasting equipment brought in by such foreign agency from outside the country. In the case of Hero Cup Matches organised by CAB, they wanted uplinking facility to INTELSAT through the government agency VSNL also. In the case of later international matches organised by BCCI they did not ask for this facility for the reason that their foreign agent has arranged direct uplinking with the Russian satellite Gorizon. In both cases, they wanted the permission to import the telecasting equipment along with the personnel to operate it by moving it to places all over the country wherever the matches were to be played. They claimed this license, or permission, as it may be called, as a matter of right said to be flowing from Article 19(1)(a) of the Constitution. They say that the authorities are bound to grant such license/ permission, without any conditions, all that they are entitled to do, it is submitted, is to collect technical fees wherever their services are availed, like the services of VSNL in the case of Hero Cup Matches. This plea is in principle no different from the right to establish and operate private telecasting stations. In principle, there is no difference between a permanent TV station and a temporary one; similarly there is no distinction in principle between a stationary TV facility and a mobile one; so also is there no distinction between a regular TV facility and a TV facility for a given event or series of events. If the right claimed by the petitioners (CAB and BCCI) is held to be constitutionally sanctioned one, then each and every citizen of this country must also be entitled to claim similar right in respect of his event or events, as the case may be. I am of the opinion that no such right flows from Article 19(1)(a).
(b)Airwaves constitute public property and must be utilised for advancing public good. No individual has a right to utilise them at his choice and pleasure and for purposes of his choice including profit. The right of free speech guaranteed by Article 19(1)(a) does not include the right to use airwaves, which are public property. The airwaves can be used by a citizen for the purpose of broadcasting only when allowed to do so by a statute and in accordance with such statute. Airwaves being public property, it is the duty of the State to see that airwaves are so utilised as to advance the free speech right of the citizens which is served by ensuring plurality and diversity of views, opinions and ideas. This is imperative in every democracy where freedom of speech is assured. The free speech right guaranteed to every citizen of this country does not encompass the right to use these airwaves at his choosing. Conceding such a right would be detrimental to the free speech rights of the body of citizens inasmuch as only the privileged few - powerful economic, commercial and political interests - would come to dominate the media. By manipulating the news, views and information, by indulging in misinformation and disinformation, to suit their commercial or other interests, they would be harming and not serving - the principle of plurality and diversity of views, news, ideas and opinions. This has been the experience of Italy where a limited right, i.e., at the local level but not at the national level was recognised. It is also not possible to imply or infer a right from the guarantee of free speech which only a few can enjoy.
(c)Broadcasting media is inherently different from Press or other means of communication/information. The analogy of press is misleading and inappropriate. This is also the view expressed by several Constitutional Courts including that of the United States of America.
(d) I must clarify what I say; it is that the right claimed by the petitioners (CAB and BCCI) - which in effect is no different in principle from a right to establish and operate a private TV station - does not flow from Article 19(1)(a); that such a right is not Implicit in it. The question whether such right should be given to the citizens of this country is a matter of policy for the Parliament. Having regard to the revolution in information technology and the developments all around, Parliament may, or may not, decide to confer such right. If it wishes to confer such a right, it can only be by way of an Act made by Parliament. The Act made should be consistent with the right of free speech of the citizens and must have to contain strict programme and other controls as has been provided for example, in the Broadcasting Act, 1991 in the United Kingdom. This is the implicit command of Article 19(1)(a) and is essential to preserve and promote plurality and diversity of views, news, opinions and ideas.
(e) There is an inseparable inter-connection between freedom of speech and the stability of the society, i.e., stability of a nation-State. They contribute to each other. Ours is a nascent republic. We are yet to achieve the goal of a stable society. This country cannot also afford to read into Article 19(1)(a) an unrestricted right to licensing (right of broadcasting) as claimed by the petitioners herein.
(f) In the case before us, both the petitioners have sold their right to telecast the matches to a foreign agency. They have parted with the right. The right to telecast the matches, including the right to import, install and operate the requisite equipment is thus really sought by the foreign agencies and not by the petitioners. Hence, the question of violation of their right under Article 19(1)(a) resulting from refusal of license/permission to such foreign agencies does not arise.
2. The Government monopoly of broadcasting media in this country is the result of historical and other factors. This is true of every other country, to start with. That India was not a free country till 1947 and its citizens did not have constitutionally guaranteed fundamental freedoms till 1950 coupled with the fact that our Constitution is Just about forty five years into operation explains the Government monopoly. As pointed out in the body of the judgment, broadcasting media was a mo-
nopoly of the Government, to start with, in every country except the United States where a conscious decision was taken at the very beginning not to have State monopoly over the medium. Until recently, the broadcasting media has been in the hands of public/statutory corporations in most of the West European countries. Private broadcasting is comparatively a recent phenomenon. The experience in Italy of allowing private broadcasting at local level (while prohibiting it at national level) has left much to be desired. It has given rise to powerful media empires which development is certainly not conducive to free speech right of the citizens.
3 (a). It has been held by this Court - and rightly - that broadcasting media is affected by the free speech right of the citizens guaranteed by Article 19(1)(a). This is also the view expressed by all the Constitutional Courts whose opinions have been referred to in the body of the judgment. Once this is so, monopoly of this medium (broadcasting media), whether by Government or by an individual, body or Organisation is unacceptable. Clause (2) of Article 19 does not permit a monopoly in the matter of freedom of speech and expression as is permitted by clause (6) of Article 19 vis-a-vis the right guaranteed by Article 19(1)(g).
(b) The right of free speech and expression includes the right to receive and impart information. For ensuring the free speech right of the citizens of this country, it is necessary that the citizens have the benefit of plurality of views and a range of opinions on all public issues. A successful democracy posits an 'aware' citizenry. Diversity of opinions, views, ideas and ideologies is essential to enable the citizens to arrive at informed judgment on all issues touching them. This cannot be provided by a medium controlled by a monopoly - whether the monopoly is of the State or any other individual, group or Organisation. As a matter of fact, private broadcasting stations may perhaps be more prejudicial to free speech right of the citizens than the government controlled media, as explained in the body of the judgment. The broadcasting media should be under the control of the public as distinct from Government. This is the command implicit in Article 19(1)(a). It should be operated by a public statutory corporation or corporations, as the case may be, whose constitution and composition must be such as to ensure its/their impartiality in political, economic and social matters and on all other public issues. It/they must be required by law to present news, views and opinions in a balanced way ensuring pluralism and diversity of opinions and views. It/they must provide equal access to all the citizens and groups to avail of the medium.
4. The Indian Telegraph Act, 1885 is totally inadequate to govern an important medium like the radio and television, i.e., broadcasting media. The Act was intended for an altogether different purpose when it was enacted. This is the result of the law in this country not keeping pace with the technological advances in the field of information and communications. While all the leading democratic countries have enacted laws specifically governing the broadcasting media, the law in this country has stood still, rooted in the Telegraph Act of 1885. Except Section 4(1) and the definition of telegraph, no other provision of the Act is shown to have any relevance to broadcasting media. It is, therefore, imperative that the parliament makes a law placing the broadcasting media in the hands of a public/statutory corporate or the corporations, as the case.may be. This is necessary to safeguard the interests of public and the interests of law as also to avoid uncertainty, confusion and consequent litigation.
5. The CAB did not ever apply for a license under the first proviso to Section 4 of the Telegraph Act nor did its agents ever make such an application. The permissions, clearances or exemption obtained by it from the several departments (mentioned in judgment) are no substitute for a license under Section 4(1) proviso. In the absence of such a license, the CAB had no right in law to have its matches telecast by an agency of its choice. The legality or validity of the orders passed by Sri N.Vithal, Secretary to the Government of India, Telecommunications Department need not be gone into since it has become, academic. In the facts and circumstances of the case, the charge of malafides or of arbitrary and authoritarian conduct attributed to Doordarshan and Ministry of Information and Broadcasting is not acceptable. No opinion need be expressed on the allegations filed by BCCI in these matters. Its intervention was confined to legal questions only.
6. Now the question arises, what is the position till the Central Government or the Parliament takes steps as contem- plated in Para (4) of the summary, i.e., if any sporting event or other event is to be telecast from the Indian soil? The obvious answer flowing from the judgment [and Paras (1) and (4) of this summary is that the organiser of such event has to approach the, nodal Ministry as specified in the de- cision of the Meeting of the Committee of Secretaries held on November 12, 1993. I have no reason to doubt that such a request would be considered by the nodal Ministry and the AIR and Doordarshan on its merits, keeping in view the public interest. In case of any difference of opinion or dispute regarding the monetary terms on which such telecast is to be made, matter can always be referred to an Arbitrator or a panel of Arbitrators. In case, the nodal Ministry or the AIR or Doordarshan find such broadcast/telecast not feasible, then they may consider the grant of permission to the organisers to engage an agency of their own for the purpose. Of course, it would be equally open to the nodal Ministry (Government of India) to permit such foreign agency in addition to AIR/ Doordarshan, if they are of the opinion that such a course is called for in the circumstances.