[cr-india] Reflections on Free Speech and Broadcasting in India [Vikram Raghavan]

[Frederick Noronha (FN)]

                              Chapter - 6
          Reflections on Free Speech and Broadcasting in India
                            Vikram Raghavan*
                          vikram1974 at gmail.com


In the past two decades, broadcasting has emerged the dominant means for
communications in India.1 Since the early 1990s especially, this
important sector of the economy has been radically transformed by
deregulation and liberalization. A stifling state monopoly over radio
and television has ended. A large number of private television and radio
stations have emerged. Their colourful, provocative, and very diverse
program content has replaced the stale and insipid offerings of
state-run broadcasting agencies. Today, broadcasting in India is a
powerful tool to spread news and information, debate and discuss issues,
entertain and amuse, and engage people to action. The multiple uses and
enormous influence of radio and television raise a variety of legal and
regulatory challenges. Prominent among them is the extent to which the
Indian Constitution’s guarantee of free speech influences broadcasting
policy and regulates program content. I propose examining these subjects
using the following outline.


Part I of this essay is a primer on India’s constitutional framework for
free speech protection. It explains the textual basis for freedom of
speech and expression and surveys the Supreme Court’s early cases.
Before broadcast deregulation began, the Supreme Court’s free speech
docket did not include very many radio and television cases. However, in
some remarkable pre-deregulation decisions, the courts held that
citizens have a fundamental right of access to government broadcasting
facilities. These cases are discussed in Part II.


Part III focuses on an important Supreme Court decision with profound
implications for free-speech and broadcasting. In it, the Court ruled
that Indian citizens enjoy a fundamental right to transmit and receive
information through audio-visual means, and that the government enjoys
no monopoly over broadcast frequencies. Finally, Part IV analyzes
whether greater restrictions should be imposed on broadcasting compared
to other expressive forms, such as books, newspapers, or even ordinary
speech, because of its powerful impact on audiences.


     I. Freedom of Speech and the Indian Constitution: An Overview
        

A. Articles 19 (1) (a) and 19 (2)


Freedom of speech and expression is a sacred icon in the Constitution’s
inner sanctum, the Fundamental Rights chapter. This freedom is a central
tenet of India’s constitutional faith. Textually, it is recognized in
article 19 that also lists certain other fundamental freedoms that
Indian citizens enjoy. Clause (1) (a) of that article protects free
speech and it reads:


All citizens shall have the right -- (a) to freedom of speech and
expression


In drafting this provision, India’s founders were influenced by the
First Amendment to the United States Constitution. That amendment says,
“Congress shall make no law abridging the freedom of speech, or of the
press.2” It assures, in relatively absolute terms, freedom of speech and
press.3 But, under the Indian Constitution, this freedom is a lot more
qualified. Article 19 (2) contains a list of various grounds that permit
the government to impose reasonable restrictions on the freedom. These
grounds are India’s sovereignty and integrity, state security, foreign
relations, public order, decency, morality, contempt of court,
defamation, and incitement of offenses.


B. Constitutional History


During the constitutional debates, there was never any doubt whether the
Constitution should explicitly protect free speech. Several members of
the Constituent Assembly vividly recalled, and had even experienced, the
colonial British administration’s attempts to stifle the freedom
movement using oppressive anti-sedition laws.4 They strongly believed
that the Constitution must explicitly recognize various fundamental
freedoms, including free speech and expression.5 However, there was
considerable division about whether to include specific grounds that
would enable the government to curtail or restrict these freedoms. 


Several members argued that including these grounds would significantly
affect or even negate the general content of these freedoms. Others,
however, favoured incorporating them because they feared that absolute
freedom would be dangerous given India’s enormous poverty, illiteracy,
and economic problems.6 Ultimately, it appears that many members voted
to include the grounds influenced by the “needs of the time.7”

C. Early Cases Involving the Print Media


When India’s Constitution was inaugurated in 1950, freedom of speech was
a relatively novel concept. But the courts were quickly filled with
cases in which citizens invoked the new freedom. Most actions involved
newspapers or magazines. Plaintiffs were usually newspaper publishers or
editors alleging that the government had restricted what they wanted to
print or publish. Unlike the more recent South African Constitution,
India’s Constitution does not expressly recognize press or media
freedom.8 But this omission did not stop the Supreme Court from
declaring that freedom of the press is an integral part of article
19 (1) (a).


Romesh Thappar v. Madras was the Court’s first free speech decision.9 It
arose from a government order forbidding the circulation of a journal¸
Crossroads. The order was made under a state law enacted to protect
public safety and public order. Thappar, Crossroads’s editor and
publisher, complained that the order violated his freedom of speech. The
Supreme Court, which had barely opened for business, agreed. Writing for
the majority, Justice Patanjali Sastri ruled that free speech includes
the right to propagate ideas, which is ensured by circulation.10 Public
order was not a constitutional basis to restrict free speech.11 The law
was declared unconstitutional and the order set aside.


On the same day as Romesh Thappar, the Court also decided Brij Bhushan
v. Delhi, another free speech case.12 At issue was an order requiring
publishers to submit “all communal matter and news and views about
Pakistan including photographs and cartoons . . . .”13 Relying on Romesh
Thappar, Justice Patanjali Sastri had little hesitation in holding the
order invalid. But, in more forceful language than his Romesh Thappar
opinion, he wrote that liberty of the press is an essential part of
article 19(1)(a).14


The Supreme Court explored this theme again in Express Newspapers v.
Union of India.15 The Court strongly emphasized the importance of media
freedom. It held that the press could not be oppressed with laws that
abridge free speech, curtail circulation, or undermine its independence
by driving it to seek government aid.16 The Court reiterated this view
in Sakal Papers v. Union of India, where it struck down the government’s
page and price limitations on newspapers.17 It emphasized that citizens
have a fundamental right to propagate their views and to reach any class
and number of readers they choose.18

D. Relative Absence of Broadcasting from the Court’s Free Speech
Jurisprudence


Few, if any, of the Supreme Court’s early free speech cases involved
broadcasting. In large part, this was because the government tightly
controlled radio and television services. Radio was the principal
electronic media in India through the 1950s and 1960s.19 Television
services commenced in the early 1970s, and during the 1980s, they
gradually emerged as an important communications medium. But, until the
early 1990s, All India Radio, the government’s radio monopoly, and
Doordarshan, the state-run television entity, enjoyed exclusive control
over all broadcast services. Very early in its history, the Supreme
Court emphasized the importance of an independent press free from
government interference. It had no hesitation in linking this concept to
the freedom of speech. Yet, it is striking that, until the late 1980s
and early 1990s, the Court never considered (or was never explicitly
petitioned to consider) whether the same rationale should also extend to
broadcasting, which remained completely dominated by the government.20


There could be several reasons for this phenomenon. First, state control
of broadcasting was rather common even in many Western liberal
democracies (excluding the United States). There seemed no compelling
need for India to be different by allowing private ownership of
broadcasting. Second, from the mid-1970s onward, there were significant
political and legislative attempts to make broadcasting autonomous. The
Court may have been content with leaving reform to the legislative and
political process without interfering in a highly charged partisan
battle. Third, the Court may have been unwilling to take on the
government on this important policy issue. During 1970s and 1980s, when
the Congress party was in power, it adamantly opposed any autonomy for
broadcasting.21 The Court may have wanted to preserve its capital for
more important battles with the government. And finally, and quite
simply, the Court may have just not been presented with an appropriate
case to consider the issue.22


Facing no competition from the private sector, government bureaucrats
generally decided what programs to broadcast on both All India Radio and
Doordarshan.23 They, in turn, were often influenced by their political
superiors on important programming decisions, especially the content of
news bulletins. Radio and television became full-fledged propaganda
machines for successive Indian governments. Thus, in the first few
decades following India’s independence, free speech, as a means to
ensure diversity of view-points, had little direct relevance to
broadcasting.24


E. Free Speech and Film Censorship 


There was, however, one important exception to the general dominance of
the print media in free speech matters: censorship cases involving films
and documentaries. They involved film producers and directors who
challenged government censorship of their productions. Film censorship
usually takes place under the Cinematograph Act (No. 37 of 1952). This
statute established the Board of Film Censors, which later became the
Board of Film Certification, (the “Film Board”). Section 4 (1) requires
every film scheduled for public screening to obtain a certificate from
the Film Board. Section 5B (1) declares that a film shall not be
certified if it violates certain provisions. These provisions are a
word-for-word reproduction of the permissible restrictions on free
speech under article 19 (2).


K.A. Abbas v. Union of India is the leading Supreme Court decision on
film censorship.25 It gave the Court its first opportunity to discuss
constitutional protection for free speech in the media outside the
traditional context of newspapers and magazines. Abbas, the petitioner,
was an award-winning film producer. The Film Board refused unrestricted
screening of his documentary, A Tale of Four Cities, because it included
scenes from a Bombay red-light district. The board asked Abbas to edit
certain scenes if the documentary was to qualify for a screening
certificate. Abbas refused and complained to the Supreme Court that the
board was violating his freedom of expression.26


Chief Justice Hidayatullah wrote a well-reasoned and artful judgment for
a unanimous constitution bench. Tracing the evolution of film
censorship, the Chief Justice noted that the Indian film industry lacked
a professional self-regulatory body like the Motion Picture Association
of America. Therefore, if the content of films were to be regulated,
only the government could do so.27 As a matter of practice, the Chief
Justice noted, censorship existed all over the world in some form or the
other.28 Although motion pictures in the United States generally enjoyed
a significant degree of First Amendment protection, they were not
completely free from restrictions. Restrictions could also be imposed on
films in England.29 


Censorship, the Chief Justice concluded, is a valid exercise of power in
the interests of public morality and decency. It is in society’s
interest and does not violate freedom of speech and expression.30 The
Chief Justice also upheld certain government-issued guidelines used by
film censors to certify films.31


An important dimension of Abbas is Chief Justice Hidayatullah’s
suggestion that films can be treated differently from other mediums of
expression. Cinema is a powerful media, Chief Justice Hidayatullah
wrote, combining sound, light, and movement to create a powerful
impact.32 For this reason, he readily upheld film censorship on the
grounds of public morality, decency, and the interests of society. But
he declined to consider whether censorship could also be imposed on
other forms of expression.33 Thus, the Chief Justice was inclined to
treat electronic productions, such as films and documentaries,
differently from other media like newspapers. But he did not reveal how
far this difference in treatment could go.


II. Relationship between Article 19 (1) (a) and Government Broadcasting


As I mentioned earlier, until rather recently, broadcasting in India was
under complete state control. Because of this dominant position, All
India Radio and Doordarshan enjoyed virtually unlimited control over
what Indians watched or listened to. If you were a program or
documentary producer and you wanted to broadcast your productions, you
were at the government’s complete mercy. All India Radio and Doordarshan
could easily decline to consider your productions or impose onerous
terms for broadcasting them. If you were refused, you had nowhere else
to go. Government domination of broadcasting was complete. There were no
private broadcast companies.34


As I mentioned earlier, it is remarkable that, in stark contrast to its
rich article 19 (1) (a) jurisprudence on the print media, the Supreme
Court did not explore the inter-relationship between the free speech and
broadcasting for a substantial period. Gradually, however, in the late
1980s, judges came to realize that state domination over broadcasting is
at odds with India’s liberal and democratic polity. This change in
judicial thinking led to two important cases in which the Supreme Court
fashioned an important right of access for citizens to government
broadcasting using article 19 (1) (a). In a related line of cases, the
Court ruled that government-owned broadcasting agencies, notably
Doordarshan, must not act arbitrarily in making broadcast decisions.35


A. Right to Access Government Broadcasting


The first Supreme Court case to discuss the relationship between
broadcasting and the freedom of speech was Odyssey Communications v.
Lokvidyan Sangathan.36 It arose from a public interest petition against
a television serial, Honi Anhoni, which was being telecast on
Doordarshan. Petitioners, a voluntary organization, alleged that the
program would promote blind beliefs and false superstitions. Like
evangelical Christians terrified by the Harry Potter series, they argued
that the serial would create fear in children through ghost stories.
Apparently convinced by this ridiculous submission, the Bombay High
Court granted an interim injunction. But the Supreme Court easily
reversed it. On behalf of the Court, Justice Venkataramiah ruled:

It can no longer be disputed that the right of a citizen to exhibit
films on the 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 [a]rticle 19 (1) (a) of the
Constitution of India which can be curtailed only under circumstances
which are set out in clause (2) of [a]rticle 19 of the Constitution of
India. The right is similar to the right of the citizen to publish his
views through any other media, such as newspapers, magazines,
advertisement hoardings, etc., subject to the terms and conditions of
the owners of the media.37

Although Justice Venkataramiah gave the impression that he was not
saying anything new, this holding was a bold, new development in India’s
free speech jurisprudence. The Court had created an entirely new right
of access to government-owned broadcasting media, which it traced to
article 19 (1) (a). It was also the first time that broadcasting was
explicitly acknowledged as an element in Indian free speech analysis.

Justice Venkataramiah compared this new right of access to what he
claimed was the right to publish in newspapers, magazines, and
advertisement hoardings. But his analogy is clearly wrong. Neither the
Constitution nor the Court’s prior jurisprudence (at least prior to
Odyssey) supports such a right. Article 19 (1) (a) is traditionally
understood to apply only to entities that constitute the state under
article 13. Most newspapers, magazines, and advertisement hoardings in
India are in private hands. Their publishers and hoarding owners do not
constitute the “state” under article 13.38 Therefore, strictly speaking
from a constitutional angle, they are not required to offer their
facilities to other citizens on demand. One could argue that Justice
Venkataramiah was only referring to a citizen’s right to use
government-owned newspapers, magazines, and hoardings. If this is true,
then the judge should have said so.

B. Fairness in Government Broadcasting Decisions

If it remained standing by itself, Odyssey’s novel right of access could
have been easily dismissed as obiter. The underlying case did not
involve any government actions that denied access to broadcasting
facilities. The Court could have easily decided the matter without
formulating a new right.39 As it turns out, however, the Supreme Court
affirmed Odyssey’s right of access in a subsequent decision, Life
Insurance Corporation v. Shah.40 This case arose, in part, from
Doordarshan’s refusal to screen an award-winning documentary on the
Bhopal gas disaster.41 The producer challenged this action, and, in its
defense, Doordarshan argued that the film lacked moderation and
restraint. The High Court set aside Doordarshan’s action and found that
article 19 (1) (a) had been violated.

The Supreme Court upheld the High Court’s judgment. On behalf of the
Court, Justice Ahmadi noted the importance of free speech and expression
in the constitutional scheme. Article 19 (1) (a) must be broadly
construed, Justice Ahmadi declared, to include the freedom to circulate
one’s views by mouth, in writing, or through audio-visual
instrumentalities. It includes the right to propagate one’s views
through the print media or through any other communication channel,
including the radio and television.42

Discussing case law, Justice Ahmadi noted that citizens are entitled
under article 19 (1) (a) to communicate their ideas or thoughts through
a newspaper, a magazine, or a movie.43 This right is only subject to
reasonable restrictions under article 19 (2). On this basis, he
concluded that the documentary producer had the “unquestionable” right
to convey his perception of the Bhopal gas disaster. Justice Ahmadi
noted that the documentary had won an important award and received a
screening certificate from the Film Board. It accurately portrayed
events during the Bhopal gas disaster even though it was critical of the
government’s handling of the situation. Doordarshan had acted
incorrectly by refusing to air the documentary.

Then, came the opinion’s dramatic conclusion. As a state agency using
public funds, Justice Ahmadi ruled, Doordarshan could not refuse to
screen the documentary without valid reason. He did not accept
Doordarshan’s reasons for rejecting the documentary, and he agreed with
the High Court that Doordarshan must telecast it.44

Manubhai Shah’s significance placed Odyssey’s right of access doctrine
on a much stronger footing. In Odyssey, Doordarshan and the producer
were on the same side. They both wanted the program aired. Yet, as we
saw earlier, the Court chose to declare a fundamental right of access to
Doordarshan subject, of course, to certain terms and conditions.
Manubhai applied this doctrine to a much more relevant case: one in
which Doordarshan had decided not to screen a privately produced
documentary. 

Manubhai’s holding that Doordarshan’s broadcasting decisions must be
based on “valid grounds” is significant. But Justice Ahmadi did not
reveal how these decisions ought to be taken. Instead, this issue is
more elaborately considered in Fasih Chaudhary v. Director General,
Doordarshan, a decision roughly contemporaneous to Manubhai and
Odyssey.45 Here, a screenwriter argued that Doordarshan must accept his
script for a television series on national integration. Doordarshan had
unfairly rejected the script, he alleged, for another proposal. The
Supreme Court was unpersuaded. It dismissed the case and upheld
Doordarshan’s selection. But, in its judgment, the Court observed that
Doordarshan must act in a fair and legitimate manner when considering
broadcasting proposals. Doordarshan must show no malice, affection,
favouritism, or nepotism. Thus, Manubhai and Fasih Chaudhary establish
an important principle that government-broadcasting agencies cannot act
arbitrarily or capriciously.

                                 * * *

Odyssey, Manubhai Shah, and Fasih Chaudhary are all remarkable
decisions. They are intelligent judicial innovations that gave new
meaning to article 19 (1) (a) by interpreting it to include broadcasting
freedom and requiring government agencies to act responsibly. At a time
when there was complete government domination over broadcasting, they
offered citizens a meaningful opportunity to utilize this important
medium of expression. The right of access to government broadcasting is
India’s homegrown version of a “fairness” doctrine (although it is so
far confined only to government agencies).46 In the post-liberalization
era, the importance of these principles may have slightly diminished.
With the proliferation of private satellite channels and cable networks,
citizens now have a variety of opportunities to express their views
without relying on Doordarshan. Yet, taken together, the three cases
represent an important breakthrough in the evolution of India’s free
speech jurisprudence as it relates to broadcasting and they have been
repeatedly affirmed.47

But the story is far from over. In the long run, there is likely to be
considerable pressure to extend the rationale of access rights to
private entities. Although Indian broadcasting has not been completely
deregulated, there are a considerable number of private players in the
sector today. In the past few years, several large private broadcasting
companies have emerged. They have become important and influential
avenues for news and analysis, debate, and discussion. Thus, a key
regulatory challenge for the future will be to find innovative and
unburdensome (from a free speech perspective) ways to ensure diversity
of information and opinions in a medium that is increasingly offered by
private entities.

C. Free Speech in Government-Produced Programs 

A relatively unexplored dimension of article 19 (1) (a) involves its
application to programs, such as news, current affairs, or political
commentaries, broadcast by government stations. This dimension of free
speech is discussed by the Bombay High Court’s decision in Indira
Jaisingh v. Union of India.48 The petitioner, a leading constitutional
lawyer, complained that Doordarshan had deleted important portions of
her television interview. These portions contained criticism of a bill
pending in Parliament affecting Muslim women’s rights. 


Justice Sujata Manohar, then a High Court judge, frowned on this action.
She held that citizens interviewed on government television should be
free to express their views and opinions. Censorship or deliberate
distortion of what they say violates their freedom of speech.49 An
uninhibited market place of ideas is necessary, Justice Manohar ruled,
especially when television is a state monopoly.50 Doordarshan was
ordered to give Indira Jaisingh a “proper and reasonable” opportunity to
express herself.


Indira Jaisingh is a unique case. It blends elements of a traditional
free speech controversy, like Romesh Thappar where the courts reject the
government’s attempt to restrict information, with relief based on the
access theory by requiring the government to provide the petitioner an
opportunity to express her views. There are few, if any, reported cases
that are similar to it.51


III. Cricket Association Case: Using Free Speech to Reform Broadcast
Regulatory Framework


Perhaps, the most important case on free speech and broadcasting is the
Supreme Court’s 1995 decision in Secretary, Ministry of Information and
Broadcasting v. Cricket Association of Bengal(“Cricket Association”).52
In this landmark ruling, the Court held that every citizen has a
fundamental right to impart as well as receive information through the
electronic media. It ruled that frequencies or airwaves are public
property, and that the government enjoys no monopoly over broadcasting.
Calling for significant reforms in broadcast regulation, the Court
ordered the government to take immediate steps to set up an independent
and autonomous public authority to regulate frequencies.53 Freedom of
speech and expression played an important role in this decision.


A. Facts


Cricket Association’s factual matrix is long and complex.54 The decision
is actually a common judgment for two different cases that arose
independently of each other. But they share some similar elements and
raised common questions of law. Both matters relate to international
cricket tournaments organized by professional cricket bodies. In each
case, Doordarshan and the tournament organizers were unable to agree on
contractual terms for live telecasts of the matches. Consequently, the
organizers sold their broadcasting rights to foreign broadcasting
companies. It was alleged that Doordarshan, angered by these decisions,
influenced other government agencies to stymie the foreign broadcasters’
preparations to telecast the matches. Among other things, the companies
were denied up-linking rights. 


Aggrieved by these developments, the tournament organizers sought legal
relief. In one case, the government and the organizers engaged in a
contentious round of interlocutory proceedings in the Calcutta High
Court before taking the matter to the Supreme Court. In the other case,
the organizers approached directly the Supreme Court through a writ
petition. The Court passed interim orders in both matters reserving its
final judgment on the merits for later. When this decision handed down,
the matches had been played and both tournaments were over. Aside from
the factual disputes, the principal issues that the Court addressed
involved: (i) the scope of article 19 (1)(a) vis-à-vis broadcasting;
(ii) the extent of government control over frequencies and broadcasting;
and (iii) the nature of the regulatory framework governing broadcasting.


B. Is There A Fundamental Right to Broadcasting?


In defending their decisions to award telecast rights to foreign
companies, the tournament organizers, in both cases, relied strongly on
article 19 (1) (a). Freedom of speech and expression, they argued,
includes the right to disseminate information. This meant that they
could decide how, and in what manner, the matches should be telecast.
Justice Sawant agreed. His long opinion includes a detailed survey of
leading Indian decisions, U.S. case law, and scholarly work on free
speech and the media.55 After an extensive survey of these authorities,
Justice Sawant held:

The freedom of speech and expression includes right to acquire
information and to disseminate it . . . The right to communicate,
therefore, includes right to communicate through any media that is
available whether print or electronic or audio-visual, such as
advertisement, movie, article, speech, etc. . . . 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.56

The right to free speech, Justice Sawant ruled, includes right to
educate, inform, and entertain. It also includes the right to be
educated, informed, and entertained.57 This right can only be subject to
reasonable restrictions under article 19 (2). If the government makes
any restrictions, it must bear the burden of justifying them.58


Although Justice Sawant clearly recognized the right to communicate
through any media, his opinion does not explicitly say that there is a
fundamental right to broadcasting. In fact, it is a bit confusing on
this important issue. At one point, Justice Sawant noted that the case
did not involve the right of private broadcasters. This seemed to
suggest that any substantive discussion on the fundamental right to
broadcast was not relevant. Yet, in another place, he admitted that the
right to telecast is implicit in the right to educate, inform, and
entertain, which is an extension of the freedom of speech and
expression.59 Ultimately, given Justice Sawant’s broad interpretation of
article 19 (1) (a) (in the block quotation above), it is difficult to
say that, after Cricket Association, the right to communicate does not
include a right to broadcast.60


This interpretation is especially compelling because Justice Sawant went
on to hold, in relation to the underlying facts, that the tournament
organizers, as telecasters of matches, enjoyed free speech rights under
article 19 (1) (a).61 They could telecast their matches using a method
or agency of their choice. But the degree to which this right is
available, he cautioned, would depend on their underlying character and
objectives. In the cases before the Court, the tournament organizers
were professional sporting bodies that promote cricket. They did not
intend, Justice Sawant assumed, a large profit from telecasting the
matches. They would use proceeds from the telecast contracts to develop
the sport.


Justice Jeevan Reddy, on the other hand, was unwilling to recognize any
explicit constitutional right to telecast for private entities,
including the tournament organizers. But he had limited room to
maneuver. The Court in Odyssey and Manubhai Shah had already held that
private citizens have a fundamental right to access government
broadcasting flowing from article 19 (1) (a). These decisions made it
difficult for Justice Jeevan Reddy to hold that broadcasting is not
covered by the freedom of speech. Faced with these precedents, and after
surveying other comparative materials, Justice Jeevan Reddy conceded
that article 19 (1) (a) includes the right to receive and impart
information.62 Citizens are entitled to a plurality of views and a range
of opinions on all issues, he acknowledged. 


Then, he reached an astonishing conclusion. Diversity of views and
information, he argued, can only be ensured by a public broadcasting
corporation -- not private or government-controlled services.
Broadcasting requires airwaves or frequencies, he reasoned, and these
elements are public property. They must, therefore, be utilized only for
the public good. For this reason, there is no fundamental right under
article 19 (1) (a) to impart information using these frequencies.63


Justice Jeevan Reddy’s interpretation of article 19 (1) (a) is clearly
much narrower than that of Justice Sawant. But since Justice Sawant’s
opinion was also that of Justice Mohan, the third judge in the case, it
represents the Supreme Court’s majority view. Despite the ambiguity in
his language, Justice Sawant recognized a fundamental right to impart
information and communicate through audio and visual means of one’s
choice is very significant. This must surely mean that there is a
fundamental right to broadcast even if its scope depends on the
underlying entity exercising it. 


This outcome was a giant leap forward in Indian constitutional law. But,
in some sense, it was an inevitable development in the progression of
Indian speech jurisprudence. Four months after the Constitution’s
inauguration, the Supreme Court unhesitatingly declared in Romesh
Thappar and Brij Bhushan that article 19 (1) (a) includes the freedom of
the press. This freedom, the Court rules, includes the right to print,
publish, and circulate news and opinions without government
interference.64 As a consequence, for almost fifty years, the Indian
print media enjoyed the full plenitude of free speech protection. Thus,
when broadcasting emerged as an important expressive medium, it was only
fair for the Supreme Court to extend to provide broadcasting with
similar cover. A denial of free speech in broadcasting would have caused
an unhealthy constitutional disequilibrium among different modes of
expression. A person would have a fundamental right to say, write, and
publish something, but not to telecast or broadcast it. That position
would have been unfair and unjust.


What, then, is included in the fundamental right to broadcast under
article 19 (1) (a)? As Justice Sawant himself explained, this right
includes the freedom to disseminate views and information in India and
abroad. It permits artists and performers to express themselves through
dramas, songs, dance, and productions.65 It must enable commentators and
analysts to reflect on political developments and to criticize
governments and public officials. It should provide a meaningful avenue
for political discussions and debate.66 It ought to protect broadcast
journalists who carry out investigations and report their findings.67
And it must allow satirists and comedians to lampoon and parody
contemporary events and people.


Finally, it is unfortunate that Justice Sawant linked the right to
broadcast to the underlying nature or business motives of the entity
exercising the right. After the Bank Nationalization and Bennet Coleman
Cases, it is now well settled that Indian citizens may exercise their
fundamental rights through companies or other corporate entities.68 Many
fundamental freedoms cannot be meaningfully exercised individually or in
isolation. Therefore, to make full and efficient use of these freedoms,
it may be necessary for citizens to organize commercially. By its very
nature, broadcasting is not a cottage industry or a small-scale
undertaking. It requires extensive financial, human, and technical
resources. In an increasingly global and competitive world where
broadcasting has become the dominant means of communications, it would
be unfortunate if broadcasting freedom in India depends on some pious
assessment of the purpose or motives of those seeking to exercise this
freedom. The Constitution certainly does not prescribe such a test when
guaranteeing the fundamental freedoms.


C. No Government Monopoly Over Frequencies or Airwaves 


Another important issue that Cricket Association discussed was whether
the government enjoys a broadcast monopoly. As a general argument in
both cases, the government argued that it had a complete control over
all frequencies or airways in India. It had the unilateral right to
decide how they should be used. The Supreme Court, however,
categorically rejected this submission. Justice Sawant held that the
Constitution forbids monopoly in either print or electronic media.69 He
acknowledged that broadcast frequencies are public property, and noted
the traditional argument for government control -- to prevent the rich
and wealthy from manipulating public opinion. But this argument lost its
force, Justice Sawant observed, in two circumstances. First, where a
section of society is unreasonably denied access to broadcasting or the
government claims an exclusive right to prepare and relay programs. And,
second, if access is sought to frequencies not being used by the
government.70


Justice Sawant was sympathetic to the argument that if private
broadcasters acted irresponsibly it would be impossible to repair the
damage. But, he countered, there are several regulatory provisions to
handle such a situation. The judge seemed troubled that the government
enjoyed virtually unbridled discretion to grant or refuse a broadcast
licence. This situation could result, he warned, in the government
suppressing speech, instead of protecting it.71 In any case, the
tournament organizers in the underlying cases had not asked for any
frequencies used by the government. There were other frequencies that
could be allotted to them. The government could refuse their
applications only on the basis of article 19 (2).72


Justice Jeevan Reddy’s opinion took a slightly different course on this
issue. As a basic proposition, Justice Jeevan Reddy posited that
frequencies or radio spectrum are public property. They cannot be
concentrated in the hands of a few – whether government or private A
monopoly over broadcasting is inconsistent with free speech. Government
control over the broadcast media effectively means control by the
political party in power.73 Yet, Justice Jeevan Reddy declined to
recognize that private citizens or entities have a fundamental right to
use these frequencies.


Although they both call frequencies public property, Justices Sawant and
Reddy had differed substantially on what this means practically.
According to Justice Sawant, as public property, frequencies must be
used in the best interests of society. For this purpose, a central
agency could either establish its own broadcasting network or it could
license private users. Justice Sawant acknowledged that only a few
persons could own frequencies because of the costs involved. But to
overcome this problem, he noted, the U.S. Federal Communications
Commission had evolved its fairness doctrine to impose access
requirements on private broadcasters.74 A similar arrangement was
available in India through the Press Council, which enforces a right to
reply.75 Thus, Justice Sawant, while endorsing the public nature of
frequencies, clearly indicated that private citizens and entities could
also utilize them. 


Justice Jeevan Reddy was far more restrictive. He was strongly in favour
of establishing a public broadcasting corporation that would use the
frequencies to promote the public good. Private broadcasters could not
be trusted to perform this function because they are primarily motivated
by profits.76


D. Changes to the Regulatory Framework for Broadcasting


Both Cricket Association opinions extensively discuss the regulatory
framework for broadcasting. This aspect of the case is important because
it affects the manner in which the freedom to broadcast is exercised.
When Cricket Association was decided (and as is the case even today),
the Telegraph Act of 1885 formed the principal regulatory basis for
broadcasting. This law establishes an “exclusive privilege” for the
government over all telecom and broadcasting services. As we saw
earlier, Justice Sawant was quite categorical in holding that the
Constitution forbids a monopoly in the print or electronic media.77 Yet,
Justice Sawant chose not to discuss whether the Telegraph Act was
unconstitutional for this reason. Instead, he dispassionately analyzed
the law, and calmly noted acknowledged that it created a government
monopoly over broadcasting.78 He then noted that the Act also permitted
the government to grant broadcast licences. This power to license, he
suggested, must be exercised consistently with article 19 (2). In other
words, any restrictions or conditions placed on licensees must be based
on the grounds indicated in that provision.79 What prevented Justice
Sawant from discussing the constitutionality of the statute is unclear
from the opinion.


Justice Sawant returned to this issue in his summary of conclusions
where he issued a remarkable order to the Central Government. He
directed it to take immediate steps to establish an independent
autonomous public authority to control and regulate use of airwaves or
frequencies. This authority, Justice Sawant wrote, should be
representative of all sections and interests in society.80


Like Justice Sawant, Justice Jeevan Reddy favoured creating an
independent corporation(s) or authority for broadcasting. But he
prescribed a much wider role for this corporation than Justice Sawant
did. Justice Jeevan Reddy was quite clear that this entity must not only
manage frequencies but also control all broadcasting. It was the
“command implicit” in article 19 (1) (a), he wrote, that the
broadcasting should be controlled by a statutory corporation.81 Only
such a structure could ensure fair and balanced presentation of news and
public issues.82


E. Is There a Fundamental Right to Establish a Broadcasting Station?


If, as Justice Sawant held, citizens enjoy a fundamental right to
transmit information through audio-visual means and there is no
government monopoly over frequencies, can private citizens claim the
right to establish a radio or television station? Justice Venkataramiah
anticipated such a question in Odyssey, but he left it open to be
considered in an appropriate case.83 With its lengthy discussion of
broadcasting rights, one could have expected that Cricket Association to
discuss this question. But Justice Sawant declined to do so holding that
private broadcasting was not at issue before the Court.84 Justice Jeevan
Reddy, on the other hand, felt no such compunctions. He was categorical
that no private person or individual had a fundamental right to
establish a broadcasting station. Private broadcasters, Justice Jeevan
Reddy warned, were more likely to manipulate news and opinions than
government-controlled media.85 He agreed that private broadcasters could
always set up stations abroad if they were not allowed to do so in
India. But this fact did not change his reading of article 19 (1) (a).
According to Justice Jeevan Reddy, the provision implicitly required
public broadcasting - not private broadcasting.86


Since Justice Sawant’s majority opinion does not endorse Justice Jeevan
Reddy’s position on this matter, this issue remains unresolved. But it
does seem illogical to suggest that the right to broadcast does not also
include the right to establish a broadcasting station. It is true that,
in the prevailing technological and regulatory circumstances, there are
some limitations on this right because broadcast frequencies are
considered scarce. But, in strict economic terms, there is really
nothing that is not scarce, other than, perhaps, fresh air. All goods
are, in some sense, limited and finite. Scarcity, therefore, is not a
legitimate basis to say that there is no right.87


There are two other dimensions to this question that were not explored
by either Justice Sawant or Justice Jeevan Reddy. First, assuming that
there is no right to establish a broadcasting station in article 19 (1)
(a), one could possibly argue that this right resides, instead, in
article 19 (1) (g). That provision gives citizens the freedom to
practice any trade, profession, occupation, or business. The only
permissible restrictions are those imposed in the “interests of the
general public.” Why would it be against the public interest to have
more radio and television stations? More stations will result in
increased competition among them. This could greatly increase diversity
of opinions, entertainment, and information.88


A second aspect to this right to establish broadcasting stations relates
to the constitutional protection for religious and minority rights.
Article 25 (1) gives all persons the right to freely profess, practice,
and propagate their religion, and article 29 (1) assures minorities the
right to conserve their distinct language, script, or culture.89 The
Court has interpreted these articles to recognize that communities and
minorities may establish their own educational institutions to foster
their religious and cultural heritage.90 If this is true, why can’t
communities or minorities also operate broadcasting stations for this
purpose? As a minority, it is hard to imagine a more effective way to
preserve one’s language and culture than to establish a radio or
television station.


                                 * * *


Few cases in India’s constitutional history have captured public and
activist attention as Cricket Association. The decision was widely
welcomed, especially the holding that the government had no monopoly
over radio frequencies. This ruling and the Court’s direction that the
government place frequencies under the control of an autonomous public
agency were bold, radical, and ground breaking. Cricket Association
reinvigorated and breathed new life into Indian free speech law. It also
forced government officials and policy makers to consider a regulatory
framework for broadcasting.91


IV. Scope of Restrictions on Broadcasting Services

Program content on radio and television is subject to various
restrictions enumerated in article 19 (2). As the Abbas Casereveals, the
most significant and frequently invoked restrictions on the electronic
media are those based on public morality and decency. Of course, as
Indians increasingly turn to the radio and television for news and
current affairs, other restrictions, such as state security, public
order, contempt of court, and India’s sovereignty and integrity, may
increasingly affect broadcasting. It is tempting to explore each of
these restrictions in detail. However, this essay has space limitations.
Therefore, I will focus on a more general question. Can the government
impose a greater degree of restrictions on broadcasting services than it
does on other expressive media, such as newspapers or a public speech?

A. Is Free Speech in Broadcasting Subject to Lesser Protection?

This question has been considered in some detail by the U.S. Supreme
Court. Despite its robust defense of free speech, that court has
explicitly held that terrestrial broadcasting (not cable) is entitled to
a lesser degree of First Amendment protection.92 This reduction is
justified on the ground of spectrum scarcity and the unique nature of
broadcasting.93 

In India, however, the position is not very clear even after Cricket
Association. As we saw earlier, in his Abbas opinion, Chief Justice
Hidayatullah suggested that films could be treated differently from
other media. But he did not indicate the extent to which this difference
in treatment is permitted under the Constitution.94 

Justice Sawant did address this issue in Cricket Association. But his
opinion reveals inconsistent views on how it should be addressed. At one
stage in his judgment, Justice Sawant categorically rejected the
government’s argument that broadcasting can be subject to additional
restrictions because of spectrum scarcity. “The virtues of the
electronic media,” he argued, “cannot become its enemies.95” He opposed
enlarging restrictions beyond those already listed in article 19 (2).
Yet, when summarizing his conclusions, Justice Sawant wrote that
additional restrictions could be imposed on the electronic media because
they use frequencies or airwaves that are public property.96 Justice
Jeevan Reddy, of course, was firmly of the view that broadcasting cannot
claim the same degree of free speech protection as the print media
because it was “inherently different.”97

Perhaps, this question will be conclusively settled through an
appropriate case in the future. But, as a conceptual matter, are greater
restrictions on broadcasting justified? I believe they are not for
several reasons. First, there is no textual basis in our Constitution
for subjecting one medium to greater restrictions than others. Article
19 (2) establishes no caste system among various forms of expression,
and it would be ludicrous to judicially engraft one. Free speech should
be protected regardless of the forum or medium in which it is espoused.
Second, the United States’ First Amendment does not specifically
indicate what restrictions may be validly imposed on free speech.
Permissible restrictions, and their scope and effect, have gradually
evolved through case law. Thus, the U.S. Supreme Court’s lower
protection for free speech in broadcasting evolved in the absence of
specific textual benchmarks. Article 19 (2), on the other hand, contains
a long list of widely worded grounds for the government to restrict free
speech. As Justice Sawant noted (even if he contradicted himself later)
it is illogical to increase this list just because broadcasting has a
wider reach and greater impact. 

Greater restrictions are sometimes justified because broadcasters use
frequencies, which are public property, to transmit information. But
this argument is weak. Other expressive media also use public goods to
disseminate their content. Newspapers are delivered through public
streets. Books and periodicals are transported using national highways
and railways to various parts of India. Even the most basic examples of
exercising free speech – a roadside speech, public meeting, or
demonstration – all involve the use of public property.

Finally, broadcasting restrictions are defended on the ground that India
is still a developing country.98 The poor and illiterate, it is argued,
are vulnerable to the dramatic appeal of radio and television. They must
be protected. This paternalistic assumption seems to assume that poor
and illiterate have no capacity for thought, reasoning, or rational
judgment. Being poor or unable to read does not mean one is unable to
think. The poor and illiterate in India are called upon to make
important decisions: voting in elections, giving evidence in court, and
even serving in legislatures.


Epilogue


A constitutional provision like article 19 (1) (a) “is never static, it
is ever-evolving and ever-changing and therefore does not admit a
narrow, pedantic, or syllogistic approach.99” As more Indians turn to
the radio and television to express themselves, they must have the
ability to fully utilize this media. Indeed, they have a fundamental
right to do so. And, in order to be meaningful, this right must include
the ability to establish broadcasting stations.


Almost a decade after Cricket Association was decided, there is still no
comprehensive legal and regulatory framework governing Indian
broadcasting (with the limited exception of cable networks).100 The
government continues to issue broadcast licenses. This function presents
a serious conflict of interest, because the government also controls All
India Radio and Doordarshan – potential competitors to private
broadcasting licensees. Moreover, the government has failed to comply
with the Supreme Court’s directions in Cricket Association to establish
an independent and autonomous entity to regulate frequencies. Prasar
Bharati, a broadcasting corporation established in 1999, functions
largely as a holding company for Doordarshan and the All India Radio. It
is not an independent and autonomous regulatory agency, nor does it have
any control over frequencies. It is not what the Supreme Court called
for in Cricket Association. 101


The lingering question is how deeply India’s institutions, especially
the judiciary, have internalized the importance of free expression in
the electronic media. It is my earnest hope, and I’m sure Justice
Krishna Iyer will agree with me, that freedom of speech has become an
indelible value of India’s polity. It nourishes and fosters the vibrant
civil society and thriving democracy, which makes India the envy of many
parts of the world. It is especially important that this important
constitutional guarantee is fully available to broadcasting as it grows
and expands. Without it, an increasingly important sphere of Indian life
and activity will not receive the bright sunshine of the Constitution’s
fundamental freedoms.

* Counsel, Middle East, North Africa and South Asia Group, The World
Bank, Washington, DC. I am grateful to several friends and colleagues,
who read this essay. They are Upendra Baxi, David Fontana, N.S.
Gopalakrishnan, Dave Kumar, Promod Nair, Maurizio Ragazzi, Patrick
Roberts, Steve Obenski, Thomas Sebastian, V. Suresh, Arun Tiruvengadem,
and Benjamin Yong. Their comments and insights greatly improved my
writing and analysis. I am not sure Justice Krishna Iyer will agree with
everything I say here. But, to paraphrase Ronald Dworkin, controversy is
at the heart of our great legal tradition to which Justice Krishna Iyer
has contributed so much. See Ronald Dworkin, Political Judges and the
Rule of Law in Comparative Constitutional Law: Festschrift in Honour of
Professor P.K. Tripathi 3 (M. P. Singh, ed., Eastern Book Co. 1989).
Paragraph references for judgments cited here are from Manupatra, the
online legal database. Finally, I write this essay in my personal
capacity, and the opinions I express here are entirely my own. They do
not represent the World Bank’s position on any issue.


1 For a general account of these changes, see Broadcasting Reform in
India (Monroe E. Price & Stefaan G. Verhulst, eds., Oxford University
Press 2000). When using the term “broadcasting,” I am referring to radio
and television (in all its species: terrestrial, satellite, and
cable).  


2 U.S. Constitution, amend. I.


3 See William O. Douglas, We the Judges: Studies in American and Indian
Constitutional Law from Marshall to Mukherjea 307 (Doubleday 1956)
(noting that, unlike the Indian Constitution, the First Amendment does
not permit legislative innovations).


4 See P.K. Tripathi, Free Speech in the Indian Constitution: Background
and Prospect, 67 Yale L.J. 384, 391-393 (1957-1958) (discussing the
importance of free speech to Gandhi and the Indian national movement).


5 See B. Shiva Rao, Framing of India’s Constitution: A Study 222-223
(Indian Institute of Public Administration, 1968).


6 See id. at 223-225.


7 See id. at 223.


8 See South African Constitution, section 16 (1) (a) (“Everyone has the
right to freedom of expression, which includes – (a) freedom of the
press and other media[]”).


9 AIR 1950 SC 124: (1950) SCR 594.


10 Id. at ¶4. See Burt Neuborne, The Supreme Court of India 1
International Journal of Constitutional Law 476, 508 (2003) (Romesh
Thappar anticipated the U.S. Supreme Court’s over-breadth doctrine).


11 Romesh Thappar and certain other developments led to the First
Amendment enacted in 1951. Among other things, this amendment
retroactively broadened the scope of permissible free speech
restrictions in article 19 (2). For an account of its legislative
history, see Granville Austin, Working a Democratic Constitution, The
Indian Experience 38-50 (Oxford University Press 1999).


12 (1950) SCR 605.


13 Id. at ¶1.


14 See id. at ¶4 (italics mine). The judge did not offer any reasons for
this interpretation other than to cite Blackstone’s commentaries. His
opinion suggested that press freedom flows inexorably from the freedom
of speech. During the Constituent Assembly debates, Dr. Ambedkar, chair
of the drafting committee, was not in favour of including a separate
provision. No special recognition was required, he declared, because
individuals, such as editors and managers, run the press. These persons
could express themselves freely when writing or publishing. Therefore,
it was unnecessary to provide separate protection for the press. See 7
Constituent Assembly Debates 780 (Dec. 2, 1948). Apparently convinced by
this explanation, the Assembly rejected a proposal to expressly include
freedom of the press in the Constitution. See id. at 784.


15 (1959) SCR 12.


16 See id. at ¶207.


17 AIR 1962 SC 395: (1962) 3 SCR 842.


18 See id. at ¶27.


19 For an historical account of Indian radio, see Pon Thangamani,
History of Broadcasting in India: With Special Reference to Tamil Nadu
1924-1954 223 - 228 (Ponnaiah Pathippagam 2000); and Sevanthi Ninan,
History of Indian Broadcasting Reform 3 in Broadcasting Reform in India,
supra note 1.


20 Before deregulation began in the 1990s, government control over
broadcasting was an issue in at least three cases. But the courts
declined to interfere. See Prakash Vir Shastri v. Union of India, AIR
1974 Del. 1 (declining to issue direction that All India Radio avoid
favouring ruling party in its coverage); A. B. Shorawal v. L.K. Advani,
AIR 1977 All. 426 (refusing independent candidate’s petition challenging
government decision to restrict election broadcasts to only those
candidates fielded by political parties); and P.L. Lakhanpal v. Union of
India, AIR 1982 Del. 167 (upholding government control over
broadcasting).


21 See Venkat Iyer, Mass Media Laws and Regulations in India 68 (Asian
Media Information and Communication Centre 2000) (Prime Ministers Indira
Gandhi and Rajiv Gandhi argued that, as a developing country, India was
not ready for independent broadcasting); David Page & William Crawley,
Satellites over South Asia 63 (Sage Publications 2001) (the Congress
government consistently ignored recommendations to allow state
governments (often controlled by opposition parties) to operate their
own broadcasting services).


22 I have not found any record of the Court having declined to hear
appeals from the three high court cases mentioned in note 20, above.


23 See Lloyd I. Rudoph and Susanne Hoeber Rudolph, In Pursuit of
Lakshmi: The Political Economy of the Indian State 82 (University of
Chicago Press 1987) (noting complaint that, on account of frequent
transfers and reassignments, Indian Administration Service officers
lacked technical expertise to run Doordarshan).


24 Free speech was a major casualty during the infamous Emergency of the
mid-1970s. Prime Minister Indira Gandhi’s government misused radio and
television to propagate its achievements, while censoring the newspapers
that sought to carry alternative views or criticism. The courts tried to
intervene in some newspaper cases, but they did not consider the
government’s blatant abuse of broadcasting.


25 AIR 1971 SC 481: (1970) 2 SCC 780. There were a few film censorship
cases before Abbas. But they did not produce any significant outcomes.
See, e.g., P.N. Films v. Union of India, AIR 1955 Bom. 381 (declining to
address validity of Cinematograph Act because court lacked jurisdiction
to hear the matter).


26 At oral argument, the government made a dramatic concession. The film
would receive a screening certificate without requiring any further
edits. The case should have ended there. Instead, at Abbas’s request,
the Court continued the proceedings to decide whether pre-censorship of
films, itself, was constitutional. Justifying this unusual maneuver, the
Court explained that film producers required clear guidance on
censorship. See Abbas at ¶7; see also H.M. Seervai, 1 Constitutional Law
of India 792 (N. M. Tripathi 1991) (criticizing this procedure because
it resulted in the Court rendering an advisory opinion).


27 See Abbas at ¶11.


28 The Chief Justice found, with some apparent satisfaction, that even
Abbas, the petitioner, supported censorship having written in favour of
it. See id. at ¶20.


29 In any case, the Chief Justice wrote, American and British practices
on film censorship are not decisive because India’s Constitution is
different. It allows reasonable restrictions on the free speech. See id.
at ¶39.


30 See Abbas at ¶¶40-41.


31 But the Chief Justice complained that these guidelines did not
contain anything that would preserve or promote art. To remedy this
situation, he announced additional standards for censors to use so that
films were not unreasonably edited. These directions were taken from an
earlier Hidayatullah opinion in Ranjit D. Udeshi v. State of
Maharashtra, (1965) 1 SCR 63. In that case, these directions were
formulated as a guide for prosecutors on obscenity in literature. They
could also be used, the Chief Justice believed, to assess films. See
Abbas at ¶48.


32 To illustrate, the Chief Justice helpfully volunteered his own
reaction to suggestive content in different media. One could view erotic
tableaux in ancient temples or read the Kamasutra, he declared, with
relative equanimity. But he would consider abhorrent any documentary on
these works that was a practical sex guide. See Abbas at ¶50.


33 See id. at ¶¶40-41. Each form, the Chief Justice noted, had “a
different context and importance.”


34 You could not broadcast your production privately either. Until the
Cable-TV law (discussed in Part V) was enacted, private cable networks
that independently transmitted programs using videotapes or satellite
feeds were illegal. See Restaurant Lee v. State of Madhya Pradesh, AIR
1983 MP 146 (holding that local television networks cannot operate
without a licence under the Telegraph Act 1885).  


35 See generally, C. M. Jariwala, An Emerging Frontier of Speech and
Expression: Freedom of Doordarshan, 38 Journal of the Indian Law
Institute 149 (1996).


36 AIR 1988 SC 1642: (1988) 3 SCC 410.


37 See id. at ¶5.


38 Most fundamental rights, including the freedom of speech, are
enforceable only against the executive (government agencies,
departments, or other entities) and the legislative. Collectively, these
entities are called the “state.” See Constitution of India, articles 12
and 13. Private entities are generally not bound to observe fundamental
rights.


39 Unlike the typical free speech case, in Odyssey the government and
the producer were actually on the same side. They both wanted telecast
of the serial to proceed. There was no violation of any fundamental
rights, in the ordinary sense, because these violations usually involve
some infringing governmental action – and in this case there was none.
But Justice Venkataramiah still found a violation had taken place.
According to him, the violation lay in the High Court’s order enjoining
Doordarshan from telecasting the program. This injunction abridged the
producer’s rights. See Odyssey at ¶6. This reasoning, while attractive
at first blush, ignores a binding nine-judge precedent, Naresh Mirajkar
v. State of Maharashtra, AIR 1967 SC 1. There, the Supreme Court held
that a judicial order from a high court cannot be challenged as a
fundamental rights violation. See id. at ¶38 (“it is singularly
inappropriate to assume that a judicial decision pronounced by a Judge
of competent jurisdiction in or in relation to a matter brought before
him for adjudication can affect the fundamental rights of the citizens
under [article 19 (1) (a))]”).


40 (1992) 3 SCC 637.


41 The decision’s cause title is derived from a separate case involving
the Life Insurance Corporation (“LIC”), a state-run agency like
Doordarshan. The LIC case arose from the agency’s refusal to publish a
rejoinder to a column in its in-house magazine. The Gujarat High Court
ordered the publication on free speech grounds. LIC appealed to the
Supreme Court. The Court delivered a common judgment in that case and in
the case against Doordarshan because they raised the common
constitutional issue of free speech in government entities.


42 See Life Insurance Corp. v. Manubhai Shah, (1992) 3 SCC 637 at ¶8.


43 See id. at ¶21.


44 See Manubhai Shah at ¶23. Ignoring the uneasy relationship between
Odyssey’s facts and legal conclusions, Justice Ahmadi referred to it
approvingly in his survey of free speech case law. But, interestingly
enough, he did not cite Odyssey as the underlying basis for holding that
citizens have a fundamental right to communicate through movies (from
which he went on to conclude that Doordarshan could not arbitrarily deny
screening of movies).  


45 (1989) I SCC 89: AIR 1989 SC 157. Manubhai’s focus on article 19 (1)
(a) and the freedom of speech could be a reason for Justice Ahmadi’s
reluctance to expand further on Doordarshan’s decision making.
Substantive and procedural aspects of government decision-making are
usually addressed under the right to equality guaranteed by article 14.
This article, and its jurisprudence of non-arbitrariness in
administrative matters, was not prominently discussed in Manubhai. By
contrast, Fasih Chaudhary sounds more like a standard administrative-law
decision. But this fact does not diminish its significance in
complementing Manubhai and Odyssey’s right of access theory.


46 The fairness doctrine was evolved by the Federal Communications
Commission (“FCC”) in the United States. It imposes a two-pronged
obligation on private broadcasters. First, they must cover important and
controversial community issues. And, second, they must offer a
reasonable opportunity for contrasting viewpoints on such issues. See
Fairness Doctrine Report, 102 FCC 2d 145 (1985). This doctrine was
upheld by the U.S. Supreme Court in Red Lion Broadcasting Co. v. FCC,
395 U.S. 367 (1969). But the FCC repealed the fairness doctrine in 1987
because it found that the doctrine’s net effect was to actually reduce,
rather than increase, diversity of viewpoints. See In Re Complaint of
Syracuse Peace Council, 2 FCC Rcd. 5043 (1987).


47 See C. Gopalakrishnan v. Union of India, AIR 1996 Ker. 333 (cites
Odyssey to hold that citizens have a fundamental right to exhibit films
on Doordarshan; and orders local station to complete telecast of a
popular television serial for which an extension had been refused);
Prime Channel v. Union of India, 1996 (38) DRJ 106 (public interest
should be paramount in Doordarshan’s programs; it must carefully and
critically examine all television serials before entering into
agreements with producers); Home Communication v. Union of India, Civil
Writ Petition No. 3104 of 1993, MANU/DE/0283/1993 (Delhi High Court,
Sep. 21 1993) (“first-come first-served” scheme to allot off-time
programming slots on Doordarshan’s satellite channels is arbitrary and
invalid); and cf. Bhim Vakanki v. Union of India, AIR 1999 Guj. 113
(upholding Doordarshan’s selection of programs commemorating fifty years
of independence and stressing that government entities (like
Doordarshan) must have scope for “free play in the joints”).


48 AIR 1989 Bom. 25.


49 See id. at ¶13.


50 See id. at ¶16.


51 In this respect, Indira Jaisingh is slightly different from Manubhai.
In that decision, Doordarshan was ordered to screen an existing
privately produced documentary. Justice Manohar’s order in Indira
Jaisingh, however, required Doordarshan to give the petitioner a fresh
opportunity in a future Doordarshan program. I am grateful to my friend,
Tom Sebastian, for alerting me to this dimension of Indira Jaisingh.


52 AIR 1995 SC 1236: (1995) 3 SCC 619. Justice Sawant wrote the
principal opinion in Cricket Association. He spoke for himself and
Justice Mohan. Justice B.P. Jeevan Reddy wrote a separate, but
concurring, opinion. In their judgments, neither Justice Sawant nor
Justice Jeevan Reddy suggested that they disagreed on any issue. Indeed,
Justice Jeevan Reddy noted that he agreed broadly with Justice Sawant’s
conclusions. See id. at ¶26. Yet, a careful reading of their opinions
reveals significant differences on some important issues. For this
reason, Justice Sawant’s opinion should be regarded as the Court’s
majority position, while Justice Jeevan Reddy’s views represent the
minority opinion.


53 For comment, see Sharad Varma, Air Waves: Public Property, 10 The
Lawyers 4, May 1995; Shreyas Jayasimha & Shuva Mandal, Freeing the
Airways, 9 National Law School Journal 150 (1997); M.P. Jain, The
Supreme Court and Fundamental Rights in Fifty Years of the Supreme Court
of India 47 (S.K. Verma & Kusum eds., Oxford University Press 2000)


54 A detailed account of the facts is available in Justice Jeevan
Reddy’s opinion. See Cricket Association at ¶¶29-45.


55 See id. at ¶¶ 4-10.


56 See id. at ¶11.


57 See id. at ¶11.


58 See id. at ¶2.


59 See id. at ¶17.


60 This is how at least one subsequent decision has interpreted Cricket
Association. See Union of India v. Association for Democratic Reforms,
AIR 2002 SC 2112 at ¶44 (citing Cricket Association for the proposition
that there is a fundamental right to telecast sporting events).


61 See id. at ¶17.


62 See id. at ¶94 and ¶97 (3) (b).


63 See id. at ¶90.


64 See text accompanying notes 9 – 22.


65 See Usha Uthup v. West Bengal, AIR 1984 Cal. 268 (article 19 (1) (a)
includes the right to sing disco music and dance); and Ruchika Theatre
Group v. Delhi, AIR 1985 Del. 324 (freedom of speech includes the right
to stage plays and dramas).


66 See Telugu Desam Party v. Election Commission, 1995 (5) ALD 631
(Election Commission stipulation that political parties refrain from
campaigning through the electronic media unreasonably interferes with
the right to communicate and discuss political issues).


67 See M. Hasan v. Andhra Pradesh, AIR 1998 AP 35 (prison officials’
action preventing journalists from conducting video interview with
prisoners violates article 19 (1) (a)).


68 Read literally, the free speech protection in article 19 (1) (a) is
only available to citizens. But, in Bennet Coleman v. Union of India,
AIR 1973 SC 106, the Supreme Court held that a company can sue for
fundamental rights violations if it is joined by editors, directors, or
shareholders, who are citizens. For this principle, the Court relied on
its decision in the Bank Nationalisation Case where it upheld a
shareholder’s standing to challenge government takeover of commercial
banks. See R.C. Cooper v. Union of India, (1970) 1 SCC 248. For comment,
see M.P. Jain, Article 19 (1) (a): Freedom of the Press, 15 Journal of
the Indian Law Institute 154 (1973).


69 See Cricket Association at ¶13. According to Justice Sawant, the
Constitution only permits monopolies in the general-public interest. See
id.


70 See id.


71 See id.


72 See id. at ¶17. Justice Sawant was unimpressed by the government’s
submission that the tournament organizers were using their fundamental
rights to benefit foreign companies (which did not enjoy such these
rights). The right to free speech, Justice Sawant wrote, includes the
right to disseminate information by the best possible method through an
agency of one’s choice. The organizers could choose the best avenue to
obtain maximum revenues for their sport. See id. Justice Jeevan Reddy
appears to dissent on this point. He noted that, in both cases, the
tournament organizers sold their telecast rights to foreign entities.
Thus, they had effectively parted with their rights to broadcast the
matches. Therefore, it was really the foreign companies, and not the
tournament organizers, that were seeking to telecast the matches. The
government’s alleged actions in refusing them up-linking did not violate
the tournament organizers’ rights because they had none! See id. at ¶92.
This reasoning suffers from a vital flaw. If the freedom of speech, and
by implication the right to telecast (which, in any case, Justice Jeevan
Reddy was ambivalent about), is available only to Indian citizens, how
can they be regarded as having sold this right to a foreign entity? It
appears that Justice Jeevan Reddy confused contractual rights to
telecast matches, which the organizers validly assigned to foreign
companies, with their constitutional freedom to telecast sporting
events.


73 See id. at ¶90.


74 Unbeknownst, perhaps, to Justice Sawant, the FCC repealed its
fairness doctrine in 1987. See supra note 46.


75 See Cricket Association at ¶17. It is unclear whether Justice Sawant
was suggesting that a right of reply should also be enforced against
private broadcasting services.


76 See id. at ¶90.


77 See text-accompanying note 69.


78 See Cricket Association at ¶13. Section 4 (1) of the Telegraph Act
1885 confers an exclusive privilege on the Central Government to
establish and operate telegraphs. The act’s definition of a “telegraph”
is wide enough to include most forms of broadcasting.  


79 See id. at ¶13.


80 See id. at ¶24.


81 See id. at ¶97 (3) (b). Justice Jeevan Reddy fails to explain the
basis for such a conclusion. There is clearly nothing in the wording of
article 19 (1) to suggest such an implicit command.


82 Justice Jeevan Reddy did concede, however, that more than one public
corporation could be established to ensure sufficient competition in
broadcasting. See id. at ¶96. The primary role that Justice Sawant
envisaged for the authority was allocation and regulation of
frequencies. In one part of his opinion, he did suggest that the
authority could also establish its own broadcasting network or it could
grant of licences to other entities, including private ones. But he did
not include this point in his summary of conclusions. See id. at ¶24.


83 Justice Venkataramiah clarified that his articulation of a right of
access to Doordarshan did imply a fundamental right to establish a
private broadcasting station or a television centre. See id. at ¶5. This
question arose on at least two occasions before Odyssey. It was first
discussed by Justice Das in his separate opinion to A.K. Gopalan v.
State of Madras, AIR 1950 SC: (1950) 1 SCR 88. Analyzing article 19 (1)
(a), he raised the hypothetical question whether an Indian citizen could
establish a station for broadcasts to foreign territories. The answer,
according to him, was “clearly no.” See id. at ¶279. Justice Das’s view
is, of course, only dicta because Gopalan did not involve broadcasting
rights. But the issue squarely arose before the Delhi High Court in
1982. A petitioner complained that the government had denied his
application to start a private broadcasting station. He argued that
strict government control over the electronic media prevented the
opposition from expressing their views. The High Court found that
freedom of speech includes the right to broadcast. But it declined to
recognize that this right extends to establishing broadcasting stations
because there would be chaos if everyone wanted to have their own
stations. See P.L. Lakhanpal v. Union of India, AIR 1982 Del. 167. This
case is not cited in either Odyssey or in Cricket Association.


84 See Cricket Association at ¶17.


85 Justice Jeevan Reddy seemed particularly bothered by developments in
Italy. There, the Constitution was interpreted to imply a right to
establish private broadcasting stations at the local level. This
development led to the rise of giant media oligopolies. See id. at
¶62.  


86 On this point, Justice Jeevan Reddy’s opinion suffers from a
contradiction. Despite his claim that article 19 (1) (a) implicitly
requires public broadcasting, Justice Jeevan Reddy went on to concede
that Parliament could permit private broadcasting. He then added that a
court should not rule on this issue because it involved a “policy”
matter. If this last statement is true, why did Justice Jeevan Reddy
posit a constitutional basis for public broadcasting in article 19 (1)
(a) in the first place? If private broadcasting is, as he claims, a
policy matter, he should have refrained from offering a gratuitous
opinion on the subject.


87 To be sure, not everyone who wants to establish a broadcasting
station may actually be able to do so. Under the present mechanics of
spectrum usage, only certain applicants may be able to obtain frequency
allocations. They may have to undergo a competitive process and satisfy
certain technical and financial qualifications. Once selected, they may
have to comply with certain terms and conditions to operate their
stations. But the presence of a selection process, necessary
qualifications, and operating conditions does not mean that there is no
right to establish broadcasting stations in the first place. The
scarcity aspect to frequency regulation has another dimension. Some
legal scholars argue that the present “real property” model for
frequency management, which assumes airwaves are scarce, is no longer
valid. They argue that modern technology, called spread spectrum,
enables high-tech transmitters or devices to use the same frequency to
communicate without interfering with each other. See Yochai Benkler &
Lawrence Lessig, Will Technology Make CBS Unconstitutional?, The New
Republic 12-14, Dec. 14, 1998. Thus, spectrum is potentially unlimited
and no longer scare. Interestingly enough, Justice Jeevan Reddy referred
to this argument. See Cricket Association at ¶81. But it did not affect
his conclusion that airwaves are public property and must be utilized
for the greatest public good. See id. It is also regrettable that, by
focusing exclusively on terrestrial broadcasting, both Justices Sawant
and Jeevan Reddy ignored another important alternative: cable
television. Cable networks can efficiently transmit a large number of
programs without imposing additional demands on frequencies. When the
Supreme Court decided Cricket Association, cable networks had sprung-up
and were rapidly expanding across India. Yet, the opinions completely
ignored this development. See Ninan, supra note 19 at 13-14.


88 It is possible to say, as Justice Jeevan Reddy did, that a private
broadcaster motivated only by profits may take advantage of this
fundamental right to manipulate opinions and information. But this logic
is applicable to any activity, which involves private industry.
Distortions or misrepresentation of information can also take place
through the print media, which is largely owned by private individuals
and companies. Yet, no one has seriously suggests that, because of this
danger, the right to establish newspapers and magazines should be
limited. Education is another example of an information-intensive
activity involving entities. One could argue that private educational
institutions, motivated by maximum returns or parochial interests, may
manipulate knowledge and information they impart to students. Yet, as
the Court has recently affirmed, citizens enjoy a distinct fundamental
right to establish private educational institutions (as a trade or
occupation) under article 19 (1) (g). See T.M.A. Pai Foundation v. State
of Karnataka, (2002) 8 SCC 481 at ¶¶18-26 (establishing and running an
educational institution is an occupation under article 19 (1) (g))
(majority view of Chief Justice B.N. Kirpal). If this is true, it seems
illogical to maintain that there is no similar right available to
establish broadcasting stations.


89 See Stainislaus v. State of Madhya Pradesh, AIR 1977 SC 908 at ¶20
(holding the right to propagate one’s religion includes the right to
transmit or spread its tenets).


90 See id. at ¶89.


91 Cricket Association was followed by a Calcutta High Court order that
directed the Central Government to take appropriate steps to implement
the Prasar Bharati Act. This law was enacted in 1990 to provide
organizational autonomy to All India Radio and Doordarshan under a
single corporate umbrella. But it was not brought into force
immediately. A writ petition was filed in the Calcutta High Court
demanding an end to this delay. The government offered various
justifications. But the High Court was unconvinced and ordered the
government to take necessary action. See Peoples’ Union for Civil
Liberties v. Union of India, AIR 1996 Cal. 89. As is its wont in such
matters, the government constituted a committee to study the issue. It
was only in 1999 that the act was finally brought into force.


92 See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) and FCC v.
Pacifica Foundation, 438 U.S. 726 (1978).


93 See generally, Christopher S. Yoo, The Rise and Demise of the
Technology-Specific Approach to the First Amendment, 91 Georgetown Law
Journal 245 (2003).


94 See text accompanying notes 32-33.


95 See id. at ¶17.


96 See id. at ¶24 (ii). Perhaps, this confusion arose because Justice
Sawant believed that the scarcity argument was factually inapplicable to
the underlying cases. Neither tournament organizer had asked for a
permanent allocation of spectrum. They only wanted frequencies for a
temporary duration to telecast the matches.


97See id. at ¶97 (1) (c).


98 See Union of India v. Motion Picture Association, AIR 1999 SC 2334 at
¶17 (noting that a substantially significant portion of our population
is illiterate in justifying “must-carry” provisions that require film
exhibitors to screen government-produced scientific and educational
films).


99 See S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574.


100 Cf. M.P. Singh, Constitution of India 112 (Eastern Book Co. 2001)
(arguing that the Prasar Bharati is “taking care” of the issue raised in
the Cricket Association Case). In early 2004, the government gave the
Telecom Regulatory Authority of India (“TRAI”), the independent
regulator of telecom services, jurisdiction over broadcasting and cable
services as well. See Ministry of Communications and Information
Technology, Government of India, Additional Functions Entrusted for
Telecom Regulatory Authority of India, Order No. S O45 (E); and
Broadcasting Services and Cable Services Notified as Telecommunication
Service, Notification No. S O44 (E) (Jan. 9 2004). At the time of
writing, it is unclear whether TRAI is to be a permanent broadcasting
regulator or whether this notification is merely an ad hoc
administrative arrangement.


101 In the absence of a competent and autonomous broadcast regulator,
Indian courts will have to decide disputes among broadcast companies,
especially those between government-controlled and private entities.
See, e.g., Ten Sports v. Citizen Consumer and Civic Action Group, (2004)
5 SCC 351 (dispute between Prasar Bharati and a foreign company
involving rights to telecast India-Pakistan cricket matches).