JUDGMENT
C.M. Nayar, J.
1. The present petition has been filed by Zee Telefilms Ltd. for issuance of a writ of mandamus or any other appropriate writ, order or direction for quashing the action and decision of the respondents in declining the live telecast of the Lux Zee Cine Award, 1999 on 14th March, 1999 from 8.30 p.m. onwards till the conclusion of the said event and consequently to allot the said time slots to the petitioners. The petitioners further contend that they will abide by the terms and conditions of the rate card etc. issued by the respondents for that purpose.
2. The learned Counsel for the petitioners has contended that the respondents have illegally and arbitrarily not granted permission to telecast the above-said event on DD-I Channel which is violative of Articles 14, 19(1)(a), 19(1)(g) and 21 of the Constitution of India. It is further submitted that the act of the respondents in declining to provide slots to the petitioners while having already telecast Film fare Manikchand Award, Screen Videocon Awards and Femina Colgate Miss World Award is discriminatory, arbitrary and violative of Articles 14 and 19(1)(a) of the Constitution of India. The details of the business activities of the petitioners are referred to in paragraph 3.1 of the writ writ petition which reads as follows:
“3.1. That the petitioners No. 1 and 2 are Companies registered under the Companies Act at the places mentioned in the cause title. The petitioner No. 1 is a Company dealing in the business of production, acquisition etc. of various programmes, films and the like and telecast, export etc. thereof. The petitioner No. 2 owns a well known film magazine namely Zee Premiere. The petitioner No. 3 is the Editor of the said film magazine Zee Premiere. The petitioner No. 4 is the shareholder of the petitioner No. 1. The petitioners No. 3 and 4 are filing the present petition for the said Companies as well as in their individual capacities as the beneficiaries of the business thereof. The petitioner No. 1 is exporting the programmes, films etc. acquired and/or produced etc. by it to the Company namely M/s. Asia Today Ltd., a Company registered at Mauritius which owns TV Channels namely Zee TV, Zee India and Zee Cinema respectively who in turn telecasts the programme from Hongkong. None of the petitioners own any TV Channel in India or abroad.”
3. The respondents have filed their counter affidavit wherein the following pleas have been raised to refute the claim of the petitioners:
(A) The petition is in substance and in fact intended to compel the respondents to enter into a clear contract with the petitioners for the telecast of Zee Cine Awards, 1999 and such a writ is not maintainable. (B) The right-of commercial speech that the petitioner is asserting is not, in any manner, infringed in as much as the Zee TV is telecasting the Zee Cine Awards, 1999; (C) The respondents have taken a decision not to telecast the said awards function since it is organized by and bears the name of Zee TV which is a competitor TV Channel of DD. The respondents are, therefore, not obliged to promote the competitor Channel or telecast programmes organized by them and which bear their name. The Film fare Manik Chand Awards, Screen Videocon Awards, Femina Palmolive Miss India Awards stand on different footing. (D) The right to choose a programme to telecast is the right of TV Channel, namely, DD in this case and normally this is not an area in which the Court can step in and decide as to which programme should be accepted for telecast and which should not unless there is evidence of any mala fide or the decision has been ta ken on extraneous consideration; (E) It is not possible to telecast an Awards function live since the National News in Hindi and English start at 8.30 p.m. and these cannot be disturbed.
4. The learned Counsel for the petitioners has placed reliance on the judgments reported as Life Insurance Corporation of India v. Prof. Manubhai D. Shah, and Secretary, Ministry of Information & Broadcasting, Govt. of India and Ors. v. Cricket Association of Bengal and Ors., to contend that Doordarshan merely manages the Channel and it is a public property and they cannot divest the petitioners of the constitutional right to telecast their programme. The decision is arbitrary, irrational and violative of Article 14 of the Constitution of India. The plea of exclusion of the petitioners that no slot can be granted to a rival Channel is not sound in law and cannot be entertained.
5. The first judgment Life Insurance Corporation of India (supra) was dealing with the case wherein the Life Insurance Corporation refused to print in its magazine the rejoinder of the citizen and the High Court upheld the right to publication in house magazine of an instrumentality of State. Similarly, in another appeal the judgment dealt with the case of refusal by DD to telecast film. The findings recorded are contained in paragraph 24 of the judgment which reads as follows:
“24. From the above discussion it follows that unquestionably the respondent had 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 then 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 an 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 sub judice so as to shut out the entire film from the community. In fact the community was keen to know what actually had 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 norm 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 the accepted norms set out 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.”
6. The learned Counsel for the petitioners on the above basis has sought support from the proposition of law that there cannot be any denial of the right of the petitioners to claim time slot on Doordarshan as it was financed by public funds and was a State controlled Body. The refusal in the present case is arbitrary and violative of Article 14 of the Constitution of India. Paragraph 8 of the judgment reported as Life Insurance corporation of India (supra) which is of relevance may be reproduced:
“8, The words “freedom of speech and expression” must, therefore, be broadly construed to include the freedom to circulate one’s views by words of mouth or in writing or through audio-visual instrumentalities. It, therefore, includes the right to propagate one’s views through the print media or through any other communication channel e.g. the radio and the television. Every citizen of this free country, therefore, has the right to air his or her views through the printing and/or the electronic media subject of course to permissible restrictions imposed under Article 19(2) of the Constitution. The print media, the radio and the tiny screen play the role of public educators, so vital to the growth of a healthy democracy. Freedom to air one’s views is the life-line of any democratic institution and any attempt to stifle, suffocate or gag this right would sound a death-knell to democracy and would help usher in autocracy or dictatorship. It cannot be gain-said that modern communication mediums advance public interest by informing the public of the events and developments that have taken place and thereby educating the voters, a role considered significant for the vibrant functioning of a democracy. Therefore, in any set-up, more so in a democratic set-up like ours, dissemination of news and views for popular consumption is a must and any attempt to deny the same must be frowned upon unless it falls within the mischief of Article 19(2) of the Constitution. It follows that a citizen for propagation of his or her ideas has a right to publish for circulation his views in periodicals, magazines and journals or through the electronic media since it is well known that these communication channels are great purveyors of news and views and make considerable impact on the minds of the readers and viewers and are known to mould public opinion on vital issues of national importance. Once it is conceded, and it cannot indeed be disputed, that freedom of speech and expression includes freedom of circulation and propagation of ideas, there can be no doubt that the right extends to the citizen being permitted to use the media to answer the criticism levelled against the view propagated by him. Every free citizen has an undoubted right to lay what sentiments he pleases before the public; to forbid this, except to the extent permitted by Article 19(2), would be an inroad on his freedom. This freedom must, however, be exercised with circumspection and care must be taken not to trench on the rights of other citizens or to jeopardise public interest. It is manifest from Article 19(2) that the right conferred by Article 19(1)(a) is subject to imposition of reasonable restrictions in the interest of, amongst others, public order, decency or morality or in relation to defamation or incitement to an offence. It is, therefore, obvious that subject to reasonable restrictions placed under Article 19(2) a citizen has a right to publish, circulate and disseminate his views and any attempt to thwart or deny the same would offend Article 19(1)(a).”
7. Similar reliance is placed on the judgment reported as Secretary, Ministry of Information & Broadcasting, Govt. of India and Ors. (supra). The following portion from paragraph 75 is referred to as below:
“75. It can hardly be denied that sport is an expression of self. In an athletic or individual event, the individual expresses himself through his individual feat. In a team event such as cricket, football, hockey etc., there is both individual and collective expression. It may be true that what is protected by Article 19(1)(a) is an expression of thought and feeling and not of the physical or intellectual prowess or skill. It is also true that a person desiring to telecast sports events when he is not himself a participant in the game, does not seek to exercise his right of self-expression. However, the right to freedom of speech and expression also includes the right to educate, to inform and to entertain and also the right to be educated, informed and entertained. The former is the right of the telecaster and the latter that of the viewers. The right to telecast sporting event will therefore also include the right to educate and inform the present and the prospective sportsmen interested in the particular game and also to inform and entertain the lovers of the game. Hence, when a telecaster desires to telecast a sporting event, it is incorrect to say that the free-speech element is absent from his right. The degree of the element will depend upon the character of the telecaster who claims the right……”
8. The facts of the present case may now be examined. The petitioners are operating their own independent Channel by the name of Zee Telefilms and possess a wide network of business in this and other allied fields. It is also alleged that part of the programme which is now sought to be televised on Doordarshan relating to Technical Awards has already been telecast. The respondents, it is argued, are well within their rights to exclude rival Channel in terms of their policy and they are not selling the time slots for broadcasting programme in larger public interest. The permission for telecasting other events was based on their own facts and they were not even live programmes.
9. It is not in doubt that the petitioner Zee Telefilms Ltd. is engaged in trade fof gain and is merely an Organiser of an event such as Lux Zee Cine Awards. Reliance on the judgment of Jeevan Reddy, J. in Secretary, Ministry of Information & Broadcasting, Government of India and Ors. (supra) dealing with the issue of broadcasting is” relevant and can be applied to the facts of the present case. The views as propounded by the learned Judge in paragraph 201 may be reproduced as follows :
“201. In this summary too, the expression “broadcasting media” means the electronic media now represented and operated by AIR and Doordarshan and not any other services.
l(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 licence 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 organized by CAB, they wanted up linking facility to INTEL5AT through the Government agency VSNL also. In the case of later international matches organized by BCCI they did not ask for this facility for the reason that their foreign agent has arranged direct up linking 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 licence, 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 licence/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 or 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 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 interconnection 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) ……”
10. The broad proposition relating to “Freedom of speech and expression” has been carefully analysed in paragraph 8 of the judgment reported as Life Insurance Corporation of India (supra) which has been reproduced in the earlier part of this judgment. The same establishes that “a citizen for propagation of his or her ideas has a right to publish for circulation his views in periodicals, magazines and journals or through the electronic media since it is well known that these communication channels are great purveyors of news and views and make considerable impact on the minds of the readers and viewers and are known to mould public opinion on vital issues of national importance.” The citizen, therefore, is permitted to use the media in the manner as provided in the above said judgment and this freedom must, however, has to be exercised with circumspection and care must be taken not to trench on the rights of the other citizen or to jeopardise public interest. Similarly, it has further been stated that the right conferred by Article 19(1)(a) is subject to imposition of reasonable restriction in the interest of, amongst others, public order, decency or morality etc. The above judgment, therefore, does not over-rule imposition of reasonable restrictions in this regard. The plea that the respondents cannot consider the claim of a rival competitor may not be totally relevant but it has been pleaded to highlight that the petitioners have their own network and they do not require assistance of Doordarshan to telecast their programme which cannot be termed as educative nor it can be stated as in larger public interest or in the interest of public order.
11. The petitioners are also mere Organisers of the function and non-grant of slot for the live programme cannot be held to be discriminatory and arbitrary in the facts and circumstances of the present case. The exclusion on the ground that the petitioners own a network of such a business cannot be termed illogical and irrational as it is already provided with the facility to telecast such so-called ‘mega events’. The respondents are well within their right to refuse to grant slot for live presentation of the programme and it will not be open for the Court to decide such matters when prima facie no constitutional rights of the petitioners are infringed. The writ of mandamus cannot be granted to force an unwilling party to enter into a contract and the petitioners do not possess an unrestricted right of telecasting at their own choosing.
In view of the above, there is no merit in this petition. The same is, accordingly,
dismissed in limine: