{"id":102332,"date":"2011-09-30T00:00:00","date_gmt":"2011-09-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/star-india-private-limited-vs-union-of-india-on-30-september-2011"},"modified":"2015-10-23T09:12:20","modified_gmt":"2015-10-23T03:42:20","slug":"star-india-private-limited-vs-union-of-india-on-30-september-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/star-india-private-limited-vs-union-of-india-on-30-september-2011","title":{"rendered":"Star India Private Limited vs Union Of India on 30 September, 2011"},"content":{"rendered":"
Delhi High Court<\/div>\n
Star India Private Limited vs Union Of India on 30 September, 2011<\/div>\n
Author: S. Muralidhar<\/div>\n
           IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n                                     W. P. (C) 879\/2010\n\n                                                  Reserved on: August 11, 2011\n                                                  Decision on: September 30, 2011\n\n          STAR INDIA PRIVATE LIMITED               ..... Petitioner\n                         Through:   Mr. S. Ganesh, Senior Advocate with\n                                    Mr. Sidharth Chopra and\n                                    Mr. Nitin Sharma, Advocates.\n\n                            versus\n\n           UNION OF INDIA                                        .... Respondent\n                                     Through:     Ms. Inderjit Sidhu, Advocate.\n\n         CORAM: JUSTICE S. MURALIDHAR\n\n          1.    Whether Reporters of local papers may be\n                allowed to see the judgment?                              Yes\n          2.    To be referred to the Reporter or not?                    Yes\n          3.    Whether the judgment should be reported in Digest?        Yes\n\n                                      JUDGEMENT\n<\/pre>\n
                                        30.09.2011<\/p>\n
1. Star India Private Limited (\u201eSIPL\u201f) challenges an order dated 27th November 2009,
\nissued by the Ministry of Information and Broadcasting (\u201eI&B Ministry\u201f), Government
\nof India, administering a warning to Star Plus Channel (\u201eSPC\u201f) in exercise of powers
\nunder Section 20 of the Cable Television Networks (Regulation) Act, 1995 (\u201eCTNR
\nAct\u201f) to strictly adhere to the Programme Code (\u201ePC\u201f) in terms of Sections 5 CTNR
\nAct read with Rule 6 of the Cable Television Networks Rules, 1994 (\u201eCTN Rules\u201f).
\nThe warning was with reference to the telecast\/re-telecast by the SPC of a program
\ntitled \u201eSach Ka Saamna\u201f (\u201eSKS\u201f) on 17th and 21st July 2009.\n<\/p>\n
Background facts\n<\/p>\n
2. SIPL states that it is engaged in the business of producing and supplying content to
\nvarious channels operated under the name \u201eSTAR\u201f including SPC. SPC is stated to
\nhave a wide viewership. The television programme SKS is stated to have been adapted
\nfrom a widely watched international show titled \u201eThe Moment of Truth\u201f (\u201eTMOT\u201f),<\/p>\n
W. P. (C) No. 879 of 2010                                                       Page 1 of 17<\/span>
\n which is watched in India and over twenty other countries. It is stated that TMOT has
\nbeen broadcast in India since 2008, through a sister channel of SPC, STAR World, at
\nthe 9 pm slot. It is stated that there were repeat telecasts of the programme from
\nJanuary to March 2009. According to SIPL SKS is a medium to encourage people to
\nspeak and confess solemn truths relating to their lives “even if it means facing some
\nembarrassing situations for which they themselves are responsible”. It is stated to be an
\nattempt to help the willing contestants “to shed their masks and inhibitions, and bring
\nforth their integrity and strength of character.” It is claimed that the programme seeks
\nto reward honesty and truthfulness, and provide a public platform from which
\n“contestants may openly reflect on those aspects of their lives which they are not
\nparticularly proud of so that they may start life afresh with a clean conscience”. It is
\nstated that prior to the filming of the programme, the contestant expressly consents to
\nbeing asked personal and confidential questions pertaining to his\/her life and agrees to
\ngive true answers in respect of the same. As a result, the answers of the contestants are
\nthen filmed and telecast “under the belief and understanding that the contestant will
\nspeak the truth”. The contestant is given the option of leaving the programme at any
\ntime including even after the polygraph test is conducted. Care is taken through the
\nentire process to ensure that the contestant always has the option to quit if he\/she does
\nnot wish to go further in the programme.\n<\/p>\n
3. SKS was telecast by SPC from 15th July 2009 to 18th September 2009, involving a
\ntotal of forty-eight episodes. On 22nd July 2009, a show cause notice was issued to
\nSIPL by the I&B Ministry in regard to the content of the two episodes of SKS telecast
\non 17th and 21st July 2009. The show cause notice (\u201eSCN\u201f) stated that the content of
\nthe said episodes was “vulgar, indecent and against good taste and decency”. In the
\nfirst paragraph of the SCN it was stated:\n<\/p>\n
                “the anchor of the above programme seeks replies to
\n                questions regarding infidelity, incest and other taboo
\n                subjects that are not suitable for unrestricted public
\n                exhibition especially keeping in view the Indian ethos and
\n                culture. These questions and their replies are followed by a
\n                polygraph test, the results of which are at times contrary to
\n                the replies given resulting in great embarrassment not only
\n                to the participants and their families but also to the viewers
\n                watching the programme along with their families. These,<\/p>\n
W. P. (C) No. 879 of 2010                                                   Page 2 of 17<\/span>
\n                 therefore, appear offending against good taste, decency;
\n                apparently contain obscene words, appear to malign and
\n                slander segments of social, public and moral life of the
\n                country and are not suitable for unrestricted public
\n                exhibition.”\n<\/p><\/blockquote>\n
4. The SCN referred to Section 5 CTNR Act and Rules 6 (1) (a), (d), (i) and (o), CTN
\nRules.\n<\/p>\n
5. On 27th July 2009, the SIPL replied to the SCN asking the I&B Ministry to share
\nwith it the source and the details of the complaints. Its detailed reply adverted inter alia
\nto the background of SKS, the process prior to the taping of the programme, the process
\nwhile shooting the episode, and the objective of the programme. SIPL maintained that
\nit had not violated any of the rules, and that it did not defame its contestants or their
\nfamily members nor did it propagate false and suggestive innuendos or half truths
\nabout them. It was asserted that the concept of the program or its portrayal “is not
\noffensive to Indian ethos and cultural sensibilities and does not slander, criticize or
\nmalign the moral fabric of the country”.\n<\/p>\n
The impugned order\n<\/p>\n
6. Thereafter, on 27th November 2009, the impugned order came to be issued by the
\nI&B Ministry whereby the warning was issued. It was mentioned in the impugned
\norder that the matter had been placed before the Inter-Ministerial Committee (\u201eIMC\u201f)
\nwhich previewed the recording of SKS and also considered the reply submitted by
\nSIPL. The IMC opined that the questions asked during the show were vulgar, indecent
\nand against good taste and decency, and related to subjects that were not suitable for
\nunrestricted public exhibition and that the channel had violated Rule 6 (1) (a), (d), (i)
\nand (o) CTN Rules. Further, the IMC opined that the channel should be advised that
\n“while formatting a programme based on International format, the channel should keep
\nin view the Indian ethos and culture as well”.\n<\/p>\n
7. SIPL states that it had “without prejudice to its rights and contentions” unilaterally
\nshifted the timing of its programme from 10.30 pm to 11 pm and had informed the
\nRespondent of the change. Further, it “ran, at frequent intervals, scrolls and tickers<\/p>\n
W. P. (C) No. 879 of 2010                                                    Page 3 of 17<\/span>
\n during the programme stating that the programme was not for unrestricted viewing, and
\nadvising parental guidance and viewers\u201f discretion while watching the programme.” It
\ninformed the I&B Ministry of the above steps at the personal hearing on 8 th September
\n2009 and in a letter dated 9th September 2009.\n<\/p>\n
The pleadings\n<\/p>\n
8. In the writ petition SIPL has challenged the impugned order as being arbitrary, non-
\nspeaking and “without any cogent reasons.” It attacked the impugned order as being
\nviolative of the principles of natural justice since the impugned order does not provide
\nthe reasons for the conclusions drawn therein and without such reasons SIPL was
\nhandicapped in challenging the order. It is submitted that the impugned order
\nmechanically reproduces the text of the PC in Rule 6 CTN Rules without specifying
\nhow those rules are attracted. It is submitted that the expressions “morality”,
\n“decency”, “good taste”, “vulgar” and “Indian ethos and culture” are subjective. The
\nprogramme should not be viewed from the perspective of a hyper-sensitive individual.
\nIt is submitted that the adoption of a narrow and strict view of decency and morality
\nwould not only impinge on the freedom of speech and expression but also impede, if
\nnot render impossible, the carrying of a larger social message through the medium of
\ntelevision. It is pointed out that this Court had, on 29th July 2009, dismissed two public
\ninterest litigation (\u201ePIL\u201f) petitions (Deepak Maini v. Star Plus and Prabhat Kumar
\nPushp<\/a> v. Star Plus) seeking a ban on the telecast of SKS. SIPL also refers to the order
\ndated 11th August 2009 of the Madhya Pradesh High Court dismissing another PIL
\nseeking a similar relief (Saurabh Gupta v. Union of India).<\/a>\n<\/p>\n
9. In the counter affidavit filed on 22nd March 2010 by the I&B Ministry it is stated that
\nat the time of being granted permission to downlink SPC, SIPL gave a written
\nundertaking that it would abide by the PC under the CTNR Act and CTN Rules.
\nReferring to SIPL\u201fs past conduct the I&B Ministry states that SIPL was issued a
\nwarning on 19th April 2007 for violating the advertisement code, a warning on 16th
\nOctober 2006 in relation to a programme and an advisory on 2nd July 2007 for
\nbreaching the PC in the course of telecasting another programme. As regards SKS it is
\nstated in para 15 of the counter affidavit that there were protests voiced by Members of
\nParliament (\u201eMPs\u201f) in the Council of States (Rajya Sabha) on 22nd July 2009 that it was<\/p>\n
W. P. (C) No. 879 of 2010                                                  Page 4 of 17<\/span>
\n indecent and against Indian culture. The MPs had asked the government to take
\nimmediate action against SPC. Pursuant to the said protest “and other complaints” the
\nimpugned warning letter had been issued to SIPL. The counter affidavit states that in
\nSKS embarrassing questions were put to the participants as a result of which their
\nfamily members had to walk out. When an elderly contestant was asked in the presence
\nof his young daughter whether he had ever had sex with a girl younger to his daughter
\nthe camera was focused repeatedly on the daughter who became very embarrassed
\nwhen he answered in the affirmative. It is submitted that SKS intruded into the privacy
\nof individuals and that the content of SKS was against good taste and decency. It is
\nsubmitted that honesty or truthfulness could not be tested by a polygraph since it was
\nnot 100% accurate and considering the contemporary community standards, Indian
\nculture and ethos the questions asked, SKS was not suitable for unrestricted public
\nviewing.\n<\/p>\n
The additional affidavit of the I&B Ministry\n<\/p>\n
10. During the course of arguments it was submitted on behalf of SIPL that the copies
\nof the complaints referred to in para 15 of the counter affidavit were not furnished to
\nSIPL. Further, a question was raised about the composition of the IMC and its
\nimpartiality in assessing whether SKS was in breach of the PC. The Court on 2nd
\nAugust 2011, after hearing the submissions of Ms. Inderjit Sidhu, learned counsel for
\nthe I&B Ministry, passed the following order:-\n<\/p>\n
                “1. The records of the Respondent have been produced. Mr.
\n                Amar Nath, Under Secretary, Ministry of Information &
\n                Broadcasting is present in Court.\n<\/p><\/blockquote>\n
                2. Learned counsel for the Respondent seeks to hand over
\n                certain documents emanating from the records across the
\n                bar. These documents do not form part of the pleadings. In
\n                the circumstances, it is considered appropriate to direct that
\n                Mr. Amar Nath will file an affidavit before the next date
\n                explaining the statements made in para 15 of the counter
\n                affidavit and enclosing the relevant documents forming part
\n                of the record, including a translated copy of the question
\n                raised by an MP in the Rajya Sabha, a copy of the
\n                notification constituting the Inter Ministerial Committee
\n                (\u201eIMC\u201f) and the proceedings, if any, of the IMC. An
\n                advance copy of the said affidavit be served on the learned
\n                counsel for the Petitioner before the next date.\n<\/p><\/blockquote>\n
W. P. (C) No. 879 of 2010                                                   Page 5 of 17<\/span><\/p>\n
                 3. List on 11th August 2011.\n<\/p><\/blockquote>\n
                4. The records of the case be kept ready for perusal by this
\n                Court on the next date of hearing.”\n<\/p><\/blockquote>\n
11. Pursuant to the above order, an additional affidavit dated 8th August 2011 was filed
\nby the I&B Ministry where, inter alia, it was mentioned that while dismissing the PIL
\npetitions in Deepak Maini v. Star Plus,<\/a> this Court left it to the Government of India
\n(\u201eGoI\u201f) to take appropriate action. The High Court of Madhya Pradesh too had
\nobserved likewise in its order in Saurabh Gupta v. Union of India. It<\/a> was further
\nstated that during the zero hour, i.e., from 12 pm to 1 pm in the Rajya Sabha on 22nd
\nJuly 2009, Mr. Kamal Akhtar, MP, raised the issue of obscenity and vulgarity in reality
\nshows on television channels.      Mr. Akhtar made a special mention of SKS and
\nrequested the government to stop reality shows which were spreading obscenity and
\npolluting Indian culture. Mr. Akhtar was joined in his demand by seven other MPs.
\nThe extract of the verbatim proceedings in the Rajya Sabha were annexed to the
\nadditional affidavit. The I&B Ministry took note of the issues raised by the MPs and
\nthe episodes of SKS telecast on 17th and 21st July 2009 were previewed in the chamber
\nof the then Joint Secretary, I&B Ministry following which the SCN dated 22nd July
\n2009 was issued to SIPL. The additional affidavit further stated that a structured
\ndiscussion on the topic of “the increasing obscenity and vulgarity in television
\nprogrammes being shown on different channels against the cultural ethos of the
\ncountry” took place on 23rd July 2009 in the Rajya Sabha. On 24th July 2009, through a
\nSpecial Mention, one other MP, Mr. Ram Gopal Yadav, again raised a point regarding
\nSKS. In the discussion held on 27th July 2009 in the Rajya Sabha, a specific reference
\nwas made of SKS by many of the MPs. The additional affidavit also enclosed copies of
\ngrievance petitions dated 27th July 2009 from Ms. Madhu Agarwal, 19th August 2009
\nfrom an organisation named \u201eRIGHTS\u201f and 23rd November 2009 from Mr. Subhash
\nChandra Aggarwal asking for prohibition of telecast of SKS.\n<\/p>\n
12. The additional affidavit of the I&B Ministry pointed out that the representatives of
\nSPC attended a meeting on 23rd July 2009 for a discussion with the I&B Minister.
\nSIPL wrote a letter on 30th July 2009 informing the I&B Ministry about the steps it had<\/p>\n
W. P. (C) No. 879 of 2010                                                 Page 6 of 17<\/span>
\n taken by placing advisory, scrolls and tickers. In the said letter the Petitioner stated:\n<\/p>\n
                “the views expressed by the Hon\u201fble Members of Rajya
\n                Sabha, the views expressed by the Hon\u201fble Minister on the
\n                Floor of the House, the sensitivities of the general public at
\n                large and the recent observations of the Hon\u201fble Delhi High
\n                Court while dismissing the Public Interest Litigations in
\n                respect of the program, we STAR India Pvt. Ltd., as a
\n                responsible corporate and a channel of repute, are keen to
\n                proactively extend its support to the Ministry by proposing
\n                the following set of suggestions to the already existing
\n                advisories in keeping with our mandate of socially
\n                responsible & relevant broadcasting.”\n<\/p><\/blockquote>\n
13. Another meeting was held with SIPL on 3rd August 2009 wherein the concerns of
\nthe I&B Ministry were conveyed to SIPL. Pursuant thereto, SIPL wrote to the
\nSecretary, I&B Ministry on 7th August 2009, conveying its decision to shift the
\nprogramme from the time slot of 10.30 pm to 11 pm. At a personal hearing on 8th
\nSeptember 2009 before the Joint Secretary (Broadcasting), SIPL was once again
\napprised of the issue and the individual complaints against the programme. Pursuant
\nthereto, on 9th September 2009, SIPL wrote a letter to the I&B Ministry outlining the
\nfurther steps taken by it.\n<\/p>\n
Submissions of counsel\n<\/p>\n
14. The submissions of Mr. S. Ganesh, learned Senior counsel for the Petitioner were
\nas under:\n<\/p>\n
(i)   The impugned order failed to specify how SKS is contrary or offensive to
\nacceptable standards of Indian ethos and culture. The Respondent in the impugned
\norder had mechanically reproduced the sub-Rules 6 (1) (a), (d), (i) and (o) of the CTN
\nRules without providing any substantiation, or indicating which part of the programme
\nor which questions, aspects or features were found to be objectionable and in violation
\nof the PC. Reliance was placed on the decisions of the Supreme Court in Canara Bank
\nv. Debasis Das<\/a> (2003) 4 SCC 557, Chief Engineer, MSEB v. Suresh Raghunath
\nBhokare<\/a> 2005 SCC (L&S) 765, Commissioner of Central Excise, Belgaum v. Mysore
\nKirloskar Limited, Karnataka<\/a> (2008) 7 SCC 766 and Municipal Corporation,
\nLudhiana v. Inderjit Singh<\/a> (2008) 13 SCC 506.\n<\/p>\n
W. P. (C) No. 879 of 2010                                                     Page 7 of 17<\/span><\/p>\n
 (ii) The Respondent had not given any reasons for the conclusions drawn about SKS in
\nthe impugned order. Also, no reasons were given for rejecting the various contentions
\nraised by the Petitioner in its reply to the SCN.    Relying on the decision in Barium
\nChemicals Ltd. v. A.J. Rana<\/a> (1972) 1 SCC 240, it was submitted that the elements of
\napplication of mind, and due care and attention to the materials, were absent in the
\nimpugned order. It was violative of the principles of natural justice. Reliance was also
\nplaced on the decisions in Travancore Rayon Ltd. v. Union of India<\/a> (1969) 3 SCC 868
\nand M. J. Sivani v. State of Karnataka<\/a> (1995) 6 SCC 289. It was submitted that the
\nreasons for arriving at the conclusions should be discernible from the order itself. These
\ncannot be supplied by way of an affidavit subsequently filed by the government.
\nReliance was placed on the decision in Commissioner of Police v. Gordhandas Bhanji
\nAIR<\/a> 1952 SC 16.\n<\/p>\n
(iii) The legality of the constitution of the IMC itself was doubtful since it comprised
\nentirely of bureaucrats and had no representative from either the industry or of artists.
\nConsidering that it was meant to assess whether television programmes were in
\nconformity with the PC on an application of objective standards, the composition of the
\nIMC had to be much more broad-based with experts from different fields.\n<\/p>\n
(iv) The counter affidavit showed that the competent authority had not itself viewed the
\nallegedly offending episodes of SKS, but had merely reiterated the findings of the IMC.
\nThe report of the IMC on the basis of which the competent authority issued the warning
\nwas not made available to the Petitioner. Reference was made to the decision in
\nGovernment of Andhra Pradesh v. A. Venkata Rayudu<\/a> (2007) 1 SCC 338. Further,
\nthe decision of the I&B Ministry appeared to have been influenced by the views of
\ncertain MPs.\n<\/p>\n
(v) The warning amounted to unsubstantiated and unwarranted censorship arising from
\nnon-application of mind by the competent authority. What amounted to indecency or
\nobscenity had to be judged by the standards of a reasonable and not a hyper-sensitive
\nperson. Reference was made to the decisions in Samaresh Bose v. Amal Mitra<\/a> (1985)
\n4 SCC 289 and K.A. Abbas v. Union of India<\/a> (1970) 2 SCC 780. If TMOT could be
\nwatched by a large audience in India, then its Indian version SKS could not be said to<\/p>\n
W. P. (C) No. 879 of 2010                                                  Page 8 of 17<\/span>
\n be objectionable.\n<\/p>\n
(vi) The impugned warning should be set aside and the I & B Ministry should be
\ndirected to notify the Petitioner of the precise portions of the episodes of SKS which
\nwere objectionable and in violation of the PC. Thereafter the entire matter should be
\nplaced once again before the IMC for a fresh decision.\n<\/p>\n
15. Ms. Inderjit Sidhu, learned counsel for the I&B Ministry referred to the counter
\naffidavit as well as the additional affidavit and submitted that there was no violation of
\nthe principles of natural justice. Apart from the SCN and the opportunity to SIPL to
\nreply thereto, it was also heard and the concerns of the I&B Ministry as well as those
\nexpressed by the MPs were conveyed to SIPL. In fact, in response thereto SIPL had
\nitself agreed to shift the time slot to a later hour at night. That the programme was not
\nsuitable for unrestricted public viewing was acknowledged by SIPL itself as it had run
\ntickers and scrolls warning viewers of the adult content of the programme. This came
\nonly after the SCN was issued to it. Going by its past conduct the warning issued was
\njustified. It is submitted that the I&B Ministry had a statutory obligation to ensure that
\nthe PC was not violated and to take corrective action in case of breach of the PC.\n<\/p>\n
Is the impugned order bad for vagueness?\n<\/p>\n
16. There are several limbs to the broad submission that the impugned order is violative
\nof the principles of natural justice. One submission is that both the impugned SCN as
\nwell as the impugned order administering the warning were vague as they did not
\nspecify what portions of the episodes of SKS violated the PC. This Court notices that
\nthe SCN refers to two specific episodes telecast on 17th and 21st July 2009. The SCN
\nrefers to the anchor seeking replies to questions regarding infidelity, incest and “other
\ntaboo subjects that are not suitable for unrestricted public exhibition especially keeping
\nin view the Indian ethos and culture.” It further states that the replies to the questions
\nand the fact that the result of the polygraph test was at times contrary to the replies
\ngiven resulted “in great embarrassment not only to the participants and their families
\nbut also to the viewers watching the programme along with their families.” This
\ncannot be said to be a mechanical reproduction of the statutory provisions. It gives
\nsufficient indication as to the portion of the two episodes telecast on 17th and 21st July<\/p>\n
W. P. (C) No. 879 of 2010                                                  Page 9 of 17<\/span>
\n 2009 that were objectionable. It refers to the adult nature of the content and its
\nunsuitability for unrestricted public viewing. Therefore, neither the impugned SCN nor
\nthe impugned order can be said to be bad on the ground of vagueness.\n<\/p>\n
The decision-making process\n<\/p>\n
17. The facts emerging from the writ petition and the additional affidavit of the I&B
\nMinistry show that SIPL had a meeting with the I&B Ministry on more than one
\noccasion. The letter dated 30th July 2009 of SIPL refers to the views expressed by the
\nIMC as well as the observation of this Court while disposing of the two PILs. The
\nimpugned order was passed after meetings and discussions were held between the I&B
\nMinistry and SIPL. It cannot be said that the I&B Ministry acted in undue haste.
\nSufficient time was given to SIPL to respond to the criticism and objections voiced by
\nthe MPs.\n<\/p>\n
18. However the principal objection of SIPL is to the procedure adopted in arriving at
\nthe decision to administer the warning to SIPL. The matter was placed before the IMC
\nwhich previewed the recordings of the episodes, considered the reply submitted by
\nSIPL and then concluded that it was “not suitable for unrestricted public exhibition
\nespecially keeping in view the Indian ethos and culture”. Further, the IMC observed
\nthat the questions addressed to the participants and the replies followed by polygraph
\ntest, “resulted in great embarrassment not only to the participants and their family but
\nalso to the viewers watching the programme along with their families”.\n<\/p>\n
19. The submission of the Petitioner is that the IMC was comprised entirely of
\nbureaucrats of the government and therefore such an IMC could not be expected to
\nform an objective opinion as regards the alleged violation of the PC. The Order dated
\n25th April 2005 issued by the I&B Ministry constituting the IMC indicates that it is
\nChaired by an Additional Secretary in the I&B Ministry and has as its members eight
\nJoint Secretaries of several Ministries including Home Affairs, Law and Justice,
\nWomen and Child Development and one representative from the Advertising Council
\nof India. In other words, barring one member, the ten-member IMC is comprised
\nentirely of bureaucrats. They are not expected to possess any specialized knowledge or
\nexpertise in determining if a television programme against which there is a complaint,<\/p>\n
W. P. (C) No. 879 of 2010                                                 Page 10 of 17<\/span>
\n violates the PC. Significantly, in the IMC there is no representation of the media, the
\nproducers of television programmes, artists and civil society. The task of the IMC is a
\nsensitive one. For instance, in the present case the IMC had to determine if the two
\nepisodes of SKS violated Rules 6 (1) (a), (d), (i) and (o) of the CTN Rules. It is
\ndoubtful if an IMC comprising entirely of bureaucrats would be able to discharge that
\nresponsibility with the degree of objectivity it requires. Therefore, it is important for
\nthe IMC to have a broad-based membership reflective of the competing interests
\ninvolved in protecting the freedom of speech and expression guaranteed by the
\nConstitution.\n<\/p>\n
20. There has recently been a conscious move by the media, as part of a self-regulatory
\nexercise, to address this problem. The Indian Broadcasting Federation (\u201eIBF\u201f) has set
\nup a Broadcasting Content Complaints Council (\u201eBCCC\u201f) which is a thirteen-member
\nbody at present chaired by a retired Chief Justice of a High Court. It has twelve other
\nmembers of which four are eminent persons, four are members of national level
\nstatutory commissions and four Broadcast members. The complaint against a television
\nprogramme telecast by a broadcast service provider (\u201eBSP\u201f), who is a member of the
\nIBF, is referred first to the BCCC which hears the parties before ordering measures
\nwherever warranted. The BCCC examines if the programme complained against
\nviolates the \u201eSelf Regulatory Content Guidelines for non-news and current affairs
\ntelevision channels\u201f (\u201eSRGC\u201f). The directive issued by the BCCC is binding on the
\nmembers of the IBF. In exceptional cases, where a BSP does not carry out the BCCC\u201fs
\ndirectives, the BCCC may recommend the case to the I&B Ministry for appropriate
\naction against the BSP, as per law. It is not in dispute that the impugned warning was
\nissued to the SPC prior to the constitution of the BCCC. However, subsequent to the
\nconstitution of the BCCC, the I&B Ministry has itself been referring the complaints
\nmade to it to the BCCC. This is a tacit acknowledgement by the I&B Ministry that the
\ncomplaints received by it about objectionable content of television programmes require
\nto be examined by a broad-based expert body.\n<\/p>\n
21. In the present case, after arguments were finally heard on 11th August 2011, the
\ncase was again listed on 12th September 2011 to ascertain if the I&B Ministry would be
\nagreeable to have the matter referred to the BCCC and thereafter take a final decision<\/p>\n
W. P. (C) No. 879 of 2010                                                  Page 11 of 17<\/span>
\n after considering the views of the BCCC. Ms. Sidhu learned counsel for the
\nRespondents informed the Court at the hearing on 19th September 2011 that since a
\ndecision had already been taken by them, the I & B Ministry was not willing to have
\nthe BCCC examine the matter. Orders were then reserved by this Court.\n<\/p>\n
22. Resultantly, this Court does not have the benefit of the views of an expert broad-
\nbased body on whether the two episodes of SKS which were telecast on 17th and 21st
\nJuly 2009 were violative of any of the provisions of the PC. The determination to that
\neffect in the impugned order is based entirely on the views of the IMC, which has no
\nsuch broad-based representation of competing interests. Before examining if the
\nimpugned warning was justified, it is necessary to examine the provisions of the PC
\ninvoked in the present case.\n<\/p>\n
Regulating the content of television programmes\n<\/p>\n
23. The crux of the matter is the statutory regulation of the content of television reality
\nshows. By its very nature, television viewership of a reality show cannot be restricted.
\nAn objectionable content can if at all be “taken off” the air meaning thereby that the
\nregulatory step can at best be \u201ecorrective\u201f and not \u201epreventive\u201f. Programme producers
\nare expected to be aware of the objective standards sought to be put in place by the PC
\nand correctly gauge what is suitable for prime time unrestricted viewership. While
\ncertainly there have to be objective standards to evaluate content, from the standpoint
\nof a reasonable and not a hypersensitive viewer, the PC does give a fairly clear
\nindication of what the broad contours of those standards are. For determining if a
\nprogramme violates standards of good taste and decency [Rule 6 (1) (a) CTN Rules],
\ncontains anything obscene or defamatory [Rule 6 (1) (d)], maligns or slanders any
\nindividual in person or certain groups, segments of social, public or moral life of the
\ncountry [Rule 6 (1) (i)], or contains anything that is unsuitable for unrestricted public
\nexhibition [Rule 6 (1) (o)], the programme will have to be examined with reference to
\nspecific scenes, dialogues, visuals, their manner of presentation and \u201esubject matter
\ntreatment\u201f. There would inevitably be an element of subjectivity in the exercise of
\ndetermining whether a particular programme, or any portion of it, violates the PC. This
\nin turn would determine the suitability of the show for being slotted at an hour where
\nthere is likely to be maximum public viewership.\n<\/p>\n
W. P. (C) No. 879 of 2010                                                   Page 12 of 17<\/span><\/p>\n
 24. The suitability of the content concerns two broad areas: suitability of what should
\nbe seen and suitability as to who should see it. The answer to those questions will in
\nturn determine the appropriate time at which the programme should be telecast. While
\nRule 6 (1) (a), (d) and (i) CTN Rules which have been invoked by the I&B Ministry in
\nthe present case deal with the aspect of the suitability of the actual content of the two
\nepisodes, Rule 6 (1) (o) CTN Rules deals with the time slotting of a programme having
\nregard to the overall nature of its content. Television as a medium has a wide reach and
\na range of audience and it is not possible to \u201erestrict\u201f viewership. On the other hand,
\ncinema films are subject to censorship through a fairly elaborate process under the
\nCinematograph Act, 1952 and are certified as U, U\/A, A and S depending on the
\nperceived suitability of the film for being viewed universally or by a restricted
\naudience.\n<\/p>\n
25. For television programmes, for the first time in India, the IBF has come up with the
\nSRGC which talks of two broad categories of television programmes “according to
\ntheme, subject matter treatment and audio visual depiction” as \u201eGenerally Accessible\u201f
\n(G) and \u201eRestricted Access\u201f (R). Category G programmes “are suitable for unrestricted
\nviewing by all viewers and\/or under Parental Guidance”. Category R is for “restricted
\nprogrammes that are not meant for children and young viewers.” Category G
\nprogrammes can be broadcast “at all times” whereas Category R programmes can be
\nscheduled for being telecast only between 11 pm and 5 am. The SRGC is eponymously
\nself regulatory and the BSP is expected to follow the norms concerning categorization
\nof a programme as \u201eG\u201f or \u201eR. Thus the BSP is expected to be sensitive to what is
\nacceptable from the point of view of Indian ethos and culture. As at present, in terms of
\nthe SRGC, a complaint concerning the content of a programme can be made to the
\nBCCC. The BCCC then reviews the particular programme complained against and
\ndetermines, inter alia, in light of the SRGC, if it is sustainable and if so whether any
\ncorrective is called for. Further, in applying an objective standard, the BCCC or any
\nsuch expert body cold seek guidance from the large body of judicial decisions, some of
\nwhich have been referred to by learned senior counsel for the Petitioner. The BCCC\u201fs
\ndecision is binding on the BSP, but where the BSP does not comply with its directive,
\nthe BCCC can write to the I&B Ministry for corrective action.\n<\/p>\n
W. P. (C) No. 879 of 2010                                                  Page 13 of 17<\/span><\/p>\n
 The distinction between two sets of violations of the Programme Code\n<\/p>\n
26. As earlier observed, the determination by the Respondent that the two episodes of
\nSKS violate Rules 6 (1) (a), (d) (i) and (o) of the CTN Rules is based on the opinion of
\nthe IMC and not a broad-based body like the BCCC. Yet, for reasons set out hereafter,
\nfor the purposes of the present case, it may not be necessary for this Court to determine
\nwhether the two episodes of SKS violate Rules 6 (1) (a), (d) and (i) CTN Rules if,
\nindependent of those provisions, the overall theme of SKS is found to be such that it
\nrequires to be categorized as \u201eunsuitable for unrestricted public exhibition\u201f in terms of
\nRule 6 (1) (o). In such event, the conscious act of the SIPL to slot the programme for
\ntelecast at a prime time would call for corrective action. In other words, for the
\npurposes of the present case, it is possible to draw a distinction between the alleged
\nviolation of Rules 6 (1) (a), (d) and (i) on the one hand and the violation of Rule 6 (1)\n<\/p>\n
(o) on the other.\n<\/p>\n
27. To explain further, a significant aspect both under the PC and the self-regulatory
\nregime of the SRGC is that if a BSP is in violation of either, the remedy is only a post-
\ntelecast corrective. Consistent with the extant policy of the government, there is no pre-
\ncensorship of television programmes. Most programmes, including \u201ereality\u201f shows, are
\nnot necessarily broadcast \u201elive\u201f. They are usually recorded in advance and carefully
\nedited. Therefore, an informed decision can be taken by a BSP on whether the
\nprogramme is under the G or the R category and this in turn would dictate the time
\nwhen it should be telecast. In fact the SRGC envisages a process of \u201eself-certification\u201f
\nby the BSP. Even where a BSP may be unclear whether a particular scene or dialogue
\nor visual offends Rules 6 (1) (a), (d) or (i), it may not be difficult for the BSP to decide
\nwhether, given the overall theme and nature of its content, a programme is suitable for
\nunrestricted public exhibition with reference to Rule 6 (1) (o) CTN Rules.\n<\/p>\n
28. A second aspect is that it is not practically and technologically feasible to \u201erestrict\u201f
\nviewership of television programmes. Much of the responsibility of ensuring that an R
\ncategory programme is not watched by a young person is on the viewer. Aware of this
\nlimitation, a BSP usually runs tickers and warnings even while the telecast is in
\nprogress, stating that the programme is for restricted viewership. But even this may not
\nbe enough to ensure that young persons do not watch it. A third aspect, which is widely<\/p>\n
W. P. (C) No. 879 of 2010                                                    Page 14 of 17<\/span>
\n acknowledged, is that commercial considerations drive the decision of a BSP to slot a
\nprogramme at \u201eprime time\u201f. A BSP that wants to maximize commercial gains by
\nslotting an adult programme in prime time, knowing well that it is not suitable for
\nunrestricted public exhibition, attracts only an absorbable risk of a post-telecast
\ncorrective being applied. That corrective too is usually in the form of re-slotting the
\nprogramme at a time when it should appropriately be telecast. In the circumstances, a
\ndeliberate erroneous time slotting of a programme for telecast by a BSP, resulting in
\nviolation of Rule 6 (1) (o) of the CTN Rules, ought not to be viewed lightly.\n<\/p>\n
The impugned warning\n<\/p>\n
29. In the present case, while there is a dispute between SIPL and the I&B Ministry on
\nwhether the two episodes of SKS violated Rules 6 (1) (a), (d) and (i), there appears to
\nbe no dispute that the overall content was of an adult nature and therefore not fit for
\nunrestricted public viewing. That SIPL was conscious of the nature and content of the
\nprogramme is evident from the fact that it thought it fit to place an advisory and run
\nscrolls and tickers during the telecast of the programme. In its letter dated 9th
\nSeptember 2009, SIPL stated that it had inserted a summarised version of “voice over”,
\nboth in Hindi and English, in addition to the existing visual advisory shown in text “in
\norder to ensure that the message is not lost and to make it more comprehensible to the
\nviewer”. After the interactions with the I&B Ministry, the Petitioner also decided to
\nseek the guidance of an advisory panel of eminent Indian personalities in order to
\nensure that the “content broadcast on our channel is in consonance and compliance
\nwith the Content Code”. The other steps, including shifting the time slot to 11 pm, and
\nthe communications sent to the Chief Editors of news channels to desist from using the
\nfootage of the programme as part of news were also mentioned.\n<\/p>\n
30. Interestingly, SIPL has also tacitly acknowledged the imminent risk of 24 hour
\nnews channels sensationalising the embarrassing revelations concerning the private
\nlives of the contestants, thus whetting the voyeuristic instincts of the viewers that
\ntelevision as a medium increasingly seems to encourage. In its letter dated 9th
\nSeptember 2009 to the I&B Ministry SIPL stated as under:\n<\/p>\n
                “Thereafter, we had also been monitoring the use of the
\n                footages by the news channels for any copyright violations.
\n                It was found that certain news channels were running half
\nW. P. (C) No. 879 of 2010                                                 Page 15 of 17<\/span>
\n                 hour or longer special stories on our program solely with
\n                the intention to increase their TRPs by sensationalisation of
\n                the issues relating our program.\n<\/p><\/blockquote>\n
                We promptly addressed notices to these channels calling
\n                upon them to cease and desist from resorting to
\n                infringement of our channel\u201fs copyrights. Additionally, we
\n                also requested the News Broadcasters Association (NBA) to
\n                issue an advisory to its members in this regard. Please find
\n                enclosed herewith copies of some of the notices sent by us
\n                and responses received thereto.\n<\/p><\/blockquote>\n
                Unlike in other international jurisdictions, there are no clear
\n                guidelines on the issue of use of copyrighted content for
\n                news reporting. There are some entities in the news
\n                business which believe that copyrighted content could be
\n                unrestrictedly used for news reporting. It is perhaps on
\n                account of this reason as well that several news channels
\n                resorted to carrying extensive footage of the programme.”\n<\/p><\/blockquote>\n
31. The core content of SKS is the public display of private moments of personal
\nembarrassment. Whether this could be termed as \u201eunabashed\u201f or \u201euninhibited\u201f is a
\nmatter of individual perspective. It would require a mature audience to not think of
\nsuch display as an invitation to invade the privacy of others. Informed viewers of
\nrational choice might be able to \u201eswitch off\u201f or \u201esurf away\u201f from SKS when they find
\nthat it offends their sensibilities. But that cannot be said of every viewer. By running
\nscrolls, tickers and advisories warning viewers of the adult content of SKS, SIPL
\nacknowledged that it was not meant for unrestricted public viewing. In other words, it
\nwas conscious that the programme attracted Rule 6 (1) (o) CTN Rules. Yet, it took a
\nchance by slotting SKS at prime time in order to maximize on the unrestricted public
\nviewership. Faced with the protests, voiced through MPs in the Rajya Sabha, SIPL
\nshifted SKS to a non-prime time slot. SIPL also constituted its own advisory panel to
\navoid future breaches by it of the PC. SIPL cannot be heard to say that what was being
\nobjected to was not known to it.\n<\/p>\n
32. Consequently, de hors the question whether the two episodes of SKS violated Rules
\n6 (1) (a), (d) and (i) CTN Rules, there appears to be little doubt that it did violate Rule
\n6 (1) (o). In view of this conclusion, the remand of the matter to the I&B Ministry for a
\nfresh decision on whether the two episodes of SKS telecast on 17th and 21st July 2009<\/p>\n
W. P. (C) No. 879 of 2010                                                    Page 16 of 17<\/span>
\n violated Rules 6 (1) (a), (d) and (i) CTN Rules is obviated. For telecasting the episodes
\nof SKS which were not suitable for unrestricted exhibition at prime time on 17th and
\n21st July 2009, thus violating Rule 6 (1) (o) CTN Rules, the warning administered to
\nSPC by the I&B Ministry by the impugned order was justified as a valid exercise of
\nstatutory power by the regulatory authority.\n<\/p>\n
33. For the aforementioned reasons, the writ petition is dismissed with no order as to
\ncosts.\n<\/p>\n
                                                              S. MURALIDHAR, J.\n<\/p>\n
SEPTEMBER 30, 2011
\nha<\/p>\n
W. P. (C) No. 879 of 2010                                                  Page 17 of 17<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Star India Private Limited vs Union Of India on 30 September, 2011 Author: S. Muralidhar IN THE HIGH COURT OF DELHI AT NEW DELHI W. P. (C) 879\/2010 Reserved on: August 11, 2011 Decision on: September 30, 2011 STAR INDIA PRIVATE LIMITED ….. Petitioner Through: Mr. S. Ganesh, Senior Advocate with Mr. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-102332","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nStar India Private Limited vs Union Of India on 30 September, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/star-india-private-limited-vs-union-of-india-on-30-september-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Star India Private Limited vs Union Of India on 30 September, 2011 - 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