Telecast Tussle: A Sorry Spectacle
by Madhavi Divan1
Cite as : (2004) 4 SCC (Jour) 52
India is a country of curious contradictions. Technological developments have raced ahead with the satellite invasion but the law has been left lagging hopelessly behind, culminating in a near anarchical impasse in the broadcasting arena. In a cricket-crazy nation where access to televised sport has become an inviolable right of its citizens, to have no organised regulatory mechanism for the broadcasting media is a serious matter. Four years into the new millennium, we are still governed by the antediluvian Telegraph Act of 1888, enacted at a time and in a context that could never even have anticipated the modern-day broadcasting revolution. Nearly a decade ago, in the Hero Cup2 judgment, the Supreme Court had lamented the lacunae in this area of the law and had directed the immediate establishment of an autonomous broadcasting authority to control and regulate the broadcasting media.3 The Broadcasting Bill of 1997 was introduced in response to this judgment but languished in Parliament. This Bill was to be replaced by a law on convergence which too, is yet to see the light of day. As the scramble for telecast rights of the Indo-Pak Friendship Series began nine years after the Hero Cup2 judgment, it was left once again to the Supreme Court to adjudicate on a dispute between Doordarshan and Ten Sports, to decide the nitty-gritty of who gets the right to telecast, who gets the right to advertise, who gets to enjoy the advertising revenue and so on.
The right to impart and to receive information through broadcasting media has long been recognized as part of the right to free speech and expression guaranteed under Article 19(1)(a) of the Constitution. In Odyssey Communications (P) Ltd. v. Lokvidayan Sanghatana4 the Supreme Court held that the right of a citizen to exhibit films on Doordarshan subject to certain terms and conditions is part of the fundamental right to freedom of speech and expression guaranteed under Article 19(1)(a) which can be curtailed only in the circumstances set out in Article 19(2). The Court held that this right was akin to the right of a citizen to publish his views through any other media such as newspapers, magazines, advertisements and hoardings. The same right was upheld in LIC of India v. Prof. Manubhai D. Shah5 where the Supreme Court held that the State-controlled agency Doordarshan was not entitled to refuse the telecast of a film (in this case based on the Bhopal gas tragedy) unless it was able to make out valid grounds under Article 19(2). The right of the citizen to broadcast through broadcasting media and to receive information and entertainment through such broadcasts was discussed in the more recent judgment of the Supreme Court in the Hero Cup2 judgment.
For several decades in post-independence India, broadcasting remained the sole preserve of the State. The closely controlled broadcasting system was consonant only with the countrys closed economic system. Radio and television remained government monopolies, ostensibly for the purpose of nation-building and to serve the larger public interest but in reality they were being used as the mouthpiece of the political party in power. Doordarshan was, to all intents and purposes, an arm of the Government, being subject to political and bureaucratic controls as any other arm of the Government. Even its finances were controlled and continue to be controlled by the Government.
In the early 1990s, Doordarshan found itself overtaken by technological developments. Within a few months of the Gulf War, the Hong Kong-based Star TV started broadcasting five channels in India using the ASIASAT One satellite. By early 1992, close to half a million homes were receiving Star TV telecasts. By 1995, about 13 million homes were receiving cable and satellite channels.
During this period, a number of satellite-based television services were also launched. By late 1995, there were as many as 12 satellite-based channels available in India. All of the services were uplinked from locations outside India because the Government had monopolised the right to uplink from within the country for its own broadcasting organisations. This was nothing short of a revolution.
The initial reaction of the Government to the satellite invasion was one of inertia. It took no action to contain the transmissions or regulate their content. Perhaps this had to do with the sheer helplessness of the Government in enforcing a ban on terrestrial redistribution services. It was not till the enactment of the Cable Television Network Regulation Act, 1995 that cable services came to be regulated. But this legislation was confined to the regulation of cable operators and did not extend to the regulation of telecasting rights.
In February 1995, the Supreme Court delivered a landmark judgment in Ministry of Information and Broadcasting v. Cricket Assn. of Bengal2 (the Hero Cup judgment). The case involved the rights of a cricket association to grant telecast rights to an agency of its choice. In 1993, CAB (Cricket Association of Bengal) signed a contract with Transworld International (TWI), a foreign sports television service, giving it the right to telecast the six-nation Hero Cup Cricket Tournament. The contract was signed after TWI put in the highest bid in a global tender that included Doordarshan. Before entering into this deal, CAB had made repeated offers to Doordarshan to purchase telecast rights knowing that unless Doordarshan telecast the matches by becoming the host broadcaster or by acquiring these rights from a third-party host broadcaster, the vast majority of people in India would not be able to view the matches. But Doordarshan was willing to offer no more than Rs 1 crore, a fraction of what CAB considered an appropriate price for telecast rights. When Doordarshan learned of the deal with TWI, it announced its unwillingness to negotiate with TWI and ruled out the question of paying TWI any fee to telecast the matches. On the contrary, Doordarshan announced that it would charge CAB a production charge/technical fee to telecast the matches at the rate of Rs 5 lakhs per match. Doordarshan launched a series of arm-twisting tactics to stall TWIs telecast. It accused TWI of violating Indian Foreign Exchange Rules and had its equipment seized by the Customs Authority. Attempts were made to prevent the telecast on the ground that no licence had been obtained under the Telegraph Act, 1885 and the Wireless Telegraphy Act, 1933. This was despite the fact that TWI had availed of permission from VSNL for the purpose of uplinking and VSNL had received payment in this connection. Around the same time, Akashvani also announced its decision not to cover the matches on the ground that the national broadcaster Doordarshan had allegedly been denied the facility of nominating the host broadcasters signal. CAB was even accused of bartering away the countrys honour by accepting the Rs 170 million offer of TWI over the Rs 10 million offer made by Doordarshan.
In its judgment, ostensibly upholding the right of TWI to telecast the tournament live, the Supreme Court held that no private individual or organization, Government or governmental organisation is entitled to monopolise or exercise any exclusive rights over broadcasting or electronic media. The Court emphasised that monopoly over broadcasting was inconsistent with the fundamental right of speech and that monopoly by the Government would amount to controls in the hands of the political party in power which was likely to result in information being biased in favour of the party. Sawant, J. held:
Broadcasting is a means of communication and, therefore, a medium of speech and expression. Hence in a democratic polity, neither any private individual, institution or organization nor any Government or government organization can claim exclusive right over it. Our Constitution also forbids monopoly either in the print or electronic media. The monopoly permitted by our Constitution is only in respect of carrying on a trade, business, industry or service under Article 19(6) to subserve the interests of the general public. However, the monopoly in broadcasting and telecasting is often claimed by the Government to utilize the public resources in the form of the limited frequencies available for the benefit of the society at large. It is justified by the Government to prevent the concentration of the frequencies in the hands of the rich few who can monopolise the dissemination of views and information to suit their interests and thus in fact to control and manipulate public opinion in effect smothering the right to freedom of speech and expression and freedom of information of others. The claim to monopoly made on this ground may, however, lose all its raison dêtre if either any section of the society is unreasonably denied an access to broadcasting or the governmental agency claims exclusive right to prepare and relay programmes. The ground is further not available when those claiming an access either do not make a demand on the limited frequencies controlled by the Government or claim the frequency which is not utilized and is available for transmission. The Government sometimes claims monopoly also on the ground that having regard to all-pervasive presence and impact of the electronic media, it may be utilized for purposes not permitted by law and the damage done by private broadcasters may be irreparable. There is much to be said in favour of this view and it is for this reason that the regulatory provisions including those for granting licences to private broadcasting where it is permitted, are enacted. On the other hand, if the Government is vested with an unbridled discretion to grant or refuse to grant the licence or access to the media, the reason for creating monopoly will lose its validity. For then it is the Government which will be enabled to effectively suppress the freedom of speech and expression instead of protecting it and utilizing the licensing power strictly for the purposes for which it is conferred. It is for this reason that in most of the democratic countries an independent autonomous broadcasting authority is created to control all aspects of the operation of the electronic media. Such authority is representative of all sections of the society and is free from control of the political and administrative executive of the State.6
Similarly, Jeevan Reddy, J. observed:
A monopoly over broadcasting, whether by Government, or by anybody else, is inconsistent with the free speech right of the citizens. State control really means governmental control, which in turn means, control of the political party or parties in power for the time being. Such control is bound to colour the views, information and opinions conveyed by the media. The free speech right of the citizens is better served in keeping the broadcasting media under the control of public. ... and other controls are not prescribed.7
While condemning the monopoly of Doordarshan, the Court was reluctant to allow private broadcasting which was guided by a profit motive and was, therefore, capable of misuse. The rights of the private broadcaster were qualified by restrictions in addition to those found under Article 19(2). This was on account of the limited availability of airwaves required for the purpose of broadcasting, which being in the domain of public property could not be allowed to be manipulated by the Government or by private lobbies. The Court felt that the analogy with the press was inappropriate. The solution was, according to the Court, to bring the broadcasting media under the control of the public as distinct from Government8. (emphasis in original) Accordingly, the Court directed the establishment of an autonomous broadcasting authority that would safeguard the interests of the public as opposed to the government or private interests.9
Inexplicably, however, despite condemning Doordarshan for trying to retain its monopoly over the broadcasting media, the Court effectively allowed Doordarshan to do just that. So as to protect the right of the viewer to watch cricket, the Court directed that Doordarshan would get to enjoy not only exclusive telecasting rights in India but also the right to enjoy part of the advertising revenue.10 What is more, TWI was made to pay Doordarshan Rs 5 lakhs per match as production charges/technical fees. So much for TWI having won exclusive telecast rights in a global tender at a staggering price; so much for the sanctity of a contract that a foreign party enters into in India. In all likelihood, TWI may well not have bid for the contract at all had it known that it would not be allowed to show matches in India.
The ruling was justified in the public interest. While limiting the right of the telecaster on one hand, the Supreme Court treated as paramount the right of the viewer to receive information and entertainment through the broadcasting media. Indeed, the right to watch televised cricket was elevated, virtually, to the status of a fundamental right. The Court held:
their (the viewers) rights would very much be trampled if the cricket matches are not telecast through Doordarshan, which has the monopoly of the national telecasting network. ... it cannot be denied that a vast section of the people in this country is interested in viewing the cricket matches. The game of cricket is by far the most popular in all parts of the country. This is evident from the overflowing stadia at the venues wherever the matches are played and they are played all over the country. It will not be an exaggeration to say that at least one in three persons, if not more, is interested in viewing the cricket matches. Almost all television sets are switched on to view the matches. Those who do not have a TV set of their own crowd around TV sets of others when the matches are on.11
In a country where cricket is a national passion, the Court felt it was unfair to deprive people without access to pay channels of the enjoyment of televised sport. The right to circulation and dissemination was after all an integral part of the right to free speech:
If the right to freedom of speech and expression includes the right to disseminate information to as wide a section of the population as is possible, the access which enables the right to be so exercised is also an integral part of the said right.12
It is not in India alone, that the law has reached out to protect the rights of the citizen to watch sporting events of national significance. The world over, agreements are commonly made for the grant of exclusive telecast rights by organisers of sports events to television operators. Exclusivity brings economic advantages to broadcasting companies and to organisers of the sports events. However, exclusive arrangements may be disadvantageous to viewers when rights are acquired by pay television distributors which is accessible only to a small proportion of viewers. In order to overcome such results, countries such as UK and Australia have passed what are known as anti-siphoning laws which are designed to prevent the exclusive broadcasting of major sporting events on broadcasting. These laws restrict pay-television licensees from acquiring the right to televise certain listed events of national or cultural importance unless a national or commercial free-to-air broadcaster also has a right to televise the event. Such anti-siphoning provisions were also sought to be introduced in India. Sections 23 and 32(2)(r) of the Broadcasting Bill, 1997 prohibits any private broadcasters, including pay-television and free-to-air broadcasters, from carrying a live broadcast of certain listed sporting and other events of national or international interest held in India without the consent of the Indian Broadcasting Authority unless AIR and Doordarshan have also been given the same broadcasting rights. Section 31(2) of the Convergence Bill, 2001 provides that a national or international event of general public interest has to be carried on the network of a public broadcaster. Sub-section (3) of Section 31 provides that in order to attain a level playing field for bidders of telecasting events, the Convergence Commission would determine, prior to the event, the principles and terms for access to the network of the public service broadcaster. However, these provisions do not enjoy the force of law at present.
In the meantime, Doordarshan continues to bask in its monopoly and blatantly misuse it on occasion. Notwithstanding that a contract may have been awarded to any private party in respect of exclusive telecast rights, Doordarshan manages to hijack the show on the pretext of its wider accessibility to the public through infrastructure set up over decades of monopoly. One such unhappy instance was the manner in which Doordarshan proceeded to telecast the first India-Pakistan cricket match in the Friendship Series with scant regard for the rights of Ten Sports who had spent a staggering sum to acquire exclusive rights.13 Ironically, the very monopoly which the Hero Cup2 judgment sought to end has been reinforced in the guise of the public interest in watching cricket. Parliament has been dragging its feet for far too long on this subject. The sheer absence of a law that regulates this area has only enabled the Government to enrich itself by exploiting its monopoly and overriding the sanctity of contract. It is time that laws were brought into effect to comprehensively cover broadcasting media and more specifically, to bring about a balance between the public interest and the rights of the private broadcaster.14
As a nation that prides itself on its vibrant and multifaceted freedom of expression, it is time we ensured that we do not have to burden the highest court in this country with the petty task of settling squabbles between Doordarshan and private broadcasters.