In February, India's Supreme Court held the government's broadcasting monopoly unconstitutional. This, the first in a series of reports on information law, examines the judgement's background, and its implications on communications and electronic publishing
Sixty-two years before India's independence in 1947, the British colonial government passed legislation granting them, in effect, a monopoly over communications and broadcasting. Later, the newly powerful politicians of the newly independent nation found the British law, suited to an occupying power, too convenient to modify in any but the most minor of ways. So things remained, until a relatively trivial tussle over sponsorship revenues from a cricket tournament resulted in a landmark Supreme Court verdict declaring much of the Indian Telegraph Act unconstitutional and "totally inadequate [for the] broadcasting media."
The dispute was between the Ministry of Information and Broadcasting (I&B) on behalf of the state-owned TV network, Doordarshan, and the Cricket Association Bengal (CAB). The CAB wanted to sell world broadcast rights to a sporting event - the "Hero Cup Tournament" to be held in November 1993 - to TransWorld International (TWI), as the Doordarshan bid was thought to be too low. TWI's transmission equipment was seized by customs authorities in Bombay, apparently on instructions from the Department of Telecommunications (DoT), which objected to this violation of the rights of the overseas communications monopoly, Videsh Sanchar Nigam Limited (VSNL). The CAB and TWI then asked VSNL for permission to use the latter's satellite uplinking facilities (for a fee, naturally). VSNL agreed, but the I&B Ministry pulled strings and the DoT clamped down on the errant public-sector company.
A compromise was ordered by the Calcutta High Court in time for the match. The government was not pleased with the precedent it would set, and already faced pressure from the Board of Cricket Control India (BCCI), which wanted to sell world broadcast rights to the 1996 World Cup to the American ESPN network. The CAB was not happy either, and both appealed to the Supreme Court.
In its verdict on 9th February, the three-judge bench of the Supreme Court said that there was no right to broadcast implied by Article 19(1)(a) of the Constitution, which guarantees Indians freedom of expression. The majority judgement of Justices P B Sawant and S Mohan gave as a reason the limited and public nature of the airwaves, although they conceded citizens' right to "have an access to telecasting" in principle. The minority judgement, written by Justice B P Jeevan Reddy, held that "public" - as different from "government" - broadcasting is implicit in the Constitution; the right to establish private TV stations is a matter for Parliament to decide.
Both judgements, however, agreed that the right to "impart and receive information" was implicit in the right to freedom of expression. The Justices cited, as they did throughout their judgements, the laws of the US, Britain, and other European countries including France (whose Declaration of the Rights of Man enshrined free speech two years before the First Amendment to the American Constitution). They took this right to mean access to a plurality of views, and said that any new legislation on broadcasting should ensure the diversity of content.
Article 19(6) of the Constitution allows monopolies in business activities. The Court held that this clause limits Article 19(1)(g) - the right to trade and conduct business - but that broadcasting, being a means of expression and therefore covered by Article 19(1)(a), could not be monopolised, whether by the government or private companies. It clarified that "Merely because an organisation may earn profit from an activity whose character is predominantly covered by Article 19(1)(a) [expression], it would not convert the activity into one involving Article 19(1)(g) [business, in which monopolies are not unconstitutional]."
While acknowledging the government's oft-repeated claim that its monopoly on broadcasting was to best utilise limited frequencies "for the benefit of society at large," the Court felt that this claim rang hollow if "any section of society is unreasonably denied an access to broadcasting," or if "the governmental agency claims [an] exclusive right to prepare and relay programmes." It also found the claim inappropriate given that those wanting to broadcast, such as the CAB, "do not make a demand [on] limited frequencies" and want bandwidth unused by the government.
As for the "national security" plea, based on the "sensitive" nature of the electronic media, that "the damage done by private broadcasters may be irreparable," the Court finds "much to be said in [its] favour," and suggests regulation and licencing as a remedy. However, if the government could grant or refuse to grant licences at its "unbridled discretion," then it would be able to "suppress the freedom of speech [instead] of protecting it" and using its licencing authority correctly. So the Court recommends an autonomous broadcasting authority independent of the government to "control all aspects of the operation of the electronic media" - which is, in fact, what the government it planning to do (see Freeing the airwaves).
The Indian Telegraph Act, which Justice Reddy finds "totally inadequate" to govern broadcasting media, is not so for communications. It does give the government a monopoly on communications, and although this aspect of the Act will change thanks to the government's need for investment in infrastructure (see Reforming telecom), it is not considered unconstitutional. For, as former Solicitor-General of India Soli Sorabjee told the Indian Techonomist, "communications is a business activity, and therefore covered by Article 19(6)," which allows monopolies.
That may be so for the telegraph, and even the telephone. But is it true of the Internet? Not entirely. Although ordinary e-mail - a field in which private companies have recently been allowed entry - would be considered business activity susceptible to monopolies and restrictive practices by the government, things change with news groups, mailing lists or World Wide Web pages. These are, like fax broadcasting, publishing activities, and should get the same freedom of expression protection (from monopolies, among other things) that TV does. Mr Sorabjee agrees that this "is arguable," although the solutions are more complicated than with TV and radio, which cannot be used for private communications.
The Techonomist spoke to former Chief Justice of India P N Bhagwati, who agreed that electronic expression over data networks would be "covered 100%" by Article 19(1)(a). He did not see the commercial use of networks as coming in the way for, as with the judgement's comment on broadcasting, if "the main thrust of the activity" is expression, then it receives Constitutional protections and cannot be a monopoly.
Justice Bhagwati does make a clear distinction between what is and is not expression. In his example, LEXIS, the American on-line service that provides access to case law, is a business activity, while an Internet mailing list that discusses law is not. Nor is an electronical journal commenting on legal issues, even if it does make a profit through advertisements or subscriptions.
When informed of the legal opinion on this dual nature of data communications, Telecom Secretary R K Takkar agreed that it is something that needs looking into. However, the Department of Telecommunications (DoT) has so far appeared to believe that business correspondence is the sole purpose of electronic networking. Although it does not run a networking monopoly, the DoT does charge stiff licence fees, arbitrarily set at, in practice, around 20% of revenue. This will change, according to Mr Takkar - who, having discovered the difference between data networking and telecom business models, feels the need to be "educated" (see Bandwidth restraint). If it does not, then according to Justice Bhagwati - rumoured as likely to head the Telecom Regulatory Authority of India - the restrictive licencing policies "would be struck down in court."
What has been the government reaction to the Supreme Court judgement? Says Bhaskar Ghose, Secretary, Information and Broadcasting, "[the I&B ministry has] welcomed the judgement," particularly regarding the freeing of the airwaves and allowing private TV and radio stations, "because that fitted in very much with the kind of thinking that the government itself was trying to put across." Moreover, "the ministry [had] a proposal before the Cabinet [on private broadcasters]" long before the judgement "came in and sort of reinforced [what] we were saying." Mr Ghose, who is known for his personally progressive views on the media, did not discuss why Doordarshan and the CAB started a legal battle at all, given such farsighted planning within the Ministry.
Although the Prasar Bharati Bill - which is "purely a conversion of Doordarshan and All India Radio into a [public] corporation" of the sort that Justice Reddy might approve - is well known to have been gathering dust over the years, the proposal for privatisation "is to permit private TV stations to come in," and what the Court said "gave the legal sanctity, the basis [to it]."
The government will soon be "in a position to do exactly what the Supreme Court has asked us to do," says Mr Ghose, who views the threat of private organisations flocking to the airwaves with equanimity. "If a person has a right [to the airwaves], then automatically it means he can exercise the right" - and set up stations, albeit regulated.
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This article is from the Indian Techonomist (http://dxm.org/techonomist/), the newsletter on India's information industry. Annual subscription (monthly print edition plus e-mail bulletins) is for US$ 595 or equivalent. For information, contact Rishab Ghosh by e-mail at rishab@dxm.org, call +91 11 2454717 or post to A4/204 Ekta Apts, 9 I.P. Extn, New Delhi 110092, INDIA.