Air Waves are Public Property: Broadcasting and freedom of speech in India
The absence of broadcasting litigation is glaring but not surprising, given that all broadcasting was in the hands of the state. It is not as though the courts were not presented with challenges to the monopoly of the state over broadcasting, but in all the early cases on broadcasting, the monopoly of the state was upheld. This is underlined by a slew of cases, including Prakash Vir Shatri v. Union of India, 1974, AB Shorawal v. LK Advani, 1977 and P Lakhanpal v. Union of India,1982.
The exception to this glaring omission is the domain of popular cinema. Cinema was the only medium that was subject to pre-censorship (wherein a text is refused circulation until it has been cleared by censorial authorities. A movie for instance can only circulate after it has been cleared by the censor board. In the case of a book, you do not need any permission to publish the book, even though subsequent action can be taken against the book on various grounds) and pre-censorship was held to be valid.
The most significant landmark in the battle between cinema and the law is of course the Supreme Court case, K.A.Abbas v. Union of India. The landmark judgment tested for the first time, the constitutional validity of pre-censorship for cinema. The significance of the case arises from the fact that the petitioner had actually won the battle against the censor board, but he subsequently amended his petition to raise a larger constitutional challenge, that ‘pre-censorship’ for cinema was in violation of Art. 19(1)(a) or the fundamental right of freedom of speech and expression. The case therefore dealt with the question of cinema as an institution itself, and still remains the leading judgment pronounced by the Supreme Court on the question. A reading of Abbas’s autobiography, I am not an island: An Experiment in Autobiography, (New Delhi: Vikas, 1997), suggests that the film was made for no other purpose than to challenge the constitutional validity of pre-censorship for cinema.
In the Abbas case, the Court upholding the differential treatment afforded to cinema had to construct an argument of difference, which distinguishes cinema from any other medium. Justice Hidayatullah does this by holding that
"It has been almost universally recognized that the treatment of motion pictures must be different from that of other forms of art and expression. This arises from the instant appeal of the motion picture, its versatility, realism (often surrealism), and its co-ordination of the visual and aural senses. The art of the cameraman, with trick photography, vistavision and three-dimensional representation thrown in, has made the cinema picture more true to life than even the theatre or indeed any other form of representative art. The motion picture is able to stir up emotions more deeply than any other product of art. Its effect particularly on children and adolescents is very great since their immaturity makes them more willingly suspend their disbelief than mature men and women. They also remember the action in the picture and try to emulate or imitate what they have seen. Therefore classification of films into two categories of 'U' films and 'A' films is a reasonable classification. It is also for this reason that motion pictures must be regarded differently from other forms of speech and expression. A person reading a book or other writing nor hearing a speech or viewing a painting or sculpture is not so deeply stirred as by seeing a motion picture. Therefore the treatment of the latter on a different footing is also a valid classification"
The Court quoted the Khosla Report, 1968 saying that "even if we believe that a novelist or a painter or a musician should be free to write, paint and compose music without the interference of the State machinery, I doubt if anyone will advocate the same freedom to be extended to the commercial exploitation of a powerful medium of expression and entertainment like the cinema. One can imagine the results if an unbridled commercial cinema is allowed to cater to the lowest common denominator of popular taste, specially in a country which, after two centuries of political and cultural domination, is still suffering from a confusion and debasement of cultural values. Freedom of expression cannot, and should not, be interpreted as a licence for the cinemagnates to make money by pandering to, and thereby propagating, shoddy and vulgar taste." Pre-censorship was therefore held to be valid (in the context) and the distinction made between films and other media fell under Art.19(2).
Television and the New Public Sphere
The 1982 Asian games held in Delhi paved the way for a broadcast revolution in India. The Asian games suddenly made the television a household commodity, and even though it would be atleast another ten years before the satellite revolution would arrive, the emergence of TV as the new mass medium suddenly raised new questions and conflicts about free speech, media and the new public sphere.
The eighties can clearly be seen as the decade of television and video, and as with all other state introduced technologies of communication, the role of TV and video was a pedagogic one, to inculcate a properly constituted public sphere of modernity. According to one of the newspapers stories of the era
"MADRAS Nov. 14. The Union Cabinet will now decide the question of introduction of colour Television in the country. Union Information Minister Vasant Sathe told newsmen here today that his Ministry had put up the proposal to the Cabinet. For external channels the Asian Games will be telecast in colour. But Internal colour transmission was still a big question mark. Mr. Sathe, said colour TV must be introduced. "Black and white is dead technology. Dead like a dodo," he said. Colour technology was the latest and India must have it. should take a quantum jump in technology where it is today instead of going back 50 years." He, however, admitted his inability to ensure that decision making on this question would be quick by saying "the inability for decision making is because of the constraints in the system of our country"Mr. Sathe said: ‘If I had my way I will go in for VCR (Video Cassettes) right away. Cassettes can be produced in thousands and they are cheap. Every village and school can screen its own video cassettes."
When the state introduced TV and video technology in the early 1980’s as the next phase of modernisation, little did it realise that its traditional ability to control and to monitor the viewing activity of its citizens would be fundamentally challenged. TV emerged as the ground for the questioning of state monopoly and video became the dark spot for the state’s gaze because hitherto, the state could regulate mass media such as cinema and radio, but video technology allowed for viewing beyond the state’s regulatory apparatus. Video and other new media allowed for decentralised, and hence uncontrolled ownership, control and consumption, and also challenged the monopoly of the state controlled media.
A series of cases on television paved the way for a judicial investigation into the relationship between broadcasting, state monopolies and the regulation of speech and expression. In Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana (1988), we see a pattern similar to Hamdard Dwakahan emerging where questions of modernity and communication were raised vis a vis the form of speech that it was articulated in.
A TV serial 'Honi-Anhoni' which dealt with the theme of ghosts, rebirth, precognition etc. was accused of being against the public interest since it spread unscientific ways of thinking and blind beliefs and that it was the duty of the State not to encourage blind beliefs amongst the public by telecasting such episodes. It is fascinating to see that a petition would be filed on the grounds of the promotion of unscientific thought. The Nehruvian dream had indeed come true. The Bombay High court had granted a stay against the screening of the last episode of the serial, and an appeal was made to the Supreme Court.
The court held that it was held that the right of citizens to exhibit films on Doordarshan subject to the terms and conditions to be imposed by the Doordarshan. Freedom of expression guaranteed under Article 19 (1) (a) which can be curtailed only under circumstances set out under Article 19 (2). The right is similar to the right of citizen to publish his views through any other media such as newspapers, magazines, advertisement hoardings etc. subject to the terms and conditions of the owners of the media. However, on the question whether a citizen has a fundamental right to establish a private broadcasting station or T. V. centre, the Court reserved its opinion for decision in an appropriate case.
The Court held that it was not the case of the writ petitioners before the High Court that the exhibition of the said serial was in contravention of any specific law or direction issued by the Government. They had also not alleged that the Doordarshan had shown any undue favour to the appellant and the sponsoring institutions resulting in any financial loss to the public exchequer. The objection to the exhibition of the film had been raised by them on the basis that it was likely to spread false or blind beliefs among the members of the public. They had not asserted any right conferred on them by any statute or acquired by them.
In S. Rangarajan v. P. Jagjivan Ram (1989), it was held that the freedom of speech under Article 19 (1) (a) means the right to express one's opinion by words of mouth, writing, printing, picture or in any other manner. It would thus include the freedom of communication and their right to propagate or publish opinion. The communication of ideas could be made through any medium, newspaper, magazine or movie.
In Life Insurance Corporation of India v. Professor Manubhai D. Shah (1992), one of the respondents (Tapan Bose) produced a documentary film on the Bhopal Gas Disaster titled "Beyond Genocide" and was awarded the Golden Lotus Award. At the time of the presentation of awards, the Central Minister for Information & Broadcasting had made a declaration that the award winning short films will be telecast on Doordarshan. The respondent submitted for telecast his film to Doordarshan but Doordarshan refused to telecast the same on the ground : "the contents being outdated do not have relevance now for the telecast."
The respondent appealed to the Minister for Information & Broadcasting, but to no avail. He, therefore, filed the writ petition, challenging the refusal on the ground of violation of his fundamental right under Article 19(1)(a) of the Constitution and for a mandamus to Doordarshan to telecast his documentary. The court held that he SC stated that "once it is recognised that a film-maker has a fundamental right under Article 19(1)(a) to exhibit his film, the party which claims that it was entitled to refuse enforcement of this right by virtue of law made under Article 19(2), the onus lies on that party to show that the film did not conform to the requirements of that law..."
In Indira Jaising, Petitioner v. Union of India (1989), the court had to deal with the claim made by the petitioner that after being interviewed for a TV program, significant deletions of her speech in the final show amounted to a violation of right to free speech. It was her case that she had a right of any sort to be interviewed for a television programme. The court said that by being invited to express her opinion, the editing of the program could not be done in a manner as to seriously distort her opinion or censor her views. It stated that
"When various interviews taken for a programme are edited, it is necessary to ensure that in the process of editing, the views expressed are correctly conveyed on the programme which is telecast. A portion of the interview may, at times, have to be deleted while editing the programme. But in the process of such deletion there should not be any gross distortion or misrepresentation of what had been said. Nor should important points raised be completely omitted".
These cases cumulatively articulate a new language around Public broadcasting which locates the standard individual right of freedom of speech and expression within the practices of a collective viewership, a practice that existed previously in the domain of cinema but was never given legal recognition as a particular kind of right.
The coming of television suddenly articulated the individual right of free speech within a much wider ambit of a collective right. In other words, you see the formal articulation of the rights of a new watching public sphere. It would take a while before radio got accorded similar privileges, but these cases had cumulatively laid the ground for the 1995 Cricket Association Board case whose famous five words "Air waves are public property" would inaugurate a new era of broadcasting laws in India.