Patna High Court
Master Antenna System Operators ... vs State Of Bihar And Ors. on 29 September, 1992
Equivalent citations: 1993(1)BLJR101
JUDGMENT Amir Das, J.
1. This writ application was admitted for its hearing by a Division Bench on 24-9-1992. In regard to the interim relief, prayed for by the petitioners, we gave indulgence to the parties to bring, if they so like, more materials on the record.
2. Heard learned Counsel for the parties at length in regard to the interim relief claimed for by the petitioners.
3. The interim prayer, as stated at page 19 of the writ petition, is to this effect that during the pendency of this writ application the respondents may be restrained from interfering with the right of distribution of the petitioners from Cable T. V. network and dish-antenna and the seal put by the respondents on the dish-antennae should be removed forthwith.
4. Mr. Kalyan Roy, learned Counsel for the petitioners, prays that in the peculiar facts and circumstances and the existing law, the petitioners are entitled to the interim relief.
5. Learned Government Pleader No. 1, on the other hand, with reference to Section 4 of the Indian Telegraph Act, 1885 (hereinafter to be referred to as the Act), Rule 472 of the Indian Telegraph Rules and page 22 of the counter-affidavit which incorporates a letter dated 27-8-92 of the Additional Secretary, Government of Bihar, Urban Development addressed to all the Collectors of the Districts and all the Superintendents of Police, prays to reject the prayer.
6. To a querry made by us as to whether the Respondents have got any authority under the Telegraph Act and the Rules framed thereunder to interfere with the affairs of the petitioners, learned Government Pleader No. 1 very frankly states that they do not derive any such authority.
7. We also wanted to know under what provision the letter, pressed into service by Mr. Learned Government Pleader No. 1, has been issued. Perusal of the letter shows that a grievance has been made by the owners of the Cinema houses that due to exhibition of films (dubbed as illegal) not only the revenue of the State is being effected but it is also giving adverse effect to their livelihood. Learned Government Pleader No. 1 has also drawn our attention to a letter dated 4-9-1992 written on behalf of M/s. World Net, 57 Circular Road, Ranchi addressed to the Deputy Collector, Ranchi Collectorate, General Department, Ranchi for granting licence to exhibit movies and entertainment programmes on its Network. Even though the said letter has not been put on affidavit, we, in the interest of justice, proceed to take into account it as well.
8. No one can ignore now the following facts, legal position, (i) right to information is now no longer a dream to be imagined sitting in air conditioned houses qua posh houses. Few Cinema house owners of the country also cannot be allowed to shoulder on themselves to become champions of right of information.
9. We are tempted to quote the following observations of the Supreme Court in its latest judgment in Life Insurance Corporation of India v. Prof. Manubhai D. Shah, reported in Judgments Today 1992 (4) SC 181 when Doordarshan in this country to accept programmes, which rejected the prayer made on behalf of the applicant who moved the Supreme Court for getting its film exhibited on the Doordarshan:
5. Speech is God's gift to mankind. Through speech a human being conveys his thoughts, sentiments and feelings to others. Freedom of Speech and expression is thus a natural right which a human being acquires on birth. It is, therefore, a basic human right. 'Everyone has the right to freedom of opinion and expression; the right includes freedom to hold opinions without interference and to seek and receive and impart information and ideas through any media and regardless of frontiers" proclaims the Universal Declaration of Human Rights (1948). The People of India declared in the Preamble of the Constitution which they gave unto themselves their resolve to secure to all citizens liberty of thought and expression. This resolve is reflected in Article 19 (1) (a) which is one of the Articles found in Part III of the Constitution which enumerates fundamental rights. That Article reads as under:
19 (1) All citizens shall have the right--
(a) to freedom of speech and expression.
10. Article 19 (2) which has relevance may also be reproduced :
19 (2) Nothing in Sub-clause (a) of Clause (1) shall effect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restriction on the exercise of the right conferred by the said sub-clause in the interest of (the sovereignty and integrity of India), the security of the State, friendly relations with foreign States, Public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
11. A constitutional provision is never static, it is ever evolving and ever changing and therefore, does not admit of a narrow, pendantic or syllogistic approach. If such an approach has been adopted by the American Court, the First Amendment--(1791) "Congress shall make no law abridging the freedom of speech, or of the press"--would have been restricted in its application to the situation then obtaining and would not have catered to the changed situation arising on account of the transformation of the print media. It was the broad approach adopted by the Court which enabled them to chart out the contours of even expanding notions of press freedom. In Dennis v. United States, 341 U. S. 494 Justice Frankfurter observed :
...The language of the First Amendment is to be read not as barren words found in a dictionary but as symbols of historic experience illuminated by the presuppositions of those who employed them.
Adopting this approach in Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, the Court rejected its earlier determination to the contrary in Mutual Film Corporation v. Industrial Commission of Ohio, 236 U. S. 230 and concluded that expression through motion pictures is included within the protection of the First Amendment. The Court thus expanded the reach of the First Amendment by placing liberal construction on the language of that provision. It will thus be seen that the American Supreme Court has always placed a broad interpretation on the constitutional provisions for the obvious reasons that the constitution has to serve the needs of an ever changing society.
12. The same trend is discernible from the decisions of the Indian Courts also It must be appreciated that the Indian Constitution has separately enshrined the fundamental rights in Part III .of the Constitution since they represent the basic values which the People of India cherished when they gave unto themselves the Constitution for free India that was with a view to ensuring that their honour, dignity and self respect will be protected in free India. They had learnt a bitter lesson from the behaviour of those in authority during the colonial rule. They were therefore, not prepared to leave anything to chance. They therefore, considered it of importance to protect specific basic; human rights by incorporating a Bill of Rights in the Constitution in the form of Fundamental Rights. These fundamental rights were intended in serve generation after generation They had to be stated in broad terms leaving scope for expansion by courts ' Such an intention must be ascribed to the Constitution makers since they had themeselves made provisions in the Constitution to bring about a socio-economic transformation. That being so, it is reasonable to infer that the Constitution makers employed a broad phraseology while drafting the fundamental rights so that they may be able to cater to the needs of a changing society. It, therefore, does not need any elaborate arguments to uohold the contention that constitutional provisions in general and fundamental rights in particular must be broadly construed unless the context other-wise requires. It seems well settled from the decisions referred to at the Bar that Constitutional provision must receive a broad interpretation and the scope and ambit of such provisions in particular the fundamental rights, should not be cut down by too a stute or too restricted an approach. See Sakal Papers (P)Ltd. v. Union of India, .
13. 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 view 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 institutions and any attempt to stifle, suffocate and gag this right would sound a death-knell to democracy and would help usher in autocracy or dictatorship. It cannot be gainsaid that modern com-munication mediums advance public interest by informing the public of the events and developments that have taken place and thereby educating the voter 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 frowaed 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 restriction 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).
14. We may now refer to the case law on the subject. In Romesh Tappar v. The State of Madras, (1950) SCR 495 this Court held that the freedom of speech and expression includes freedom'; of propagation of ideas and this freedom is ensured by the freedom of circulation. It pointed out that freedom of speech and expression are the foundation of all democratic organisation and are essential for the proper functioning of the processes of democracy. This view was reiterated in Sakal Papers Pvt. Ltd. (Supra) wherein this Court observed that the freedom of speech and expression guaranteed by Article 19 (I) (a) includes the freedom of the Press. For propagating his ideas a citizen had the right to publish them disseminate them and to circulate them, either by word of mouth or by writing. In Indian Express News Papers (Bombay) Pvt. Ltd. and Ors. etc. v. Union of India and Ors. etc., this Court after pointing out that communication needs in a democratic society should be met by the extension of specific rights e.g. the right to be informed, the right to inform, the right privacy, the right to participate in public communications, the right to communicate, etc., proceeded to observe at page 316 as follows:
In today's free world freedom of Press is the heard of social and political intercourse. The press has now assumed the role of the public educator making formal and non-formal education possible in large scale particularly in the developing world where television and other kinds of modern communication are not still available for all sections of society. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments. Newspaper being surveyors of news and views having a bearing on public administration very often carry material which would not be palatable to Governments and other authorities. The authors of the article which are published in the newpapers have to be critical of the action of the Government in order to expose its weaknesses. Such articles tend to become an irritant or even a threat to power. This Court pointed out that the constitutional guarantee of the freedom of speech and expression is not so much for the benefit of the press as it is for the benefit of the public. The people have a right to be informed of the developments that take place in a democratic process and the press plays a vital role in disseminating this information. Neither the Government, nor any instrumentality of the Government or any public sector undertaking run with the help of public funds can shy away from articles which expose weaknesses in its functioning and which in given cases pose a threat to their power by attempting to create obstacles in the information percolating to the members of the Community.
15. The applicability of the aformentioned declaration of the law by the Supreme Court interpreting Article 19 of the Constitution of India has to be considered in this case and cannot be ignored even at this stage which considered this judgment, the aformentioned declaration compells us to taks a prima facie view in favour of the petitioners for granting interim relief to them.
16. We think that the petitioners are serving the Society, against a nominal charge, in furnishing to the extent what is going on latest in the world. The question prima facie, before us is, however, as to whether the petitioner's right guaranteed under Article 19 has been fabridged/infringed by the action of the Respondents.
17. Admittedly none of the Respondents have got any authority under the Telegraph Act and/or the rules framed thereunder to proceed against the petitioners. Perusal of the impugned annexures (Annexures 4 and 4/1) does not show that the petitioners were exhibiting any Cinema. What has been stated therein is that they were illegally operating cable T. V. Television It does not appear from perusal of Annexures-4 and 4/1 that the place in which the cable T. V. has in operation is a public place. It is also not the case of the Respondents that the cables supplied by the petitioners have been connected with any public place. In this view of the matter, we are prima facie of the view that the decision of this Court in Mangalam v. State of Bihar, 1985 PLJR 326, strongly pressed into service by the learned Government Pleader No. 1 has no application.
18. In view of the findings recorded as above, we are prima facie of the view that the impugned orders/directions as contained in Annexures-4 and 4/1 cannot be sustaind in the eye of law at the instance of the Respondents. We accordingly direct the Respondents to release the articles seized to the petitioners forthwith. We, however, in order to safeguard the claim of the Respondents, which has to be finally adjudicated by this Court, direct the petitioners to collect the articles after giving an undertaking that they will return them to the Respondents if this Court ultimately directs to do so.
19. Before we part, we express no opinion in regard to the application made by petitioner No. 4 M/s. World Net before the Deputy Commissioner for grant of licence and it will be for the Deputy Commissioner concerned to pass orders in accordance with law thereon. We further clarify that we have passed this order taking into account the statements made in the impugned Annexures-4 and 4/1 and we had refraind ourselves in commencing upon the other allegations made in the counter-affidavit.
20. We, in view of the importance of the issue involved in this writ application, request the Hon'ble the Chief Justice to place this case for its hearing before an appropriate Bench immediately after the ensuring Puja vacation.
21. Let a copy of this order be handed over to learned Government pleader No. 1 for the immediate compliance.