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Calcutta High Court

Peoples' Union For Liberties And Others vs Union Of India And Others on 19 July, 1995

Equivalent citations: AIR1996CAL89, 100CWN357, AIR 1996 CALCUTTA 89, (1996) 100 CAL WN 357 (1996) 1 CAL LJ 184, (1996) 1 CAL LJ 184

ORDER

1. This writ petition was filed by Peoples' Union for Civil Liberty and thirteen Public men of eminence praying for a mandate on the Central Government to implement the Prasar Bharati (Broadcasting Corpn.) Act, 1990 forthwith without further delay.

The petition was moved with notice to the Central Government, its Officers, all recognised national political parties and their leaders. All India Joint Council of Door-darshan Production Staff Association also became a party respondent to support the petitioners.

2. Except the Union of India and its Officers all the respondents are supporting the case of the petitioners. Before the General Election in 1989 the Peoples' Union for Civil Liberties had put up a 7-point charter of demands to all political parties. The first demand of the said seven demands stated as follows:

"Radio and Television should be placed under the Control of one or more autonomous bodies created by law",

3. After the election, Janta Dal came to power and formed Ministry. During the Janta regime the Prasar Bharati (Broadcasting Corporation of India) Bill was drafted after considering all reports prepared by Committees, Working Groups and Organisations appointed by the Government from time to time after independence. The Bill was introduced in Parliament for discussion.

4. During the said Parliamentary disus-sion over the said Bill Sri Vasant Sathe said, "I think in the spirit in which we are now passing this Bill which is a very rare event and a very healthy trend setter". He further said that "This is now a Bill of entire House and not only of the Government". Sri Sathe further said, "Prasar Bharati is a gift to nation. It is a sort of freedom. We believe in unfettered media. Because that would add strength to our -democratic fabric." Be it stated here that Sri Vasant Sathe belonged to National Congress who were in opposition at that relevant time. It is worthy to note that Sri A. K. Roy, an independent member from Dhanbad while supporting the Bill, told the House that one wonderful thing is that, wisdom also varies when a man goes from left to right: So when the same people will go to the right, they will sit on Treasury, Bench, they will speak one thing and when they will come on the opposite side, they will speak in some other tone. The said Bill was passed unanimously by both the Houses of the Parliament and the President of India gave his assent on the 12th September, 1990.

5. Thereafter, the Government of the Janta Dal collapsed and new Government was formed under the leadership of Sri Chandra Shekhar for a short period. Again a mid-term election was held in 1991. Before the mid-term election, 1991 Peoples' Union for Civil Liberties further presented their 7-points charter of demands to the political parties. Almost all national parties including the Indian National Congress(I), Janta Dal and National Front Constituents, Bharatiya Janta Party, Communist Party of India, Communist Party of India (Marxist) and other parties included the demand in their Election Manifestoes. The said -political parties have been impleaded for proper adjudication.

6- It has been alleged that after the election was held the Indian National Congress came into power. But it is surprising that the Central Government has not brought the Act into force by notification as yet.

7. It has further been alleged in the petition that the Government has decided to create privatisation of Channels of the Door-darshan instead of bringing the Act into force.

8. The question involved is if the Court is competent to direct that Prasar Bharati Act has to be implemented by the Government and notification has to be issued. On behalf of Union of India, a preliminary question has to maintainability of the Writ petition has been raised on the ground that the Court is not competent to pass any direction directing implementation of the Act or to issue notification to that effect.

9. The learned Solicitor General has also raised the question that this Court has no territorial jurisdiction to entertain and try the instant writ petition. It has been submitted by him thai the writ petitioners seek to represent the public. The cause of action in the writ petition is the alleged inaction on the part of the Central Government to issue a notification bringing the Act into force. The grievance is of the inaction.

10. It has also been submitted by him that action or inaction of the Central Government has no direct or proximate nexus with the territories of West Bengal. If the alleged inaaion is capable of giving rise to a valid cause of action, thai cause of action has arisen only at the seat of the Central Government at Delhi.

11. It has further been submitted by learned Solicitor General that the place where the effect of the inaction is alleged to have been felt, is not the place where the cause of action can be said to have arisen. The effect of the inaction is far too indirect and remote to furnish jurisdiction. Otherwise, every Court in India will have jurisdiction over the alleged cause of action whether by way of writ or suit as the case may be.

12. In support of his contention, the learned Solicitor General has relied upon the judgment and decision in the case of Darshan-lal Anand Prokash v. Collector of Central Excise, Shillong reported in 1974 Calcutta Law Journal 27. He has particularly referred to pages 76-78 and 80 of the said judgment. In the aforesaid decision, it was held that where the effect of a Notification issued in Assam reduced the profits of tea gardens belonging to a Company in Calcutta and thus affected the Company financially at Calcutta, it could not be said that the cause of action had arisen in Calcutta and it did not give the Calcutta High Court any jurisdiction in the matter.

13. The learned Solicitor General has further pointed out that Hindalco's case does not lay down any other principle, although it is sometimes urged that the Hindalco's case has laid down different principles. In-fact, the facts of Hindalco's case were different and as such according to him it was held that'this Court has jurisdiction to entertain the writ.

14. Without prejudice to the aforesaid contention, the learned Solicitor General has further submitted that the writ petition is not maintainable. Parliament can pass a law bringing it into force immediately or retrospectively. It can itself prescribe a date when the legislation will come into force. Alternatively Parliament may also entrust the duty of deciding when to bring a law into force to an outside agency. This type of legislation is known as conditional legislation as held by the Supreme Court in the case of Hamdard Dawakhana reported .

15. In support of the contention that the writ petition is not maintainable, the learned Solicitor General of India has relied upon two decisions viz.

(1) A. K. Roy, petitioner v. Union of India and another, respondents And Then Singh Tyagi, petitioner v. Union of India and another, respondents And Dr. Vasant Kumar Pandit, petitioner v. Union of India and another, respondents (2) Aeltemish Rein, Advocate, Supreme Court of India, petitioner v. Union of India and others, Respondents .

16. Relying upon the judgment and decision in the case of A. K. Roy (supra), the learned Solicitor General has submitted that the Court has no power to issue a'mandamus calling upon the Government to bring legislation into force where Parliament itself has entrusted that function to an executive agency.

17. He has further submitted that in the aforesaid decision it was held by the Supreme Court that until the provision of law was brought into force no Court could enforce the provision which had not yet been brought into force.

18. It has been submitted by learned Solicitor General that at all times Parliament retains its control over its delegates namely the executive agency entrusted with the power of bringing an Act into force and if it finds that the executive agency is not acting according to the will of the Parliament, the Parliament may censure the executive agency and itself pass a law bringing into force the legislation concerned with immediate effect. That will be a legislative function and it has been submitted that the Court does not have any legislative function to perform.

19. Learned Solicitor General has further submitted that under normal circumstances an act comes into force, the moment the Presidential assent is obtained. Delegating the functions of bringing the Act into force may take one of the several modes such as:

(i) bringing the whole Act into force by a single notification, or

(ii) bringing different provisions of the Act into force from different dates by different notifications, or

(iii) extending the operation of the Act or of any section thereof to different areas at different times by different notifications.

20. It has furthr been submitted by learned Solicitor General that the authority or the executive agency entrusted to bring a legislation or part thereof into force is bound to act strictly within the terms of the delegation. If the delegation permits the executive agency to bring the act into force peacemeal, it can certainly do so but where the section only, authorises the executive agency to bring the whole of the act into operation without giving it the power to bring it into force on different dates, then the executive agency is powerless to do so; and the Court would not also have the power to direct the executive to bring different sections of the Act into force on different dates. That according to him, will clearly amount to legislation by the Court with respect to a subject matter where only the Parliament has the power.

21. Learned Solicitor General has accordingly submitted that the writ petition is liable to be dismissed.

22. On behalf of the petitioners it has been strongly urged that none of the cases apply in the instant writ petition.

23. It has been contended that the judgment and decision in the case A. K. Roy ' (supra) v. Union of India and another cannot have any application to the facts of the instant case.

24. It has been argued that in the aforesaid decision that a particular section, namely S. 3 was not implemented for about 2 1/2 years although other sections of the Act were implemented within a reasonabe time.

(i) Act was passed in 1978

(ii) Assent of the President was obtained on 30-4-79.

(iii) Most of the provisions came into force on 20-6-79.

(iv) Res except S. 3 came into force on 1-8-79.

(v) In the Act there was provision for implementing various sections by instalments.

25. Similar was the case of Aeltemesh Rein reported in AIR 1988 SC 1763. In the aforesaid decision S. 30 of the Advocates Act, 1961 was not implemented for a long time.

26. The question involved in the aforesaid decision was if the Court would exercise its power for the purpose of implementation of S. 30 of the Advocates Act.

27. The said decision also according to the learned Advocate for the petitioner cannot have any application in the facts of the instant case.

28. It has further been argued on behalf of the petitioner that Supreme Court in these two cases did not declare any absolute proposition of law. Supreme Court made two exceptions -- in case of mala fides and infringement of fundamental rights -- the power of the High Court remains unfettered.

29. It has been submitted on behalf of the petitioner that in the instant case both the conditions have been in existence. Therefore, it has been urged that High Court is entitled to direct the Central Government to implement the Act within a specified time.

30. It has further been submitted that High Court has unlimited power under Art. 226 of the Constitution. The restrictions in the power of the High Court has been mentioned in the Constitution itself.

(1) Articles 361-363 which relate to international charter and agreements-

(2) Articles 358-359 -- Court however cannot interfere even if fundamental rights were suspended during the emergency.

It has been argued on behalf of the petitioners that except.the aforesaid limited cases, in all other cases power of the High Court under Art. 226 of the Constitution cannot be abridged or taken away by any law -- short of Constitutional amendment.

31. In support of the said contention, the petitioners have relied upon the judgment and., decision in the case of In re: Kerala Education Bill, 1957 Special Reference 1 of 1955 reported in AIR 1958 SC 956.

32. Therefore it has been argued that the two cases, one and the other are not standing on the way of giving any specific direction to implement the Prasar Bharati Act by this Court. In the instant case, the facts and law both are different from the earlier cases. If these two judgments are taken to be law declared by the Supreme Court then also this law will be violative of Art. 13 of the Constitution of India. Those judgments purport to abridge or take away the rights conferred by Part III of the Constitution and any law made in contravention of this clause is to the extent of the contravention be void.

33. Even if those two judgments are taken to be good law then also there is no bar in directing the Government to implement all provisions of the Prasar Bharti Act, 1990 except Ss. 11, 23 and 25 of the Act which are proposed to be amended. In the name of amendment the Central Government cannot remain inert for years together on a false pretext to keep media under control.

34. Learned Advocate for the petitioners has submitted that the Central Government cannot under the Constitution do as they like, according to caprice and whims. Where there is no time limit for implementation of the Act and discretion has been left with the Government by the Parliament, the time must be a reasonable one. From an Authoritatives exposition on legislative procedure by Robert Luce at page 561 there is a chapter when the law comes into effect. It has been said therein by summarising laws of all the countries that reasonable time should not be more than two months. Maxwell in its his Interpretation of Statutes has observed at pages 146 and 149, that when a proper legislature enacted a law and authorises and decides to bring into force at such time as it may decide, exercise of such discretion must be reasonable. In this connection, reference may be made to the decision of the Supreme Court in the case of Inder Singh v. State of Rajasthan .

35. The learned Advocate for the petitioner has relied upon the judgment and decision in the case of Padfinder and others v. Minister of Agriculture Fisheries and Food and others reported in 1968 Appeal Case 997 wherein it was held that where within a reasonable time the discretion given to a Minister has not been exercised it may be inferred that the Minister will not exercise his discretion. In that event the Court cannot remain a passive on-looker and must give a direction in aid of the petitioner to enforce the obligation.

36. He has also relied upon the judgment and decision in the case of Kumavi Srilekha Vidyarathi v. State of U.P. . The learned Advocate has particularly referred to Paragraphs 29, 30 and 31 of the said judgment and has submitted that in the aforesaid decision, the Executive and even Cabinet is not immune from the Vice of infringing fundamental rights. If it was due to any political or policy decision of the Cabinet, then also the policy decision of the cabinet is open to scrutiny by the Court. In this connection the learned Advocate has also upon to the judgment and decision in the case of State of M.P. v. Nandlal Jaiswal .

37-38. It has been submitted on behalf of the petition, that after the assent of the President was obtained to the Act enacted by the Parliament Executive and/or the Cabinet cannot delay the matter by saying that it is being delayed because of the policy decision of the Government. To make an Act effective, no policy decision of the Government or the Cabinet is necessary. This Act has been enacted after a long pursuatvon deliberation, trials and turbulations.

39. It has also been argued on behalf of the petitioner that legislation is a command of the people and it is the wish of the people which has been enacted for the purpose of implementation. It has been argued that the Executive authorities having received the assent of the Executive Head, cannot withhold the implementation of the said legislation for unlimited period.

40. It has been contended on behalf of the petitioner that the Government is accountable for non-implementation of the Act. It has been widely accepted that democracy does no't consist merely in people exercising their franchise once in 5 years to choose their Rulers and once, the vote is cast then retiring in passivity and not taking any interest in the Government.

41. It has also been submitted by learned Advocate for the petitioners that it is open to the Court to direct that except the Provisions of the Act for which there is proposal for Amendment, other, provisions may be implemented. It has also been submitted by learned Advocate for the petitioners that if the mandate given by the people through Parliament is not given effect to by the Executive Government. The Court cannot remain silent spectator over the matter. The learned Advocate has further contended that it is open to the Court to exercise judicial review for administrative actions of the Parliament as well as of the Executive Government to keep the State function harmoniously.

42. It has also been submitted on behalf of the petitioner that it is always obligatory to implement the provisions of the Act other than those in respect of which there is a proposal for Amendment by Government, It has further been suggested that the sections which are to be amended may be kept in abeyance and other sections might be brought into force immediately. The learned Advocate has further submitted that there is no bar in Law to bring into force some of the provisions of the Act and to keep in abeyance other provisions.

43. It has further been argued on behalf of the petitioner that cause of action for the purpose of exercising power by High Courts has been provided in Cl. 2 of the Art. 226. Cl. 2 provides that the power conferred by Cl. 1 to issue directions orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of actions, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. Ld. Solicitor General in support of his submission has relied upon a judgment of a single Bench of Calcutta High Court reported in 1974 Cal LJ 27. Relevant paragraph according to the Ld. Solicitor General is paragraph 80. It has been submitted on behalf of the petitioners that a clause of Art. 226 has been amended in 1976 to bring it in this shape and the aforesaid judgment of this Court is dated March 22, 1974 and, therefore, when the said judgment was delivered this Court had no occasion to consider the amended provisions of Cl. 2 of Article 226. Accordingly, it has been submitted that this judgment is in appropriate for this case since the said clause of Art. 226 has been amended in 1976 and therefore the contention of the learned Solicitor General relying upon the judgment and decision in the case of Darshanlal Anand v. Collector of Customs & Central Excise, Shillong reported in 1974 Cal LJ 27 does not apply ..... since the Court had no occasion to consider in the said judgment the amended provision of Ct. 2 of Art. 226. It has also been submitted on behalf of the petitioners that the citizens in Calcutta and in each part within the territory of India has been affected due to non-implementation of the Act which is elaborately stated in the petition. It has been contended on behalf of the petitioners that the effect of non-implementation of the provisions of the' Act, 1990 are disastrous and by withholding implementation of Prasar Bharti (Broadcasting Corporation of India) Act, 1990, the Executive Government is using this mass media (a) for boosting up artificial image of Ruling Political Parties and creating personality cult of the leaders of the Ruling Party (b) for destroying the image of other political party and their leaders (c)for covering any laches and failures of the Government in power; (d) so long an autonomous body like Prasar Bharati (Broadcasting Corporation of India) Act comes into being, nobody is expected to get a t rue picture of the affairs of the country. It has also been submitted on behalf of the petitioner further that the other impact of non-implementation is also serious. The different channels of the Doordarshan have been given to different commercial undertakings only to project violence, sex and other theme which destroy the moral and ethical fervour of the youths leading to serious consequence and social and family disaster. This aspect which detroys the entire nation, stalls the nation building, have been blindly ignored. This would not have been the face of the society had there been a proper control by an autonomous body like Prasar Bharati (Broadcasting Corporation of India) Act composed of different personalities of different phases of society. The more there is a delay in the matter of implementation, more the young generations go astray resulting in total destruction of the young generation.

44. Therefore the learned Advocae for the petitioner has submitted that cause of action for non-implementation touched every nook and corner of the Society within the territory of India.

45. Submission has also been made by Mr. Sadhan Gupta, the learned Advocate for the Communist Party of India (Markxist), respondent No. 14 in the writ petition supporting the case of the petitioner. It has been submitted by him that no one disputes that Prasar Bharati Act would should come into force. In fact it appears from the proceedings of the Lok Sabha that when the Act was on the anvil as a Bill, every party enthusiastically supported it and a spokeman of the Congress (I) warned against any delay in bringing the act into operation.

46. It is the contention of Mr. Gupta that the Congress(I) which was then in opposition is now in power. It has never been contended in any forum that the act should not come into force. On the contrary in its election manifesto in 1991, the Congress(1) promised to concede Broadcasting and Telecasting right not only to Prasar Bharati but to other public corporation which conforms to parameters laid down by the law.

47. After it came into power, it has again and again promised that it would be brought into force within few months but has failed every time.

48. Mr. Sadhan Gupta, learned Advocate has dealt with the two preliminary objections raised on behalf of the Union of India. The learned Advocate has referred to the judgment and decision in the case of State of Orissa v. Sudhansu Sekhar Misra . The Supreme Court observed at page 651 of the said report as follows:

"A decision is only an authority for what it actually decides. What is of the essence in a decision, is its ratio and not every observation found therein nor what logically follows from the various observations made in it. On this topic this is what Earl of Halsbury LC said in Quinn v. Leathem. 1901 AC 495. "Now before discussing the case of Allen v. Flood, 1898 AC 1, and what was decided therein, there are two observations of a general character which I wish to make and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there, are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decided. I enlirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all. It is not a profitable task to extract a sentence here and there from a judgment and to build upon it. Neither Bagchi's case. nor Ranga Mahammad's case , is of any assistance to us in deciding the question whether the High Court has competence to fill some of the posts in the Secretariat by transfer of Judicial Officers under its control. Just as the executive cannot know the requirements of a particular Court, the High Court also cannot know the requirements of any post in the Secretariat, Just as the High Court resents any interference by the executive in the functioning of ihe Judiciary, the executive has a right to ask the High Court not to interfere with its functions. It is for the executive to say whether a particular officer would meet its requirements or not. The High Court cannot, as contended by the learned Attorney General, foist any officer on the Government".

49-50. The learned Advocate has also referred to the judgment and decision in the case of Addl. Distt. Magistrate, Jabalpur v. Shivakant Shukla, of the said report the Supreme Court observed as follows:

"Moreover, it must be remembered when we are considering the observations of a high judicial authority like this Court, the greatest possible care must be taken to relate the observations of a Judge to the precise issue before him and to confine such observations, even though expressed in broad terms, in the general compass of the question before him, unless he makes it clear that he intended his remarks to have a wider ambit. It is not possible for Judges always to express their judgments so as to exclude entirely the risk that in some subsequent cases their language may be misapplied and any attempt at such perfection of expression can only lead to the opposite result of uncertainty and obscurity as regards the case in hand."

51. The learned Advocate has also referred to another decision of the Supreme Court in the case of Rajpur Ruda Meha v. State of Gujarat, , in support of his contention.

52. It has been submitted on behalf of the respondent No, 14 that it follows from the observations of the Supreme Court in the decisions referred to above that its observations are not to be understood in a wide general sense and are to be understood to. be related to the matters in issue before it and in no case the observations are to be treated as precedents for propositions which logically follow from them. In other words, observations of the Supreme Court and for the matter of that of any Superior Court are not to be read, in the same manner as Statutes are read, and must be understood in the context of the matters actually decided in the particular case.

53. The learned advocate for respondent No. 14 has also contended that in the light of the above discussion the first preliminary objection, namely, that this Court has no jurisdiction to compel the Central Government to exercise the discretion vested in it by Parliament may be considered.

54. Mr. S. Gupta, learned Advocate for the respondent No. 14 has argued extensively and has made inter alia the following submissions:

(i) Under Section 1(3) of the Prasar Bharati Act (hereinafter referred to as the "Act") the discretion vested in the Central Government is to determine when the Act as passed by Parliament will come into force, and not whether the Act in its present form will come into force or not.

(ii) Even assuming the discretion vested to be to determine the date of enforcement of the Act it cannot be exercised to defeat the policy or purpose of the Act.

(iii) The discretion conferred by S. 1(3) is arbitrary, being uncanalised and without any guidelines, and is therefore, contrary to the rule of law which is a basic feature of the Constitution, and as such is also a contravention of Art. 14 of the Constitution.

(iv) Refusal to bring the Act into force is a violation of the fundamental rights of the people of this country. As such it can be enforced by an appropriate direction, order or writ under Art. 226; and

(v) The non-exercise of the discretion in this case is patently mala fide. Therefore, it can be struck down and appropriate relief given by way of compelling enforcement of the Act.

55. According to him the decisions relied upon by learned Solicitor General with regard to the first preliminary objection raised as to the maintainability of the writ petition are distinguishable since the points in issue were not discussed in the said decisions.

56. It has further been submitted by Mr. S. Gupta, learned Advocate for the respondent No. 14 that the Supreme Court in the aforesaid decision in the case of A. K. Roy v. Union of India and Than Singh Tyagi v. Union of India, and Dr. Vasant Kr. Pandit v. Union of India, , formulated 6 points which it had to decide on the basis of the arguments advanced before it by the five counsel appearing in the different cases. Of these 6 points we are concerned only with point No. 3 -- "The effect of the non-implementation of the 44th Amendment in so far as it bears upon the Constitution of the Advisory Boards".

57. According to Mr. S. Gupta, the main thrust of the arguments of Dr. Ghatate in the aforesaid decision was "that the Central Government was under an obligation to bring S. 3 of the 44th Amendment into force within a reasonable time after the President gave his assent to the amendment and since it has failed so far to do so the Court must, by a Mandamus, ask the Central Government to issue a notification under S. 1(2) of the Amendment bringing it into force without any further delay." Alternatively Dr. Ghatate contended "that Cl. 2 of S. 1 of the 44th Amendment is ultra vires the amending power conferred upon the Parliament by Art. 369 of the Constitution. The power to amend the Constitution is vested in the Parliament by Art. 368, which cannot be delegated to the executive. By such delegation the Parliament has created a parallel Constituent body which is impermissible under the term of An. 368. Sub-sec. (2) of the S. 1 of the Amendment Act vests an uncontrolled power in the Executive to amend the Constitution at its sweet-will which is violative of the basic structure of the Constitution. Section 1(2) is also bad because by conferring an unreasonable, arbitrary and unguided power on the executive, it violates Articles 14 and 19 which are an integral part of the basic structure of the Constitution."

(Para 41 page 729)

58. Mr. S. Gupta has further submitted that arguments were also advanced in the aforesaid case to contend that S. 1(2) of 44th Amendment Act was ultra vires Art. 368(2) and that S. 1(2) implied an obligation to bring the amendment into force within a reasonable time, that failure to bring the amendment in question into force was mala fide and that in any event the constituent body having expres-ed its will that the Advisory Body would be constituted in a particular manner that would be binding as reasonable whether it has been brought into force or not. We are not concerned with these arguments. From para-graph 46 to para 51 the arguments whether Sec. 1(2) of the 44th Amendment Act is ultra vires Art. 368(2) is considered and rejected (pages 730-732). In paragraph 52 Dr. Ghatate's argument that a mandamus could issue on the Central Govt. because it has failed to bring S. 3 into force is considered and rejected, (pages 732-733).

59. Mr. S. Gupta has further referred to paragraph 55 of the said judgment and has submitted that the point about vesting of unguided and uncontrolled power in the executive has been referred to in said paragraph in connection with consideration of the extent of the power of Parliament as the constituent body.

60. Mr. Gupta has also contended that the reasoning given in paragraphs 53-57 however, appears to show that this point was rejected for the following reasons:--

i) Over a long period constitutional amendments have authorised the Central Govt. to specify dates on which one or the other amendment was to come into force. In this connection the Constitution 1st, 7th, 13th, 27th, 32nd and 42nd amendments were cited and the decision was given in this background. (See paragraphs 53 and 54 page 733).

ii) Similarly over a long period of years there has been extensive delegation of powers to the executive which has been upheld by the Supreme Court. In this connection the case of Inder Singh v. State of Rajasthan, ; in the case of Sitaram 'Bishambhar Dayal v. State of U.P., reported in AIR 1972 SC 1168; in the case of Gwalior Rayon Silk Manufacturing (Wvg.) Co. Ltd. v. Assistant Commr. of Sales Tax, ; were cited and discussed and on the basis of observations made therein, their Lordships held: "We are unable to appreciate that the constituent body can be restrained from doing what a Legislature is free to do. We are, therefore, unable to accept the argument that Sec. 1(2) confers an uncontrolled power on the executive and is, by its unreasonableness, violative of Arts. 14 and 19 of the Constitution." The learned Advocate for respondent No. 14 has, however, submitted that when submissions are made on merits it will be seen that the ratio of this decision does not at all affect main points in the instant case.

61. It has also been submitted by learned Advocate for respondent No. 14 that the judgment and decision in the case of Alte-mash Rein, Advocate, Supreme Court v. Union of India, , relied upon on behalf of Union of India cannot have any application in the instant case.

62. With regard to the other objection raised on behalf of Uniorr of India that this Court has no territorial jurisdiction to decide the writ petition has been dealt with by learned Advocate for respondent No. 14 under two broad heads namely:--

i) Omission to bring the Act into force is only part of the cause of action, and

ii) the concept of cause of action developed in the context of adversary litigation is not appropriate to Public Interest Litigation.

63. Under the category (I) namely omission to bring the Act into force is only part of the Cause of Action and not the whole, it has been submitted by Mr. Gupta, learned Advocate for respondent No. 14 that Indian and English Courts are practically unanimous about what a Cause of Action is.

64. He has in this connection relied upon the judgment and decision of the Privy Council in the case of Md. Khalil Khan v. Mahbub Ali Mian, . He has particularly referred to paragraph 61 of the said judgment and submitted relying upon the said decision that "the Cause of Action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment : (1889) 22 QBD 128, Rel. on."

65. He has also referred to Stroud's Judicial Dictionary, 5th Edition (1986), Vol. I, page 378 for the meaning of Cause of Action as entire set of facts that gives rise to an enforceable claim. It has been submitted that the phrase comprises every fact which if traversed the plaintiff must prove in order to obtain judgment. Mr. S. Gupta, learned Advocate for respondent No. 14 has further submitted that it will not be sufficient for the purpose of this writ petition merely to prove that the Central Govt. has omitted to bring the Act into force. No one individually or collectively is or can be affected by a mere failure or omission to bring an Act into force. The injury arises as a result of consequential deprivation or denial of the benefits which the Act is intended to confer and will confer. In this case, as will be shown when discussing the merits, the Act will secure among other manifold benefits, right of the people of this country to access to balanced information which is essential for the development of democracy and of intellectual and cultural development and human dignity and protection against undue exposure to decadent culture in different fields of intellectual life. Therefore, the cause of action is not merely the omission to bring the Act into force. That constitutes only one part of the cause of action.

66. It has also been submitted by learned Advocate for respondent No. 14 that even though that part, namely, the omission has taken place at Delhi, the consequence of the omission occurs everywhere. Everyone in the entire country, including West Bengal, is being exposed daily and hourly, to one-sided information, decadent culture through different programmes over radio and T.V. and particularly through different programmes over Radio and T.V. and particularly through certain advertisements, certain serials etc.

67. According to learned Advocate for respondent No. 14 all these together constitute the cause of action in this petition, omission to bring the Act into force is only a part of the whole bundle of facts. As ail the consequences of the omission arc felt in West Bengal this Court has undoubtedly jurisdiction to entertain the petition.

68. The second contention of the learned Advocate for respondent No. 14 with regard to the territorial objection raised on behalf of Union of India is that in any event the concept of cause of action developed in the context of adversary litigation in private law is not appropriate to public interest litigation.

69. He has further submitted that since cause of action is a part or a bundle of facts which or any of which, if traversed, must be proved by the plaintiff to get relief. This presupposes that : (a) there must be at least two adversaries pitted against each other, and (b) a Court acting as umpire between them on the basis of facts which are established by evidence adduced by each side.

70. In this connection, the judgment and decision of the Supreme Court in the case of D. N. Pandey v. President of India and Miss Lily Thomas v. President of India and R. Prasad Singha v. Sh. K. B. N. Singh (Chief Justice), reported in AIR 1982 SC 149, has been referred by the learned Advocate Mr. S. Gupta. The learned Advocate has submitted that a public interest litigation is a fundamentally different concept from the traditional adversary litigation. As the Supreme Court has observed in the case of Peoples' Union for Democratic Rights v, Union of India, "We wish to point out with all the emphasis at our command that public interest litigation which is a strategic arm of the legal aid movement and which is intended, to bring justice within the reach of poor masses, who constitutes the low visibility area of humanity, is totally different kind of litigation from the ordinary traditional litigation which is essentially of an adversary character where there is a dispute between two litigating parties, one making claim or seeking relief against the other and that other opposing such claim or resisting such relief. Public interest litigation is brought before the Court not for the purpose of enforcing the right of one individual against another as happens in the case of ordinary litigation but it is intended to promote and indicate public interest which demands that violations of constitutional or legal rights of large number of people who are poor, ignorant or in a socially or economically disadvantageous position should not go unnoticed and un-redressed. That would he destructive of the rule of law which forms one of the essential elements of public interest in any democratic form of Govt."

71. In this context he has referred to the judgment and decision of the Supreme Court in the case of Bandhua Mukti Morcha v. Union of India, , and submitted relying upon the aforesaid decision of the Supreme Court that it is quite obvious, therefore, that in a public interest litigation the petitioner and the State are not supposed to be pitted against each other, there is no question of one party claiming or asking for relief against the other and the Court deciding between them. Public interest litigation is a co-operative litigation in which the petitioner, the State or public authority and the Court are to co-operate with one another in ensuring that the constitutional obligation towards those who cannot resort to the Courts to protect their constitutional or legal rights is fulfilled. In such a situation the concept of cause of action evolved in the background of private law and adversary procedure is out of place. The only question that can arise is whether the prayers in the petition, if granted, will ensure such constitutional or legal rights.

72. Mr. S. Gupta, learned Advocate has referred to S. 1(3) of the Act and has submitted that the Central Govt. has discretion to determine when the Act as passed by Parliament will come into force and not whether the Act in its present form will come into force or not.

73. He has further submitted that from S. 1(3) of the Act it appears that the intention of Parliament is: (i) that the Act as enacted by it shall come into force, and (ii) that the Central Govt. is only to appoint a date for bringing it into force by notification in the Official Gazette. In other words it can never mean, (i) that the Central Govt. has a discretion not to issue the notification at all, or (ii) that the Central Govt. is entitled, before issuing the notification to sec that the Act as enacted by Parliament is altered or modified. Yet it is obvious from paragraphs 4-11 of the affidavit of Bejoy Kr. Sharma that the Central Govt. has undertaken a lengthy policy of review and consultation for the purpose of altering or modifying the Act before bringing it into force. This is clearly not permissible under S. 1(2) of the Act.

74. It is the contention of Mr. S. Gupta, learned Advocate for respondent No. 14 that this aspect of the matter was not considered by the Supreme Court in the cases relied upon on behalf of Union of India. It has been submitted on behalf of respondent No. 14 that the previous Govt. envisaged the establishment of the Corporation by March, 1991. However, with the change in the Govt. in November 1990 and with the change of the political executive the view that emerged then was that it was imperative to consult in lift first instance, all shades of public opinion to ensure that the establishment of the Corporation was in conformity with national interest. It was felt that in view of the mischief potential of the video and audio cassettes in circulation at the time the Govt. needed to have at its disposal a powerful medium to communicate the positive aspects of communal harmony as also to counter the propaganda aimed at promoting religious and cultural divides. In the circumstances the setting up of the Corporation did not make any headway."

75. It has been submitted that a new dilatory attitude emerged to find reasons or excuses for not bringing the Act into force; the attitude as revealed from paragraphs 4 to 11 of the said affidavit and from Anne-xure 121 is clearly a diffidence in the efficacy of the Act and the necessity to make changes in the Act before the Act can be brought into force.

76. It has further been submitted by Mr. S. Gupta, learned Advocate for respondent No. 14 whether the Prasar Bharati Corporation may or may not be able to safeguard our national interests or stand effectively against the polluting influence of video and audio cassettes is a matter of policy to be determined by Parliament. The executive cannot, by raising disputes in respect of that policy or purpose refuse to bring into force or impose any condition for bringing into force an Act when Parliament has clearly provided that "it shall come into force".

77. It has further been contended on behalf of respondent No. 14 that Supreme Court in neither of the cases relied upon by learned Solicitor General, has considered this aspect of the matter.

78. Learned Advocate for respondent No. 14 has further submitted that the discretion conferred by S. 1(3) is arbitrary being uncanalised and without any guidelines, and is therefore, contrary to the Rule of Law, which is a basic feature of the Constitution and as such is also a contravention of Article 14 of the Constitution.

79. The learned Advocate Mr. S. Gupta has relied upon the judgment and decision in the case of Bachan Singh v. State of Punjab and Mal Singh v. Union of India; Sunil Batra v. Union of India; Nathu Singh v. Union of India; Kartar Singh v. Delhi Administration; Sher Singh v. State of Punjab; Sunil Batra v. Delhi Administration: Mal Singh v. State of Haryana; Nirpal Singh v. State of Haryana; Jagmohan Singh v. State of Haryana; Ujagar Singh v. State of Punjab, and particularly to para 10 page 1336 of the said report.

80. He has referred to the decisions in the case of S. G. Jaisinghani v. Union of India, , wherein the Supreme Court observed: "In this context it is necessary to emphasise that "the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities must be continued within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decision should be predictable and the citizens should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law ....." It is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion, as Lord Mansfield stated it in classic terms in the case of John Wilkes, (1770) Burr 2528 at page 2539 "means sound discretion guided by law. It must be governed by rule, not by humour, it must not be arbitrary, vague and fanciful." (page 1434 para 14)

81. Mr. S. Gupta has further submitted relying upon the aforesaid decision of the Supreme Court that the purpose of the Act and the validity of S. 1(3) of the said Act has to be judged in its proper context. He has further submitted that the purpose of the Act is to set up an autonomous Corporation to conduct radio and television broadcast. Provisions have been made for ensuring the independence of the Corporation from Govt. interference and healthy guidelines have been laid down making it the duty of the Corporation to disseminate balanced information and to promote values enshrined in the Constitution and other values in the field of culture and in other fields. Checks have been provided in case a Corporation tends to go astray. Such an act is bound to prove extremely beneficial particularly by disseminating balanced information and different points of view instead of exposure to onesided information and propaganda as at present and by promoting healthier values and culture instead of degrading the community by exposure to decadent culture and values. As will be seen in paragraph 26 below the right to such balanced information and healthy culture and values is part of our fundamental rights.

82. It has further been submitted on behalf of respondent No. 14 that there may or may not be some question as to whether a discretion to bring into force without limit of time an Act which is not of much significance to public interest, or to the life of community at large can be regarded as unreasonable or arbitrary or otherwise in violation of the rule of law; but in the case of a law like the Prasar Bharati Act which is of far-reaching significance to public interest and to the life of the community, there can be no question that a discretion enabling the operation of the Act to be indefinitely postponed or totally stalled could not but be unreasonable, arbitrary and in violation of the rule of law and void. If that is so, the Act may be declared to have come into force and the mandamus may be issued commanding approbate steps to be taken to set up the Corporation and the other bodies envisaged in the Act like the Broadcasting Council etc.

83. Alternatively it has been suggested by learned advocate for respondent No. 14 that according to the rule of construction of Statutes so as to make it intra vires the Constitution, Section 1(3) may be interpreted to mean that the discretion to determine the time when the Act shall come into force is valid but that it must be exercised within a reasonable time. What is a reasonable time must be determined in the light of the requirements of the law. For instance, in this case the time is required to find out different Personnel for the Corporation and the different Committees and so on. In this case more than four years have elapsed which by any standard is unreasonably long for the purpose. In fact, as has already been pointed out above, the delay has admittedly been caused not by anything required to be done by the Act but by an interminable process by review and consultations which is beyond the scope of Section 1(3).

84. In these circumstances, it has been submitted that if Section 1(3) is held valid and the Central Government is held to have exceeded the limits of discretion conferred by it, a mandamus may be issued commanding it to bring the Act into force within a definite reasonable time to be indicated by the Court in the order.

85. It has also been submitted on behalf of respondent No. 14 that refusal to bring the Act into force is a violation of the fundamental rights of the people of this country and as such it can be enforced by an appropriate direction, order or writ under Article 226 of the Constitution.

86. It has been submitted by learned Advocate for respondent No. 14 that the question whether the electronic media like the radio and T.V. will be controlled by the Govt. or will be run by a Public Corporation gives rise to the question whether the people of our country will or will not enjoy the right to freedom of speech and expression and the right to life.

87. The learned Advocate has relied upon the judgment and decision of the Supreme Court in the case of Secretary Ministry of I.B. v. C.A.B., wherein the Supreme Court observe as follows:

"However, the right to freedom of speech and expression also includes the right to educate to inform and to entertain and also the right to be educated, informed and entertained."

88. It has also been submitted relying upon the aforesaid decision at page 292 para 193 that right to receive and impart information is implicit in free speech.

89. Accordingly he has submitted that freedom of speech and expression not only comprises a right to propagate information, opinion, educative material and entertainment of different kind but also to receive them. A medium exclusively controlled by Govt. or by one or a few private concerns cannot possibly ensure such freedom of speech and expression. In the case cited above Mr. Justice Jeevan Reddy observes .

"All the constitutional Courts whose opinion have been referred to hereinbefore have taken the uniform view that in the interest of ensuring plurality of opinions, views", ideas and ideologies, the broadcasting media cannot be allowed to be under the monopoly of any one -- be it the monopoly of Govt. or of an individual, body or organisation. Govt. control in effect means the control of the political party or parties in power for the time being. Such control is bound to colour and in some cases may even distort the news, views and opinions expressed through the media. It is not conducive to free expression of contending view points and opinions which is essential for the growth of a healthy democracy. I have said enough hereinbefore in support of the above propositions and we do not think it necessary to repeat the same over again here. I have also mentioned hereinbefore that for ensuing plurality of views, opinions and also to ensure a fair and balanced presentation of news and public issues, the broadcast media should be placed under the control of public i.e. in the hands of a Statutory Corporation or Corporations as the case may be. This is the implicit command of Art. 19(1)(a). I have also stressed the importance of constituting and composing these Corporations in such a manner that they ensure impartiality in political, economic and social and other matters touching the public and to ensure plurality of views, opinions and ideas. This again is the implicit command of Art. 19(1)(a)."

90. The learned Advocate relying on the observation of the Supreme Court has further submitted that (a) the right to propagate views, opinion, information, ideas, ideologies, educative materials, entertainment etc. through the electronic media, (b) the right to receive views, opinions, information, ideas, ideologies, educative materials, entertainment etc. through the electronic media, and (c) the obligation of the electronic media to make a balanced presentation of different views, opinions, information, ideas, ideologies, educative materials, entertainment etc. are all included in the freedom of speech and expression guaranteed by Art. 19(l)(a).

91. Mr. Sadhan Gupta, learned Advocate has also referred thejudgment and decision of the Supreme Court in the case of Reliance Petrochemicals Ltd. v. Proprietor of Indian Express Newspapers, Bombay, , and has submitted that right to information is a basic right which the citizens of free country aspire in the broader horizon of the right to live and that right has reached new dimensions and urgency.

92. It has been also contended by Mr. Sadhan Gupta that the failure and/ or refusal of the Central Government to bring into force the Prasar Bharati Act and thereby continuing the Government monopoly of the electronic media is a denial and contravention of the fundamental rights guaranteed by Arts. 19(1)(a) and 21 of the Constitution and that bringing the Act into force is an essential pre-condition of enforcing such fundamental rights.

93. Mr. S. Gupta, learned Advocate for respondent No. 14 has further submitted that under Art. 226(1) of the Constitution appropriate direction, orders and or writs are available for the enforcement of any fundamental or legal right that is being violated. As the fundamental rights of the entire people of our country are being violated by failure and/or refusal to bring the Act into force which will oblige the Central Govt. and other authorities concerned to set up an independent Corporation, free of Govt. control and obliged to conduct the electronic media so as to present balanced information, views and opinions and healthy education and culture, this Court has jurisdiction to issue appropriate orders on the Central Govt. to bring the Act into force and for taking steps for setting up of a Corporation without the least possible delay.

94. Mr. S. Gupta has referred to the affidavit of Bijoy Mishra affirmed on 8th September, 1993 (hereinafter referred the said affidavit) and has submitted that although an action plan had been formulated for completion of activities necessary for the establishment of the Corporation by end of March, 1991 it did not materialise because "the political executive underwent a change in November, 1990 and that thereafter an infinite round of review and consultation was set at foot. As a result the enforcement of the Act has been successfully stalled for more than 4 years. It has been submitted that there is no scope for review and consultation under S. 1(3).

95. It has further been submitted by learned Advocate for respondent No. 14 that the reasons given for starting this round of detailed and comprehensive reviews are not very convincing. The reasons given are : (a) operational difficulties likely to arise due to the development of new situation arising out of operationalisation of Insat IID, (b) the Govt.'s need to have at its disposal a powerful medium to communicate the positive aspects of communal harmony as also counter propaganda aimed at promoting religious and cultural divides in view of the mischief potential of video and audio cassettes in circulation at that time, and (c)the leave to amend certain provisions of the Act.

96. It has been argued on behalf of respondent No. 14 that no justifiable reason has been shown for failure of the Govt. to bring the Act into force. It has also been submitted on behalf of respondent No. 14 that it is difficult to conceive what real operational difficulties can arise from the operationalisation of Insat IID. One would have thought that the availability of a much larger number of channels would greatly increase the efficacy and improve and extend the services that could be rendered by the Corporation. As appears from the decision in the case of Secretary, Ministry of Information & Boradcasting v. Cricket Association of Bengal, , the problem is the scarcity of channels and not their multiplication. Therefore, this excuse is obviously an attempt to hoodwink the public if not the Court.

97. The learned Advocate for respondent No. 14 has further submitted that the need of a powerful medium to communicate the positive aspects of communal harmony as also counter propaganda aimed at promoting religious and cultural divides in view of mischief potential of vedio and audio cassettes in circulation at that time is on the face of it another flimsy excuse.

98. Referring to S. 12(2)A of the Act, Mr. S. Gupta submitted that one of the objectives for setting up of a Corporation is upholding the unity and integrity of the country. And it is also essential for upholding the values enshrined in the Constitution like economic, political and social justice, equality of status and opportunity, fraternity, dignity of the individual and the integrity and unity of the nation that positive aspects of communal harmony be strongly disseminated and promotion of religious and cultural divides vigorously countered.

99. It has further been submitted that there is no ground for presuming or even assuming that an independent public Corporation consisting of eminent and responsible persons will be unequal to the task or will be less equal to it than the Govt. Besides, there is a Parliamentary Committee to over-see the Corporation under S. 13 of the Act and also a Broadcasting Council to take action on any complaint including a complaint that any particular programme, broadcast or telecast by the Corporation is not in accordance with its objectives. He has also referred to S. 23(1) of the Act and has submitted that the Central Govt. has given power under the Act to issue to the Corporation such directions as it may think necessary in the interest of the sovereignty, unity and integrity of India or the Security of the State or preservation of public order.....

100. It has further been argued that it is also open to the Central Govt. under S. 23(1) of the Act to compel the Corporation to broadcast what is considered necessary by specifying it in the direction.

101. It is the submission of the learned Advocate for respondent No. 14 that the plea of the Central Govt. about the need to have a powerful medium for the purpose alleged is nothing but another flimsy excuse for stalling the Act and holding on to the monopoly of control of the electronic media contrary to the provisions of the Act.

102. It has been submitted by learned Advocate on behalf of respondent No. 14 that the Central Govt. in the said affidavit of Bijoy Kr. Sharma affirmed on 8th September, 1993 has taken the plea that the Amendments are necessary in respect of four sections namely Ss. 11(1), 11(2), 23 and 25.

103. Mr. S. Gupta, learned Advocate has further submitted that the said proposed amendments are of very minor nature and can be easily made after the Act is brought into force. It has accordingly been argued on behalf of respondent No. 14 that the need for these amendments, if any, cannot conceivably be a bona fide excuse for stalling an important Act and depriving the entire people of the country of valuable fundamental rights for years together.

104. Mr. S. Gupta has further contended that the question of establishment of an autonomous Corporation for the electronic media had been under consideration from the British days. It has been the subject of several reports. Every one has accepted the need of an autonomous Corporation. In fact the present "political executive", gave its full support to the Bill in Parliament. The Bill was passed and sanction plan was in course of execution for bringing the Act into force by the end of March. 1991. If in spite of all this the new 'political executive' suddenly decides to consult 'in the first instance' all shades of public opinion to ensure that the establishment of the Corporation was in conformity with national interest ", it appears to be difficult to swallow the hypothesis that all this was bona fide. It is quite clear that this exercise by the new "political executive" is patently mala fide with the sole motive of hanging on to the exclusive control of the electronic media as long as possible by stalling the Act.

105. The learned Advocate for respondent No. 14 has finally concluded his submission by urging that the Court should pass appropriate order and restore the fundamental rights of the people of the country as guaranteed under Arts. 19(1)(a) and 21 of the Constitution.

106. The All India Joint Action Council of Doordarshan Production Staff Association was granted leave to intervene and was added as a party in the proceeding. Mr. K. S. Roy with Mr. Tapan Dutta and Mr. Arijit Banerjee also supported the case of the petitioners. It has been submitted on behalf of the said Association that although Prasar Bharati Act was passed in Parliament and President's assent was obtained on 12th September, 1990 the executive in order to retain its control over the two media namely Akashvani and Doordarshan have not as yet implemented the Act. It has further been submitted by him that the said Act was passed by the Legislature with the intention to free two media namely Akashvani and Doordarshan from bureaucratic control and place them under an independent body so as to play their role fearlessly and independently. He has also submitted that S. 3 of the said Act has provided that the Act would come into force on such date as the Central Govt. by notification in the Official Gazette would announce. But even after long lapse of three years the said Act has not been brought into force. It has also been submitted by Mr. Tapan Dutta, learned Advocate for the respondent that the Govt. has not only failed to bring the Act into effect but has steadily worked for consolidation of Govt. control over the media by introducing privatisation in the said two media by doing out time slotting to private producers. It has also been submitted that the Govt. ignored the fact that the Prasar Bharati Act has already been brought into statute book, and as its implementation is at the discretion of the Govt., no action in fairness, be taken by the Govt., which would, in effect, defeat the very purpose of the enactment. It has been submitted on behalf of the said Association that when the Legislature passes the enactment and leaves the introduction of the Act to the Execution, it does so, in order to avoid practical difficulties that may arise out of the introduction of such statute. It has also been submitted that even though there is no mention of any fixed time in the Prasar Bharati Act within which the Govt. is to bring the Act into force nor of any guideline on the basis of which the Act is to be introduced it is only expected that the implementation should be made within a reasonable period. In the instant case, the Govt. however, has disregarded the recommendation of the several Expert Committees and the intention of the Legislature and has failed to bring the Act into force although it was passed in 1991. The Govt. has also announced that the Act needed some amendments. It has been submitted that the Govt. has announced that some amendments are necessary for some operational difficulties but has not done anything to bring such amendments. Mr. Tapan Dutta has submitted that this inaction on the part of the Govt. to bring the Act into force has in effect nullified the intention of the Legislature. Moreover, it has been submitted on behalf of the Association that the said Prasar Bharati Act envisages complete bifurcation between Akashvani and Doordarshan. There was no provision for such bifurcation earlier which in effect has vitally affected the production staff of Doordarshan who have been denied legitimate promotion and other benefits. Doordarshan production staff has long been agitating for such bifurcation. The Govt. by not implementing the said Act has also resisted the demand of the production staff who have thereby suffered. Accordingly it has been submitted that the Court should intervene and pass appropriate direction.

107. Mr. Bikash Bhattacharyya, learned Advocate for respondent No. 15 has also supported the cause of the petitions. He also submitted that the Court should direct the Govt. to implement that as early as possible and it cannot be said that the Court is not competent to take steps. He has relied upon the judgment and decision in the case of Sarla Mudgul v. Union of India, and contended that in the said decision the Supreme Court directed the Govt. to implement the directive of Art. 44 of the Constitution of India by enacting uniform Civil Code and to file affidavit of indicating the steps taken in the matter. The Supreme Court in the said decision also directed the appointment of a Committee by Govt. for that purpose. The contention of Mr. Bhattacharyya is that the Supreme Court in the aforesaid decision did not hesitate to direct the executive authorities to enact Law to implement the Constitutional Board.

108. He has also relied upon the judgment and decision in the case of Ministry of Broadcasting, Govt. of India v. Cricket Association of Bengal, and submitted that in the aforesaid decision, the Supreme Court held that under Art. 19(l)(a) of the Constitution, freedom of Broadcasting is implicit in freedom of speech and expression. According to the Hon'ble Supreme Court, freedom of Broadcasting which means freedom from State control and in particular from censorship by Government.

109. He has also submitted that in the aforesaid decision, the Supreme Court also observed that Telegraph Act has become outdated and is not appropriate enough to deal with the modern electronic media. Government is also appreciating that legislated Prasar Bharati Act in Parliament but not implementing the same.

110. It has been submitted by Mr. Bikash Bhattacharyya that the Court should accordingly direct immediately implementation of the Prasar Bharati Act.

111. I have considered the respective submissions of the parlies and the decisions cited. The main question involved is: (1) if the Court has territorial jurisdiction to decide the question involved in this writ petition, and further (II) if the Court is competent to pass necessary directions for implementation of Prasar Bharati Act which has been left to the discretion of the Central Government by Parliament. So far as, the first question is concerned, it is to be considered what a cause of action is. In this connection, 1 may take note of judgment and decision of the Judicial Committee of the Privy Council in the case of Md. Khalil Khan v. Mahbub Aii Mian, of the said judgment line 10 the Privy Council has observed as follows:--

"The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment."

Reference may also be made to Stroud's Judicial Dictionary, 5th Edition (1986), Vol.1, page 378 which refers to cause of action has "the entire set of facts that gives rise to an enforceable claim." The phrase comprises every fact which if traversed, the plaintiff must prove in order to obtain judgment. Here is a case of infringement of individual right to information. Learned Advocate for the petitioners and the other supporting respondents have made out a case that Akashvani and Doordarshan are two most important media which propagates cultural views and ideals and also supplied necessary information on public issues, on issues of importance to the public at large. Prasar Bharati Act was brought into the statute book with a view to secure to all the members of the public proper information without being controlled and influenced by Govt. Right to information has been considered to be a part of the fundamental right of a citizen. The Prasar Bharali Act according to the petitioners is intended to provide correct and proper information and developed cultural values among citizens.

112. The Act, if implemented by notification in the Official Gazette, will have effect throughout India and will be available anywhere in India including in the territory of West Bengal. Therefore, the omission to bring the Act into force by way of non-issuance of notification affects rights of the people anywhere in the country including in the territory of West Bengal and, therefore, in my view, it cannot be said that the Court has no jurisdiction to entertain and decide the writ petition.

113. The judgment and decision in Darshanlal's case, reported in 1974 Cal LJ 27, relied upon by learned Solicitor General appears to me to be distinguishable in the facts of the instant case. In the instant case, the question is inaction of the Central Govt. which has affected the right to information of the petitioners as alleged in the petition. Accordingly the principles decided in DarshanlaPs case (supra) cannot apply in the instant case. On the question of jurisdiction, the judgment and decision in HINDALCO's case, , may also be taken note of.

114. In my view, judgment and decision in the case of Darshanlal Anand Prakash v. Collector of Customs and Central Excise, Shillong, reported in 1974 Cal LJ 27, cannot have any application in the instant writ petition. In the said writ petition different notifications issued by the Central Govt. were challenged on the ground that by the said notifications, the Central Govt. classified categories into several zones for the purpose of levying excise duty at varying rates on tea produced at the gardens according to the zones to which they belong. It was held that although the effect of the notification may take place within the jurisdiction, the same does not constitute part of the cause of action. In the instant case, there is no question to p challenge to any notification. The petitioners have on the contrary moved this Court being aggrieved by the Govt.'s inaction. Moreover, the said decision was made on the basis of Art. 226(1)(a) and at that material time Article 226 was not amended. Under the amended Art. 226, the scope is wider. In this connection following decisions may be taken note of:--

(1) Everest Coal Co. (P) Ltd. v. Coal Controller, reported in (1986) 90 Cal WN 438.

(2) Modern Food Industries (India) Ltd., Ahmedabad v. M. D. Juverkar, reported in 1989 Lab IC 224 (Guj).

(3) Union of India v. P. Kunhabdulla, reported in (1985) 1 Lab LJ 331.

(4) General Saw and Blades Co. v. Bharat Coking Coal Ltd., .

115. In the ease of Everest Coal Co. (P) Ltd. v. Coal Controllers, reported in (1986) 90 Cal WN 438, it was held by the Division Bench as follows:

"An order has been made by an authority or person at a place beyond the territorial limits of a particular High Court but the same is given effect to against the petitioner within-the said High Court's jurisdiction. In such a case, at least a part of the cause of action arises, where the impugned order is implemented. Thus, when an order becomes effective only when it is communicated or served, the service of the order or receipt of a notice thereof would form part of cause of action for filing a writ petition by the person aggrieved thereby."

116. In the case of Modern Food Industries (India) Ltd., Ahrnedabad v. M. D. Juverkar, reported in 1989 Lab IC 224, it was held as follows:

"The place where the order of termination of service was served gave rise to the cause of action. In the said case the order of termination was passed at Delhi and it was sent to Calcutta where the employee was serving.

Since the employee was on leave and staying at Ahmedabad and the order was held that a part of the cause of action arose within the jurisdiction of the Gujarat High Court. In paras 17, 18 at pages 235 to 238 of the Reports the issue relating to the jurisdiction was considered. At page 239 of the Reports the Court held that whether the order was communicated at Ahmedabad since he was at the relevant time on leave or for convenience of the employee or for any other reason was not material but what was material was the fact that it was communicated to him at Ahmedabad. The Court further held that it could not subscribe to the submission of the employee was posted at Calcutta. It further held that although a part of the cause of action can be said to have arisen at Calcutta also but that could not nullify the fact that its consequences also fell at Ahmedabad where the employee was informed of the termination of his services."

117. In the case of Union of India v. P. Kunhabdulla, reported in (1985) 1 Lab LJ 331, it was held by the Kerala High Court as follows:

"The order of removal became effective only on acceptance of the order communicated by registered post. In the said case the action was taken by authorities outside the State of Kerala. The employee concerned was not serving in the State of Kerala. However, since the order was received by the petitioner in Kerala the Court held that it had jurisdiction to entertain the writ petition."

118. In the case of General Saw and Blades Co. v. Bharat Coking Coal Ltd., , it was held by the Court as follows:

"Certain coal company (a Govt. company in Bihar) in March, 1987 issued tender notice inviting sealed tenders from intending buyers for the sale and disposal of various iron and steel scrap on "as is where is" basis on payment of earnest money in the form of Bank Draft. The tenders were to remain open and valid for acceptance for a period of six months from the date of opening of tender. The writ petitioner duly submitted tender for purchase of the various scrap and rejected iron and steel materials lying at various places. He duly quoted rate in respect of different such items. The writ petitioner duly deposited the amount of earnest money at the office of the aforesaid company. On opening of the tenders submitted by the writ petitioner and other intending buyers, it was found and declared that the writ petitioner was the highest bidder/offerer in respect of several items of materials: The writ petitioner was duly assured that the formal acceptance of the said tender in respect of the said tender would be issued in due course. By its letter dt. 27-10-87 addressed to the writ petitioner at Calcutta the company asked him to extend the validity of the tender till 30-11-87. The writ petitioner duly extended the validity of the said tender up to 31-12-87. Immediately after the receipt of the above letter, the writ petitioner visited from time to time the office of company and requested for issuance of formal letter of acceptance. In spite of assurances given to the writ petitioner, the company did not take any effective step whatsoever for issuance of formal letter of acceptance. That apart, the writ petitioner in March, 1988 received a letter from the company along with 3 cheque for the amount of the earnest money, whereby the earnest money as deposited by the writ petitioner was refunded. The writ petitioner protested against such illegal and unilateral action of refund of the earnest money by or on behalf of the company. The company authorities decided to retender the materials. The company by ils letter in June, 1988 merely quoted a clause of the tender according to which it had reserved the right to withdraw from sale any item advertised prior to acceptance of any tender and to accept or to reject any or all tenders or to decrease/ increase the quantity as advertised without assigning any reason thereto. On writ petition, it was alleged that such a rejection of its tender was illegal, unconstitutional, arbitrary and whimsical. The jurisdiction of the High Court to entertain the writ petition was also at issue:

It was held, (1) that in the facts of the instant case the part of cause of action really arose within the jurisdiction of Calcutta High Court on the basis of the letters issued by the company and served upon the writ petitioner at Calcutta which were received by the petitioner from the company at its Calcutta address within the jurisdiction of Calcutta High Court. This really constituted integral part of the cause of action and as such it could not be said that Calcutta High Court had no jurisdiction to entertain and decide the writ petitions.

119. The Division Bench judgment and decision in the case of Union of India v. HINDALCO, , has also settled the question in issue. In the aforesaid decision Darshanlal Anand Pra-kash's case (1974 Cal LJ 27) (supra) was considered and distinguished by the Division Bench of this Court. The Division Bench held and observed in paragraph 24 of the said judgment as follows:

"Under Art. 226(2) of the Constitution, the High Court may exercise its power conferred by clause(1) of Art. 226 to issue directions, orders or writs if the cause of action, wholly or in part, arises within the territory over which it exercises jurisdiction. It is, now well settled that that 'cause of action' means every fact which the plaintiff should prove, if traversed, in order to succeed in the suit. HINDALCO has come with a case that in view of the impugned orders, it has been suffering loss in its business in the sale of aluminium and its products produced and manufactured by it in Calcutta where its principal office is situated. If there had been no allegation of incurring of any loss as a result of the impugned orders, we are afraid, these would not have given'rise to any cause of action either wholly or in part, in Calcutta. Normally no person institutes any suit or proceeding unless his right is jeopardized or prejudiced in consequence of any action of a private individual or of the Govt. In the writ petition, there has been a categorical averment of the suffering of loss by HINDALCO by the sale of aluminium and aluminium products in Calcutta. We are now not concerned with the truth or otherwise of the allegation as the question of jurisdiction is to be determined on the basis of the allegation made in the writ petition. If there was no such allegation of any loss suffered by HINDALCO in Calcutta, the High Court would not entertain the writ petition, however, illegal the impugned orders may be. A writ petition is not entertained unless the petitioner comes with a case that he has been prejudiced by any action of the Government or a statutory body or authority. So, in our opinion, the writ petition, prima facie, discloses that a part of cause of action arose in Calcutta within the jurisdiction of this Court."

120. Moreover this is a case of public interest litigation where public at large are involved. The Supreme Court in the case of Peoples' Union for Democratic Rights v. Union of India, observed as follows:--

"A public interest litigation is a fundamentally different concept from the traditional adversary litigation. As the Supreme Court has observed in , "we wish to point out with all the emphasis at our command that public interest litigation which is a strategic arm of the legal aid movement and which is intended to bring justice within the reach of poor masses, which constitutes the low visibility area of humanity is totally different kind of litigation from the ordinary traditional litigation which is essentially of an adversary character where there is a dispute between two litigating parties, one making claim or seeking relief against the other and that other opposing such claim or resisting such relief. Public interest litigation is brought before the Court not for the purpose of enforcing the right of one individual against another as happens in the case of ordinary litigation but it is intended to promote and indicate public interest which demands that violation of constitutional or legal rights of large number of people who are poor, ignorant or in a socially or economically disadvanlaged position should not go unnoticed and unredressed. That would be destructive of the rule of law which forms one of the essential elements of public interest in any democratic form of Govt."

121. Again in the same case the Supreme Court observed:

"Public interest litigation, as we conceive it, is essentially a co-operative or collaborative effort on the part of the petitioner, the State or public authority and the Court to secure observance of the constitutional or legal rights, benefits or privileges conferred upon the vulnerable sections of the community and to reach social justice to them. The State or public authority against whom public interest litigation is brought should be as much interested in ensuring basic human rights, constitutional as well as legal, to those who are in a socially and economically dis-advantaged position as the petitioner who brings the public interest litigation before the Court. The State or public authority which is arrayed as a respondent in public interest litigation should, in fact, welcome it, as it would give it an opportunity to right a wrong or to redress an injustice done to the poor and weaker sections of the community whose welfare is and must be the prime concern of the State or public authority."

Judgment and decision in the case of Ban-dhua Mukti Morcha v. Union of India, , may also be taken note of. The said decision was in respect of public interest litigation for releasing a large number of bonded labourers said to be working under "inhuman and intolerable conditions" in stone quarries in Faridabad district of Haryana. The Addl. Solicitor General appearing for the State of Haryana and Mr. Phadke on behalf of one of the mine lessees contended that even if what is alleged by the petitioner is true, it could not support a writ petition under Art. 32 of the Constitution, because no fundamental right of the petitioner or of the workmen on whose behalf the writ petition has been filed, can be said to have been infringed. In dealing with this preliminary objection the Supreme Court in paragraph 9 of the said judgment observed inter alia as follows :--

"This contention is, in our opinion, futile and it is indeed surprising that the State Govt. should have raised it in answer to the writ petition. We can appreciate the anxiety of the mine lessees to resist the writ petition on any ground available to them, be it hyper-technical or even frivolous, but we find it incomprehensible that the State Govt. should urge such a preliminary objection with a view to stifling at the threshold of an enquiry by the Court as to whether the workmen are living in bondage and under inhuman conditions. We should have thought that if any citizen brings before the Court a complaint that a large number of peasants or workers arc bonded serfs or are being subjected to exploitation by a few mine lessees or contractors or employers or being denied the benefits of social welfare laws, the State Govt. which is, under our constitutional scheme, charged with the mission of bringing about a new socio-economic order where there will be social and economic justice for everyone and equality of status and opportunity for all, would welcome an enquiry by the Court so that if it is found that there are in fact founded labourers or even if the workers are not bonded in the strict sense of the term as defined in the Bonded Labour System (Abolition) Act, 1976 but they are made to provide forced labour or are consigned to a life of utter deprivation and degradation, such a situation can be set right by the State Govt. Even if the State Govt. is on its own enquiry satisfied that the workmen are not bonded and are not compelled to provide forced labour and are living and working in decent condition with all the basic necessities of life provided to them, the State Govt. should not baulk an enquiry by the Court when a complaint is brought by a citizen, but it should be anxious to satisfy the Court and through the Court, the people of the country, that it is discharging its constitutional obligation fairly and adequately and the workmen are being ensured social and economic justice. We have on more occasions than one said that public interest litigation is not in the nature of adversary litigation but it is a challenge and an opportunity to the Govt. and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them social and economic justice which is the sine qua non of our Constitution. The Govt. and its officers must welcome public interest litigation because it would provide them an occasion to examine whether the poor and the down-trodden are getting their social and economic entitlements or whether they are continuing to remain victims of deception and exploitation at the hands of strong and powerful sections of the community and whether social and economic justice has become a meaningful reality for them or it has remained merely a teasing illusion and a promise of unreality, so that in case the complaint in the public interest litigation were found to be true, they can in discharge of their constitutional obligation root out exploitation and injustice and ensure to the weaker sections their rights and entitlements. When the Court entertains public interest litigation, it does not do so in a cavalier spirit or in a confrontational mood or with a view to tilting at executive authority or seeking to usurp it, but its attempt is only to ensure observance of social and economic rescue programmes, legislative as well as executive, framed for the benefit of the have-nots and the handicapped and to protect them against violation of their basic human rights which is also the constitutional obligation of the executive. The Court is thus merely assisting in the realisation of the constitutional objectives."

122. It is quite obvious that in a public interest litigation the petitioner and the State are not supposed to he pitted against each other, there is no question of one party claiming or asking for relief against the other and the Court deciding between them. Public interest litigation is a co-operative litigation in which the petitioner, the State or public authority and the Court arc to co-operate with one another in ensuring that the constitutional obligation towards those who cannot resort to the Courts to protect their constitu-tional or legal rights is fulfilled. In such a situation the concept of cause of action evolved in the background of private law and adversary procedure is out of place. The only question that can arise is whether the prayers in the petition, if granted, will ensure such constitutional or legal rights.

123. In the affidavit of Vijay Kumar Sharma affirmed on 8th Sept., 1993 (hereinafter referred to as the said affidavit) being the affidavit-in-opposition filed on behalf of Union of India it was pointed out that immediately after the present Govt. was installed in June, 1991, it was felt that for proper implementation of Prasar Bharati Act certain amendments ought to be carried out. The Ministry of Information and Broadcasting in consultation with several other Ministries carried out the comprehensive review of the provisions of the Act which brought into focus the interest of carrying out certain Amendments as appears from the note on Prasar Bharati Bill and its Amendments made by the Ministry of Information and Broadcasting being Annexure R-1 to the said affidavit.

124. Proposed amendments with the reason thereof are set out in the following paragraphs:

"I. Sub-section (1) of Section II Gist of the existing provision The Central Govt. is empowered not to transfer to the Corporation, any officers or employees on the cadres of Akashvani and Doordarshan. The proviso to this sub-section prohibits issue of order in respect of any officer(s) or other employees in the Akashvani or Doordarshan who opt(s) against becoming an employee of the Corporation.

Reason for proposed amendment The proviso is silenl about the manner of regulating the services of an officer or employees who opt(s) against being transferred to the Corporation. The proposed amplification is suggested to make the position clear.

Proposed provision The following is to be added at the end of the proviso:

"The service conditions of such employees will be governed by the rules and regulation issued by the Central Government from time to time."

2. Sub-section (2) of Section 11 Gist of the existing provision The officers/employees in Akashvani and Doordarshan but borne on cadres outside Akashvani and Doordarshan (e.g. Indian Information Service, Central Secretariat Service etc.) are given the option to become employees of the Corporation or to continue on deputation with the Corporation on terms and conditions to be prescribed.

Reason The provision for continued deputation in respect of officers belonging to the Indian Information Service and Central Secretariat Reason for proposed amendment The proviso is silent about the manner of regulating the services of an officer or employees who opt(s) against being transferred to the Corporation. The proposed amplification is suggested to make the position clear.

Proposed provision

125. The following is to be added at the end of the proviso :

"The service conditions of such employees will be governed by the rules and regulation issued by the Central Government from time to time."

2. Sub-section (2) of Section 11 Gist of the existing provision The Officers/employees in Akashvani and Doordarshan but borne on cadres outside Akashvani and Doordarshan (e.g. Indian Information Service, Central Secretariat Services etc.) are given the option to become employees of the Corporation or to continue on deputation with the Corporation on terms and conditions to be prescribed.

Reason The provision for continued deputation in respect of officers belonging to the Indian Information Service and Central Secretariat Service etc. is to be deleted as their continued deputation will establish an indirect presence of the Government in the Prasar Bharati. The option for joining the Prasar Bharati should not be restricted to the persons belonging to these services who are serving in electronic media only. It is visualised that Prasar Bharati would make a selection to its posts from amongst all the members of these services including those who had served in the electronic media. It is proposed to continue the members of these services on deemed deputation (without deputation allowance) till Prasar Bharati makes regular appointments.

Proposed provision The provision for continued deputation in respect of officers belonging to IIS/CSS etc. is to be removed by deleting the existing Section 11(2) and the proviso and replacing it with a new Section 11(2) for the deemed deputation of these employees till Prasar Bharati makes regular appointments.

Section 23 This enables the Central Govt. to issue to the Corporation directions in the interest of the sovereignty, unity and integrity of India or the security of the State or preservation of public order not to make a broadcast or to make a broadcast on any matter of public importance specified in the directions.

Reasons The existing provisions of this Section are somewhat ambiguous. It is, therefore, proposed to bring more clarity through the proposed amendment.

Proposed provision To indicate that Government would enjoy the power of issuing directions to the Corporation not only about what not to broadcast but also to direct it to make broadcast in the interest of the sovereignty and integrity of the nation etc. Section 25 The Section provides for the manner in which the Board of Prasar Bharati can be superseded. This empowers the President to issue a show cause notice to the Corporation after receiving a recommendation from Parliament for the suppression of its Board.

Proposed Provision The primacy of the Parliament in deciding about the suppression of the Prasar Bharati is proposed to be highlighted through the proposed amendment.

The following sequence is proposed to be incorporated :

(i) show cause notice.

(ii) executive determination on receipt of reply to the show cause notice.

(iii) recommendation to Parliament by the executive and Parliamentary approval of suppression.

(iv) on the recommendation of the Parliament the President shall issue the order of suppression.

126. The proposed amendments it has been suggested would obviate operational difficulties that were likely to arise due to the existing provisions of these sections after the Prasar Bharati become operational.

127. It appears therefore from the said note that the operational difficulties if there be any would no longer be there if the proposed amendments are effected. The said note was prepared as early as in 1993, since the same has been annexed to the said affidavit which was affirmed on 8th September, 1993, several orders and directions have been passed from time to time. But no tangible material has been disclosed by the Govt. showing any difficulty in effecting the amendment and bringing the Act into force with the proposed amendment. On January 16, 1995 following order was passed by me. Mr. Banerjee, learned advocate for All India Joint Committee of Doordarshan Production Staff has produced in Court a xerox copy of the letter signed by 15 eminent Ministers of India dated 3-1-95.

128. In the aforesaid letter, the signatories have requested the Prime Minister that the Act unanimously passed by the legislature having already received due assent from the President of India, should see the light of day without delay.

129. Mr. Das, learned Advocate for Union of India submits that the matter will be looked into since the letter has been sent to the Prime Minister and he will furnish the information to this Court on 2-7-95.

130. Let this matter stand adjourned till 2-2-95 and appear in the list on that day for further orders.

131. Let a plain copy of this order duly countersigned by the Assistant Registrar (Court) be handed, over to the learned advocates for the appearing parties on their undertaking to apply for and obtain certified copies of the same.

132. No information, however, was furnished to the Court. It appears from the records that it is not the case of the Government that they will not bring the Act into force. The only reason assigned by the Govt. for non-implementation of the Act is that the Act involves operational difficulties and as such proposed amendments, which were felt, would obviate the operational difficulties. If the Government feels that the proposed amendments would obviate the operational difficulties, there is no reason why the Government should not bring the Act into force with the amendments and at least take steps in the matter. This will be really in consonance with the Government policy, as disclosed. The true import of the freedom of speech and the expression and right to information has been clarified by the Supreme Court in the case of Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal . The Supreme Court in the aforesaid judgment referred to its earlier decision in the case of Life Insurance Corporation v. Manubhai Shah (1992 AIR SCW 3099) and observed in the said judgment inter alia as follows :--

"It has been held by this Court in Life Insurance Corporation v. Manubhai Shah that the freedom of speech and expression guaranteed to the citizens of this country includes the right to propagate one's views through print media or through any other communication channel, e.g., the radio and television. Every citizen of this free country, therefore, has the right to air his or her views through the printing and/or the electronic media subject of course to permissible restrictions imposed under Art. 19(2) of the Constitution." It has also been held in the said decision that "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 lifeline of any democratic institution and any attempt to stifle, suffocate or gag this right would sound a death-knell to democracy and would help usher in autocracy or dictatorship. 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 channel's 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. "To the same effect is the holding in Odyssey Communications referred to supra. Once this is so, it follows that no monopoly of this media can be conceived for the simple reason that Art. 19(2) does not permit State monopoly unlike clause (6) of Art. 19 vis-a-vis the right guaranteed by Art. 19(1)(g)."

The Supreme Court further observed in the said judgment as follows :--

"All the constitutional courts whose opinions have been referred to hereinbefore have taken the uniform view that in the interest of ensuring plurality of opinions, views, ideas and ideologies, the broadcasting media, cannot be allowed to be under the monopoly of any one -- be it the monopoly of Government or of an individual, body qr organisation. Government control in effect means the control of the political party or parties in power for the time being. Such control is bound to colour and in some cases, may even distort the news, views and opinions expressed through the media. It is not conducive to free expression of contending viewpoints and opinions which is essential for the growth of a healthy democracy. I have said enough hereinbefore in support of the above propositions and we do not think it necessary to repeat the same over again here. I have also mentioned hereinbefore that for ensuring plurality of views, opinions and also to ensure a fair and balanced presentation of news and public issues, the broadcast media should be placed under the control of public, i.e., in the hands of statutory corporation or corporations, as the case may be. This is the implicit command of Art. 19(1)(a). I have also stressed the importance of constituting and composing these corporations in such a manner that they ensure impartiality in political, economic and social and other matters touching the public and to ensure plurality of views, opinions and ideas. This again is the implicit command of Art. 19(1)(a). This medium should promote the public interest by providing information, knowledge and enter-tainment of good quality in a balanced way. Radio and Television should serve the role of public educators as well. Indeed, more than one corporation for each media can be provided with a view to provide competition among them (as has been done in France) or for convenience, as the case may be.

133. Now, coming to the Indian Telegraph Act, 1885, a look at its scheme and provisions would disclose that it was meant for a different purpose altogether. When it was enacted, there was neither radio nor, of course television, though it may be that radio or television fall within the definition of "telegraph" in S. 3(1). Except S. 4 and the definition of the expression "telegraph" no other provision of the Act appears to be relevant to broadcasting media. Since the validity of S. 4(1) has not been specifically challenged before us, we decline to express any opinion thereon. The situation is undoubtedly unsatisfactory. This is the result of the legislation in this country not keeping pace with the technological developments. While all the democratics in the world have enacted laws specifically governing the broadcasting media, this country has lagged behind, rooted in the Telegraph Act of 1885 which is wholly inadequate and unsuited to an important medium like radio and television, i.e., broadcasting media. It is absolutely essential, in the interest of public, in the interests of the freedom of speech and expression guaranteed by Art. 19(1)(a) and with a view to avoid confusion, uncertainty and consequent litigation that Parliament steps in soon to fill the void by enacting a law or laws, as the case may be, governing the broadcasting media, i.e., both radio and television media. The question whether to permit private broadcasting or not is a matter of policy for the Parliament to decide, subject to what conditions and restrictions should it be permitted. (This aspect has been dealt with supra). The fact remains that private broadcasting, even if allowed, should not be left to market forces, in the interest of ensuring that a wide variety of voices enjoy access to it."

134. Again the Supreme Court in the same judgment has observed as follows :--

"Broadcasting media is inherently different from press or other means of communication /information. The analogy of press is misleading and inappropriate. This is also the view expressed by several constitutional courts including that of the United States of America.

135. I must clarify what 1 say; it is that the right claimed by the petitioners (CAB and BCCI) which in effect is no different in principle from a right to establish and operate a private TV station does not flow from Art. 19(1)(a); that such a right is not implicit in it. The question whether such right should be given to the citizens of this country is a matter of policy for the Parliament. Having regard to the revolution in information technology and the developments all around. Parliament may, or may not, decide to confer such right. If it wishes to confer such a right, it can only be a way of an Act made by Parliament. The Act made should be consistent with the right of free speech of the citizens and must have to contain strict programme and other controls, as has been provided, for example, in the Broadcasting Act 1991 in the United Kingdom. This is the implicit command of Art. 19(1)(a) and is essential to preserve and promote plurality and diversity of views, news, opinions and ideas."

136. The Supreme Court has further observed in paragraph 191 of the said judgment as follows :

"We must also bear in mind that the obligation of the State to ensure this right to all the citizens of the country (emphasis hereinbefore) creates an obligation upon it to ensure that the broadcasting media is not monopolised, dominated or hijacked by privileged, rich and powerful interests. Such monopolisation or domination cannot but be prejudicial to the freedom of speech and expression of the citizens in general an aspect repeatedly stressed by the Supreme Court of United States and the Constitutional Courts of Germany and Italy."

137. The Supreme Court took into consideration in the aforesaid decision, the right of the listner; and viewers and observed further as follows :

"The importance and significance of television in the modern world needs no emphasis. Most people obtain the bulk of their information on matters of contemporary interest from the broadcasting medium. The television is unique in the way in which it intrudes into our homes. The combination of picture and voice makes it an irresistibly attractive medium of presentation. Call it idiot box or by any other pejorative used for public good.

Now, what does this public good mean and signify in the context of the broadcasting, medium? In a democracy, people govern themselves and they cannot govern themselves properly unless they are aware -- aware of social, political, economic and other issues confronting them. To enable them to make a proper judgment on those issues, they must have the benefit of a range of opinions on those issues. Right to receive and impart information is implicit in free speech. This plurality of opinions, views and ideas is indispensable for enabling them to make an informed judgment on citizens, to safeguard their rights as also the interests of society and State. All the constitutional courts of leading democracies, reference to which has been made heretobefore, have recognised and reiterated this aspect. This is also the view of the European Court of Human Rights. In Castells v. Spain the court held that free political debates is "at the very core of the concept of a democratic society."

The Supreme Court has also held in the aforesaid decision that from the standpoint of Art. 19(1)(a), what is paramount is the right of the listners and viewers and not the right of the broadcaster -- whether the broadcaster is the State, public corporation or a private individual or body. 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. Control by public means control by an independent public corporation or corporations, as the case may be formed in a statute Broadcasting provides an essential service in a democratic society and could legitimately be reserved for a public insti-tution, provided certain conditions are met. The corporation(s) must be constituted and composed in such a manner as to ensure its independence from Government and its impartiality on public issues. When presenting or discussing a public issue, it must be ensured that all aspects of it are presented in a balanced manner without appearing to espouse any one point of view. This will also enhance the credibility of the media to a very large extent; a controlled media cannot command that level of credibility.

It has been held by this Court in LIC v. Manubhai Shah (1992 AIR SCW 3099) that the freedom of speech and expression guaranteed to the citizens of this country "includes the right to propagate one's views through print media or through any other communication channel, e.g., the radio and television. Every citizen of this free country, therefore, has the right to air his or her views through the printing and/or the electronic media subject of course to permissible restrictions imposed under Art. 19(2) of the Constitution." To the same effect is the holding in Odyssey Communications. Once this is so, it follows that no monopoly of this media can be conceived for the simple reason that An. 19(2) does not permit State monopoly unlike clause (6) of Art.. 19 vis-a-vis the right guaranteed by Art. 19(1)(g).

138. The Prasar Bharati Act seeks to establish an Autonomous Corporation intended to serve and promote right to information of the public in the truest sense of term.

139. The autonomy from the Governmental control should be balanced and the Act envisages the said situation. In fact, as already noted, the Government does not also take a different standpoint except that some amendments have been proposed. No valid or substantial reason has been disclosed for such unnecessary delay in bringing the amendments and to bring the Act into force with amendments if the Government is really keen to do so. After the matter was heard in details iind hearing was concluded, the Supreme Court passed a judgment in the case of Sarla Mudgal v. Union of India which may he taken note of. The Supreme Court in the aforesaid decision considered the necessity of implementation of uniform Civil Court as enunciated in Directive Principles of State Policy under Art. 44 of the Constitution of India and requested the Government of India to take appropriate steps in the matter for implementation of the same and directed the Government to file an affidavit of a responsible officer as to what step have been taken considering all aspects of the matter.

140. Considering all aspects of ihe case in the instant writ petition, it is expected that the Central Government should take appropriate steps to give shape to the objectives and ideals of the Prasar Bharati Act as early as possible and if the Central Govt. considers necessary, the proposed amendmenls as suggested and which appears from the affidavit filed on behalf of the Union of India may also be given effect to. The Government also will be at liberty to pass fresh legislation in this respect if it feels fit and proper. Such steps should, however, be taken within 31st December, 1995, and an affidavit should be filed by a competent officer of the Ministry of Information and Broadcasting stating the steps taken. In the event, the Central Government feels that such steps cannot be taken within such period, Government should record reasons for the same and file a report to that effect in the form of an affidavit.

141. The writ petition is disposed of with the directions as above.

There will be no order as to costs.

Liberty to mention.

Let plain copies of the operative part of this order duly countersigned by the Assistant Registrar (Court) be handed over to the Learned Advocates for the parties on usual undertaking to apply for and obtain certified copies of the same.

142. Order accordingly.