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On 4.7.2012, another programme called "Popcorn" was broadcast by the said channel on 4.7.2012 at 07.57 hours. Alleging that the said programme appeared to be vulgar, obscene and offending to good taste and did not appear to be suitable for any restricted public exhibition, another show cause notice dated 10.10.2012 was issued to the petitioner. The first show cause notice was replied by the petitioner on 10.7.2012, whereas the second show cause notice was replied on 26.10.2012.

2. The BCCC is a 13-members body headed by a former Chief Justice of this Court and includes four eminent persons, four members from any national level statutory commission and four broadcast members. The petitioner addressed a letter to Broadcasting Contents Complaints Council (BCCC) with reference to the first show cause notice received from the respondent. The matter was considered by BCCC in its meeting held on 13.9.2012. The BCCC noticing that the channel had apologized for airing the episode, had submitted that it was a genuine operational mess up and had given an undertaking not to repeat the said episode besides assuring to drop the episode with similar contents, advised the said channel to discontinue the said episode and be cautious about airing the programme having similar contents in future. Vide its letter dated 26.9.2012, BCCC informed the respondent that it had found the contents of the said episode to be objectionable and had advised the petitioner to discontinue the said episode and be cautious about airing the programme with similar contents in future.

Per contra, the learned Additional Solicitor General submitted that

(i) it was not obligatory for the respondent to consult BCCC (ii) the alleged failure to consult BCCC would be of no consequence since the BCCC also came to the conclusion that the contents of the programme telecast by the petitioners were objectionable and (iii) the Court, in exercise of writ jurisdiction, cannot interfere with the penalty imposed by the Competent Authority unless it is shown that the order passed is without jurisdiction, actuated by malafide or perverse and (iv) the penalty imposed upon the petitioner cannot be said to be disproportionate or excessive.

5. Section 20 of The Cable Television Networks (Regulations) Act, 1995, inter alia, provides that where the Central Government thinks it necessary or expedient so to do in the interest of public order, decency or morality, it may, by order, regulate or prohibit the transmission or re- transmission of any channel or programme, and according to the learned ASG, the consultation with BCCC not being a statutory requirement, the failure to acknowledge any such consultation would not vitiate the order passed by the Central Government under Section 20 of the Act. On the other hand, the learned senior counsel for the petitioner drew my attention to a decision of this Court in Indraprastha People & Anr vs. UOI in W.P. Civil 1200/2011,. In that case, this Court took on record the stand of Union of India that as a stopgap mechanism the self-regulatory body formed by the Indian Broadcasting Foundation named „Broadcasting Consumers Complaint Committee‟ was recognized by the Union of India as a body competent to take cognizance of and decide complaints pertaining to violation of law by broadcasters, but since the decisions by the said committee would lack the legal foundation to take action, its decisions shall be treated by the Union of India as the foundation to take appropriate action and pass necessary directions as also orders against the offender. He also drew my attention to Clause 10.2 of the Policy Guidelines For Up-linking of Television Channels From India, which, inter alia, provides that while considering renewal of transmission granted for setting up of up-linking of television channels, which is to be granted only if the channel is not found guilty of violating the terms and conditions of the permission including violation of programme and advertisement code on five occasions or more, the question as to what would constitute violation is to be determined in consultation with the established self-regulatory mechanism and BCCC, being the only self- regulating mechanism available to the Government in this regard, it was obligatory to hold a meaningful consultation with BCCC before imposing any penalty upon the channel. With respect to this provision of the guidelines, the learned ASG submitted that the aforesaid consultation would be necessary only while considering the telecast for renewal of the permission and not while considering action under Section 20(2) of the Cable Network Act.

It was also contended by the learned senior counsel for the petitioner that the respondents have referred more than 100 complaints alleging violation of Policy Guidelines for up-linking of BCCC thereby acknowledging the requirement of consultation with it and, therefore, the failure of the respondent to consult BCCC in their case would be clearly discriminatory.

6. It would be seen from a perusal of the provisions of the Cable Television Networks (Regulations) Act, 1995 that consultation with BCCC is not a requirement laid down in the said Act. The constitutionality of Section 20 of the said Act has not been challenged by the petitioner in this writ petition. Therefore, there is no occasion for the Court to go into the question as to whether, in the absence of consultation with an independent body, the said section would be violative of Article 19(1)(a) of the Constitution.