Delhi High Court
Deepak Maini vs Star Plus & Ors. on 29 July, 2009
Author: Ajit Prakash Shah
#43-44
* IN THE HIGH COURT OF DELHI AT NEW DELHI
43.
+ W.P.(C) 10383/2009
DEEPAK MAINI ..... Petitioner
Through Mr. N.S. Dalal, Advocate
versus
STAR PLUS & ORS. ..... Respondents
Through Mr. Mukul Rohatgi, Senior
Advocate, Mr. Rajiv Nayar,
Senior Advocate and Mr. Ramji
Srinivasan with Mr. Sai
Krishna Rajagopal, Advocate
for R-1.
Ms. Shilpa Singh with
Mr. Anurag Kumar, Advocates
for R-3/UOI.
Mr. Sidharth Chopra and
Mr. Nitin Sharma, Advocates
AND
44.
+ W.P.(C) 10396/2009
PRABHAT KUMAR PUSHP ..... Petitioner
Through Mr. Vikas Singh, Senior
Advocate with Mr. Rahul
Shukla, Ms. Sarika Singh,
Ms. Amrita Narayan, Ms. Udita
Singh and Mr. N. Sharma,
Advocates
WP(C) Nos. 10383/2009 & 10396/2009 Page 1 of 8
versus
STAR PLUS AND ANOTHER ..... Respondents
Through Mr. Mukul Rohatgi, Senior
Advocate, Mr. Rajiv Nayar,
Senior Advocate and Mr. Ramji
Srinivasan with Mr. Sai
Krishna Rajagopal, Advocate
for R-1.
Ms. Shilpa Singh with
Mr. Anurag Kumar, Advocates
for R-3/UOI.
Mr. Sidharth Chopra and
Mr. Nitin Sharma, Advocates
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE MANMOHAN
ORDER
% 29.07.2009
Present batch of two writ petitions have been filed under Article
226 of Constitution of India seeking a ban on telecast of „Sach Ka
Samna‟ shows. It has further been prayed that this Court should issue
appropriate writ, order or direction to respondents to take appropriate
steps for regulating TV broadcasting and for setting up a regulatory
body like Central Board of Film Certification.
Mr. N.S. Dalal, learned Counsel for petitioner in W.P.(C)
10383/2009 contended that telecast of „Sach Ka Samna‟ shows have
not only led to erosion of social values but also pose a grave threat to
our Country‟s culture. He submitted that there was neither any rule,
regulation nor any regulatory mechanism to regulate telecast of any
television show. Mr. Dalal referred to some of the questions put to
participants on „Sach Ka Samna‟ show to contend that they were not
only vulgar but also obscene.
Mr. Vikas Singh, learned Senior Counsel appearing for
petitioner in W.P.(C) 10396/2009 submitted that airwaves are public
property and despite the Supreme Court‟s mandatory direction in
Secretary, Ministry of Information and Broadcasting, Government
of India & Ors. Vs. Cricket Association of Bengal & Ors. reported in
1995 (2) SCC 161 no regulatory authority had been created to regulate
the content of television programmes. He drew our attention to Cable
Television Networks (Regulation) Act, 1995 (hereinafter referred to
as "Act, 1995") as well as Rules framed thereunder to contend that
though under the said Act, the Central Government had the power to
regulate/prohibit transmission of programmes on cable T.V. which
were indecent or immoral, but the Government as of today had no
power to regulate the new Direct To Home (in short "DTH")
television technology. Section 5 and 20 of the Act, 1995 as well as
relevant portions of Rule 6 of Cable Television Networks Rules, 1994
(hereinafter referred to as "Rules, 1994") are reproduced hereinbelow
for ready reference :-
ACT, 1995
―5. Programme code.--No person shall transmit or re-
transmit through a cable service any programme unless
such programme is in conformity with the prescribed
programme code.
xxxxx xxxxx xxxxx
20. Power to prohibit operation of cable television
network in public interest.--
xxxxx xxxxx xxxxx
(2) Where the Central Government thinks it necessary or
expedient so to do in the interest of the -
(i) sovereignty or integrity of India; or
(ii) security of India; or
(iii) friendly relations of India with any foreign State; or
(iv) public order, decency or morality,
it may, by order, regulate or prohibit the transmission on re-
transmission of any channel or programme.
RULE, 1994
6. Programme Code.--(1) No programme should be carried in
the cable service which--
(a) offends against good taste or decency;
xxxxx xxxxx xxxxx
(i) criticises, maligns or slanders any individual in person or
certain groups, segments of social, public and moral life of the
country;
xxxxx xxxxx xxxxx
[(o) is not suitable for unrestricted public exhibition.]
Consequently, Mr. Vikas Singh submitted that there was a
vaccum/hiatus inasmuch as there was no statutory mechanism or rules
governing the telecast of programmes by TV channels. Therefore,
according to him, this Court should fill the void by issuing appropriate
guidelines/directions.
On the other hand, Mr. Mukul Rohatagi, learned Senior
Counsel appearing for respondent-TV Channel stated that „Sach Ka
Samna‟ show was based on an American TV programme called "The
Moment of Truth". He further stated that the said programme
promotes truth and it had been telecast in over twenty countries all
over the world. Mr. Rohatagi further pointed out that respondent-TV
Channel had already received a show cause notice dated 22 nd July,
2009 issued by Ministry of Information and Broadcasting under
Section 5 of Act, 1995 read with Rule 6 of Rules, 1994 stating as to
why action under Section 20 of Act, 1995 should not be taken.
Freedom of speech and expression have been guaranteed as a
Fundamental Right by Article 19(1)(a) of Constitution of India. The
Right of Free Speech has been hailed as, ―most important‖, ―charter
of liberty‖ as well as ―crux of fundamental rights‖. Undoubtedly,
freedom of speech and expression can be restricted on the ground of
„decency‟ or „morality‟.
But „obscenity‟, „indecency‟ and „immorality‟ are relevant
concepts. In fact, standards of morality and decency in the same
society vary from time to time and from person to person. In the case
of Madhu Mukul Tripathi & Anr. Vs. Union of India & Ors. in
W.P.(C) 1194-95/2006 decided on 10th September, 2008, wherein the
petitioners had prayed for framing of guidelines to regulate the print
and electronic media pending enactment of statutory provisions, this
Court had observed that the said prayer cannot be granted as the issues
involved were of a complex nature and several competing interests
had to be balanced. Consequently, in our opinion, it is not for Courts
to frame guidelines to regulate the content on TV as this exercise is
best left to the Government itself.
In any event, we are of the opinion that there is no
vaccum/hiatus inasmuch as the Programme and Advertisement Code
framed under Act, 1995 is applicable to downlinking of television
channels like the respondent-TV Channel. In this connection, we may
refer to the policy guidelines for downlinking of television channels
dated 11th November, 2005:-
F.No.13/2/2002-BP&L/BC-IV
Government of India
Ministry of Information and Broadcasting
Broadcasting Wing
New Delhi.
th
Dated : 11 November, 2005
POLICY GUIDELINES FOR DOWNLINKING OF
TELEVISION CHENNELS
Ministry of Information and Broadcasting, Government of
India, has formulated policy guidelines for downlinking all
satellite television channels downlinked/received/transmitted and
re-transmitted in India for public viewing. Consequently, no
person/entity shall downlink a channel, which has not been
registered by the Ministry of Information and Broadcasting under
these guidelines. Henceforth, all persons/entities providing
Television Satellite Broadcasting Services (TV Channels) uplinked
from other countries to viewers in India as well as any entity
desirous of providing such a Television Satellite Broadcasting
Service (TV Channel), receivable in India for public viewership,
shall be required to obtain permission from Ministry of
Information and Broadcasting, in accordance with the terms and
conditions prescribed under these guidelines.
The guidelines are as given below :-
xxxxx xxxxx xxxxx
5. BASIC CONDITIONS/OBLIGATIONS
5.1 The Company permitted to downlink registered
channels shall comply with the Programme and Advertising
Code prescribed under the Cable Television Networks
(Regulation) Act, 1995.
Accordingly, we are of the opinion that it is open to
Government to take action under Act, 1995. Consequently, we are
of the opinion that as our interference is not called for, the present
petitions are dismissed, but with no order as to costs.
CHIEF JUSTICE
MANMOHAN, J
JULY 29, 2009
rn
