Sai Lok Kalyan Sanstha Through ... vs Union Of India & Ors.
2014 Latest Caselaw 6419 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision: 3rd December, 2014.
+                                WP(C) No. 3252/2014
       SAI LOK KALYAN SANSTHA
       THROUGH PRESIDENT                         ..... Petitioner
                   Through: Mr. Ajay Gautam (in-person)

                                 Versus
       UNION OF INDIA & ORS.                             ..... Respondents
                    Through:           Mr. Amit Mahajan, CGSC /UOI.
                                       Ms. Zubeda Begum, Standing
                                       Counsel for GNCTD.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. This petition under Article 226 of the Constitution of India filed as a

Public Interest Litigation flags the issue of broadcast of a large number of

programmes/advertisements on the television channels based on Astrology,

'Lal Kitab', Tarot, Numerology, 'Devi Shakti aur Kripa', by so called self

made astrologers, 'swamiji', 'panditji', 'guruji' and 'babaji' who promise

cures of various ailments on payment of money. Alleging such claims to be

not based on any logic and scientific verification and being detrimental to

public interest, reliefs of :-

i. directing the respondents Union of India, Government of National

Capital Territory of Delhi and News Broadcasters Association to

establish a regulatory mechanism to regulate or monitor the

broadcasting of programmes related to astrology etc. and magic

cures of diseases and bad omen; and,

ii. prohibiting the broadcasting of such programmes till such

mechanism is put into place;

are claimed.

2. The petition came up first before us on 21st May, 2014 when the

counsel for the Ministry of Information and Broadcasting, Government of

India undertook to place before us the Programme Code for monitoring the

broadcasting in Electronic Media.

3. The counsel has today handed over in Court the 'Code for Self-

Regulation in Advertising' as prescribed by The Advertising Standards

Council of India and a copy of the Advisory dated 21st August, 2014 issued

by the Ministry of Information and Broadcasting. Though we drew the

attention of the counsel to the policy guidelines formulated by the Ministry

of Information and Broadcasting for downlinking of all satellite channels

downlinked/received/transmitted and re-transmitted in India for public

viewing but he was not aware of and had no instructions with respect

thereto. We have also heard Mr. Ajay Gautam, President of the petitioner

appearing in person. He has drawn attention to the order dated 29 th August,

2012 of the Division Bench of this Court in WP(C) No. 2954/2012 titled

A.K. Jain Vs. Union of India directing all the concerned authorities to take

remedial action to prevent publication of advertisements and telecast of

programmes endorsing magic remedies / cures. He has contended that

inspite of direction of this Court in the said order, no action has been taken.

4. We are of the view that there is no need to issue notice of this petition

or to otherwise keep the same pending.

5. In view of the haphazard mushrooming of cable television networks

all over the country as a result of the availability of signals of foreign

television networks via satellites and which was perceived in many quarters

as a "cultural invasion" since the programmes available on these satellite

channels were predominantly western and totally alien to the Indian culture

and way of life, and finding that subscribers of the said cable television

networks, the programmers and the cable operators themselves were not

aware of their rights, responsibilities and obligations in respect of the

quality of service, technical as well as content-wise, use of material

protected by copyright, exhibition of uncertified films, protection of

subscribers from anti-national broadcasts from sources inimical to our

national interest etc. and yet further feeling the need to regulate the

operation of cable television networks in the country so as to bring about

uniformity in their operation, the Cable Television Networks (Regulation)

Act, 1995 was enacted.

6. Section 5 of the said Act prohibits the transmission or re-transmission

through a cable service of any programme unless such programme is in

conformity with the prescribed Programme Code. Section 19 of the Act

provides for prohibition of transmission or re-transmission of any

programme or channel, in public interest, if it is inter alia not in conformity

with the prescribed Programme Code referred to in Section 5. Section 20

empowers the Central Government to, if it thinks it necessary or expedient

so to do in public interest, prohibit the operation of any cable television

network in such areas as it may specify, by notification in the Official

Gazette. It also empowers the Central Government, if it thinks it necessary

or expedient so to do inter alia in the interest of public order, decency or

morality, to by order, regulate or prohibit the transmission or re-

transmission of any channel or programme.

7. The Programme Code referred to in Section 5 of the Act, is contained

in Rule 6 of the Cable Television Networks Rules, 1994 and prohibits

programmes from being carried in the cable service which inter alia offend

good taste or decency, contain anything obscene, denigrate women through

the depiction in any manner of the figure of a woman, her form or body or

any part thereof in such a way as to have the effect of being indecent, or

derogatory to women, or is likely to deprave, corrupt or injure the public

morality or morals, contravene the provisions of the Cinematograph Act,

1952 or are otherwise not suitable for unrestricted public exhibition.

8. With the advent of technology enabling individual homes and other

establishments to, instead of via cable, directly download satellite television

channels, the Ministry of Information and Broadcasting formulated policy

guidelines supra for downlinking of all satellite television channels

downlinked / received / transmitted and re-transmitted in India for public

viewing. The same provide that no person / entity shall downlink a channel,

which has not been registered by the Ministry under the said guidelines.

Accordingly, 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, is required to obtain permission from the Ministry in

accordance with the said guidelines known as the Downlinking Guidelines.

Clause 5 of the said guidelines prescribing basic conditions / obligations,

inter alia provides that the company permitted to downlink registered

channels shall comply inter alia with the Programme Code aforesaid.

Clause 6 of the said Guidelines prescribing offences and penalties inter alia

empowers the Ministry of Information and Broadcasting to impose penalty

inter alia of suspension of the permission / registration granted thereunder

and prohibition of broadcast up to a period of 30 days inter alia in public

interest.

9. Not only so there also exists a Broadcasting Content Complaints

Council (BCCC), a self regulatory body of the television broadcasters.

10. Similarly, The Advertising Standards Council of India to whose Code

for Self-Regulation in Advertising the counsel for the respondent Union of

India has drawn attention, is also a voluntary self regulation council to

control the content of advertisements. The copy of the Advisory dated 21 st

August, 2014 (supra) handed over also mentions the existence of Consumer

Complaints Council (CCC) to deal with the violations inter alia of the

Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 and

mentions that with respect to the violations of the Advertising Code,

complaint can be filed with the said Council. Infact, Annexure I to the said

Advisory is a list of advertisements which were found violating the

Advertising Code; in the said list mention is found of broadcast of

advertisements of skin fairness cream / yantra / black magic/magical curing

of ailments/ vehicle mileage plus/hair growth/slimming/weight loss/anti

addiction etc.

11. It is thus not as if there is no regulatory mechanism in place,

necessitating for this Court to issue a direction for establishment thereof as

is sought in the petition.

12. However when we drew the attention of the petitioner thereto, he in

turn drew attention to a large number of representations/complaints filed by

him with the Union of India and the Prime Minister's Office and with the

GNCTD in this regard and laments that no action was taken thereon.

13. It is for the aforesaid reason that we have not deemed it appropriate to

keep this petition pending. It appears that various representations /

complaints of the petitioner have not reached the appropriate / concerned

regulatory body and all that needs to be done is to direct such regulatory

body to consider the grievances and complaints of the petitioner in

accordance with the procedure and law applicable thereto.

14. We may notice that the permission given by the Ministry of

Information and Broadcasting of the Government of India to various entities

for uplinking / down-linking of signals also is subject to terms and

conditions and one of the terms and conditions is to abide by the Programme

Code and the directions given from time to time. We may further record

that violations of uplinking / downlinking Guidelines are decided by Inter-

Ministerial Council (IMC).

15. Reference in this regard may also be made to Sections 19 and 20 of

the Cable Television Networks (Regulation) Act (supra) which empower the

authorised officers under the said Act to, in public interest, prohibit any

cable operator from transmitting or re-transmitting any programme or

channel if, it is not in conformity with the prescribed Programme Code and

Advertisement Code.

16. Similarly, Section 20 empowers the Central Government to inter alia

in the interest of public order, decency or morality, by order, regulate or

prohibit the transmission or re-transmission of any channel or programme.

Section 6 of the said Act prohibits any person from transmitting or re-

transmitting through a cable service any advertisement unless such

advertisement is in conformity with the prescribed Advertisement Code.

Advertisement Code is prescribed in Rule 7 of the Rules supra and provides

that advertisement carried in the cable service shall be so designed as to

conform to the laws of the country and should not offend morality, decency

and religious susceptibilities of the subscribers. Sub-Rule (2) of Rule 7

prohibits advertisements which contain reference which are likely to lead

the public to infer that the product advertised or any of its ingredients has

some special or miraculous or super-natural property or quality, which is

difficult of being proved; sub-Rule (9) thereof also prohibits advertisement

which violate the Code for self regulation in advertising as adopted by the

Advertising Standards Council of India. The said aSCI Advertising Code

supra also relates to some of the matters of which grievance is made in the

petition.

17. It would thus be apparent from the above that the petitioner is

required to either approach the Ministry of Information and Broadcasting or

the Advertising Standards Council of India or the Broadcasting Content

Complaints Council or the authorised officer under the Cable Television

Networks (Regulation) Act for the redressal of his grievance.

18. Various fora / avenues / regulatory bodies being already in place, the

question of our issuing any direction for establishment thereof or of

prohibiting any programme/advertisement does not arise. It is for the said

appropriate forum to decide the complaint of the petitioner.

19. Before parting with the matter, we may record that as far as the

complaint of the petitioner, of the programmes based on astrology are

concerned, the Legislature / Government having laid down the Programme

Code and the Advertising Code, it is not in the domain of this Court to

prescribe as to what the Code should be. Moreover, as far as astrology is

concerned, astrology / zodiac / prediction / forecast are to be found not only

on the television but also in the print and news media. Astrology is a

subject being taught in the Universities and is not confined to India alone.

In fact the most popular international publication on 'forecast' is of a

foreign author named Linda Goodman. We therefore do not find it

appropriate to also prohibit astrological programmes / advertisements to the

extent they are not in violation of the Programme Code and the Advertising

Code.

20. We have set out hereinabove in detail the various mechanisms for the

guidance of the petitioner. It goes without saying that upon the petitioner

making a grievance / complaint in accordance therewith, we expect the

concerned authority or agency shall consider and deal with the same

expeditiously.

The petition is disposed of.

RAJIV SAHAI ENDLAW, J.

CHIEF JUSTICE DECEMBER 03, 2014 M..