Viacom 18 Media Private Ltd. & Anr vs Union Of India
2014 Latest Caselaw 6086 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Date of decision: 24th November, 2014.

+      LPA 374/2013, CMs No.8716/2013 (for stay) & 3187/2014 (of
       respondent for condonation of 132 days delay in filing affidavit).

       VIACOM 18 MEDIA PRIVATE LTD. & ANR . .... Appellants
                     Through: Mr. Sidharth Luthra, Sr. Adv. with
                              Mr. Abhishek Malhotra and Mr.
                              Angad Singh Dugal, Advs.

                                       Versus
       UNION OF INDIA                                  ..... Respondent
                              Through: Mr. Sanjay Jain, ASG with Mr.
                                       Ruchir Mishra, Ms. Aastha Jain and
                                       Mr. Mukesh Kumar Tiwari, Advs.
CORAM :-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.

1. This intra-court appeal impugns the judgment dated 24th May, 2013 of

the learned Single Judge of this Court of dismissal of W.P.(C) No.3402/2013

preferred by the appellant.

2. The writ petition from which this appeal arises was filed impugning the

order dated 17th May, 2013 of the Ministry of Information & Broadcasting,

Government of India, passed in exercise of powers conferred by Section 20(2)

and (3) of the Cable Television Networks (Regulation) Act, 1995 read with

paras 8.1 & 8.2 of the guidelines for Up-linking of Television Channels from

India, prohibiting the transmission or re-transmission of the television channel

'Comedy Central' of the appellant for ten days on any platform throughout

India w.e.f. 00:01 hours on 25th May, 2013 till 00:01 hours on 4th June, 2013.

The writ petition came up before the learned Single Judge on 22 nd May, 2013

and arguments were heard and judgment reserved on 23rd May, 2013. Vide

judgment dated 24th May, 2013 supra the writ petition was dismissed.

Resultantly the order dated 17th May, 2013 came into force on 25th May, 2013

and the transmission / re-transmission of the said channel of the appellant

stopped.

3. This appeal came up first on 27th May, 2013 when it was ordered to be

taken up on 28th May, 2013. On 28th May, 2013, notice of the appeal was issued

and vide ad interim order, on statement of the Executive Vice President of the

appellant that the period of suspension had already been undergone from 25 th

May, 2013 till then and that the programmes 'Stand Up Club' and 'Popcorn'

which had led to the order dated 17th May, 2013 had already been suspended

and on his further undertaking that the said programmes will not be telecast in

future and that if this appeal is dismissed the appellant would undergo the

remaining period of prohibition imposed by the order dated 17th May, 2013, the

operation of the order dated 17th May, 2013 prohibiting transmission and re-

transmission of the channel of the appellant was stayed till further orders.

4. The respondent having had no opportunity to file a reply to the writ

petition, was permitted to file reply to the appeal and to which rejoinder has

been filed. The appellant sought adjournment from time to time. We have heard

the counsels for the parties and have also perused the writ file.

5. The Cable Television Networks (Regulation) Act, 1995 hereinafter called

'the Act' was enacted in the light 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. It was also felt that the 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. It

was therefore considered necessary to regulate the operation of cable television

networks in the country so as to bring about uniformity in their operation.

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 inter alia it is 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. Section 20(3) also empowers the Central

Government, if it considers that any programme of any channel is not in

conformity with the prescribed programme code referred to in Section 5 to

by order, regulate or prohibit the transmission or re-transmission of such

programme. The programme code referred to in Section 5 is contained in

Rule 6 of the Cable Television Networks Rules, 1994 (the Act was preceded

by the Cable Television Networks (Regulation) Ordinance, 1994) and

prohibits programmes from being carried in the cable service which inter

alia offend against 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, contravenes the provisions of

the Cinematograph Act, 1952 or are not suitable for unrestricted public

exhibition.

7. 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 & Broadcasting, Government of India

formulated policy guidelines 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 & 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.

8. The respondent Government on 26th August, 2011 granted permission

/ approval to the appellant for uplinking / downlinking of an entertainment

TV channel subsequently named 'Comedy Central' Channel from India. The

said channel is a 24 hours channel dedicated to English language comedy

content. As per the base conditions / obligations of such permission /

approval, the appellant was bound to follow inter alia the programme code

prescribed in the Rules aforesaid and on failure to comply with the same,

the permission / approval granted to it was liable to be suspended /

cancelled.

9. The respondent Government was of the opinion that the programme

'Stand Up Club' telecast on 26th May, 2012 at 20:52 hours on the channel

Comedy Central of the appellant was not suitable for unrestricted public

exhibition and children as the same depicted women as a commodity of sex

and appeared to deprave, corrupt and injure the public morality and morals.

A notice dated 22nd June, 2012 was issued to the appellant to show cause

within 15 days from receipt thereof as to why action as per the provisions of

'Downlinking Guidelines', the terms and conditions of the permission

granted and the provisions of Section 20 of the Act be not taken against it.

10. Though the appellant submitted a reply to the show cause notice supra

inter alia to the effect that it will in future comply with the programme code

and all the conditions of uplinking / downlinking permission but no

representative of the appellant attended the personal hearing granted before

the Inter-Ministerial Council (IMC) constituted to look into the cases of

violation of programme code; yet another opportunity of hearing was

granted in the meeting of the IMC scheduled on 19 th December, 2012. The

appellant submitted another representation apologizing for the telecast of the

programme aforesaid and describing the episode as unintentional and

assured that they had stopped repeat telecast of the programme and will also

not air other programmes having similar content and requested the

respondent to take a lenient view. It was further stated that most of the

contents of the channel are conceived, created and produced out of India and

that they had also submitted an apology to the Broadcasting Content

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

broadcasters.

11. However contrary to the representations aforesaid, the appellant on 4th

July, 2012 at 7:57 hours telecast another programme titled 'Popcorn' which

also was found by the respondent Government to be vulgar, obscene,

offending good taste and not suitable for unrestricted public exhibition and

children.

12. Another notice dated 10th October, 2012 to show cause was issued to

the appellant and to which also a reply was submitted, not controverting that

the same was in violation of programme code but blaming the telecast on a

operational mishap and unintentional error and again apologizing and

assuring that the creative, content and programming teams had been

sensitized to the programme code.

13. During the personal hearing held, the representatives of the appellant

again apologized.

14. The IMC however vide order dated 17th May, 2013 supra imposed the

punishment aforesaid on the appellant.

15. The challenge by the petitioner in the writ petition from which this

appeal arises, before the learned Single Judge was to the competence of the

IMC to judge the violation of the programme code without consulting the

BCCC which is a broad-based professional body and on the ground that the

penalty imposed was disproportionate to the violation committed.

16. The learned Single Judge dismissed the writ petition, finding /

observing / holding:-

(i) that consultation with BCCC is not a requirement laid down in

the Act; as per Clause 10.2 of the Policy Guidelines for

Uplinking of Television Channels from India dated 5 th

December, 2011, BCCC needs to be consulted only for the

purpose of determining whether the contents of any particular

telecast constitute a violation of the Policy Guidelines or not

and not while deciding the quantum of penalty to be imposed

upon the offending channel;

(ii) that even otherwise the failure of the respondent to consult

BCCC would not vitiate the decision taken, considering that on

a reference by the appellant itself and after giving an

opportunity of hearing to it, the BCCC also was of the view that

the contents of the programme 'Stand Up Club' telecast on 25th

May, 2012 were objectionable; it was not the plea of the

appellant also that the contents of the programme were not

objectionable; the only plea of the appellant was that a genuine

mistake took place in telecasting the unedited version of the

programme;

(iii) that this Court in Star India Private Limited Vs. Union of

India 185 (2011) DLT 519 also has held that absence of

consultation with BCCC would not by itself render the action

illegal;

(iv) that it could also not be said that BCCC had not recommended

any action, as its opinion on the said aspect was not sought by

anybody;

(v) that in the facts of the present case the appellant itself had

admitted that the contents of the programme were in violation

of the programme code;

(vi) that where it is a disputed question whether the programme is in

violation of the programme code, an independent broad based

body as the BCCC should examine the said aspect; but where

the contents are ex facie vulgar and obscene, failure to resort to

such a consultation would not vitiate the penalty, and in

appropriate cases, the Court may itself examine the contents

while considering challenge to the penalty;

(vii) that the Court would not be justified in interfering with the

decision taken by the competent authority unless it is shown

that the penalty imposed is so disproportionate to the violation

committed by the channel as would shock the conscience of the

Court or is a penalty which no reasonable person would impose

for violation of such nature; the contents of the two

programmes were highly vulgar and objectionable and it was

thus difficult to say that the penalty imposed upon the appellant

was wholly disproportionate to the violation or a penalty which

no reasonable person could have awarded;

(viii) that though the penalty imposed of prohibition of transmission

or re-transmission of channel for each of the two violations was

of ten days each but the IMC had further recommended the two

to be served concurrently; and,

(ix) that considering that the penalty could be of prohibition of

telecast up to 30 days for first violation and up to 90 days for

second violation, the penalty imposed upon the petitioner could

not be said to be excessive or unreasonable.

17. The senior counsel for the appellant before us has challenged the

order of the learned Single Judge only on the aspect of proportionality and

has not argued on any of the other aspect. During the hearing, copies of the

orders dated 8th January, 2013, 23rd / 25th April, 2013 and 16th January, 2014

of the IMC imposing the penalty of prohibition of transmission or re-

transmission of one day only on Enter10, Mahuaa Channels and WB TV

channels respectively, were handed over and it was argued that the penalty

imposed on the appellant of prohibition of transmission / re-transmission of

ten days is excessive and too harsh. It was argued that the appellant had

launched / commenced telecast of the said channel only in January, 2012

only and the violations are in the nature of the teething issues and owing to

all check systems for ensuring compliance of programme code being till then

not in force and hence unintentional. It was thus stated that the penalty

imposed on the appellant of ten days be reduced to that of four days already

undergone by the appellant. It was yet further contended that the appellant

has been treated differently from the others aforesaid on whom penalty only

of one day was imposed and it was suggested that in the absence of any

guidelines, the penalty imposed for similar contraventions / violations may

vary hugely, resulting in discrimination.

18. We however during the hearing enquired from the senior counsel for

the appellant whether not, even for similar violations / contraventions the

penalty would vary depending upon the time of the telecast of the offending

programme and the viewership and popularity of the channel. The senior

counsel could not controvert. We then further enquired whether the appellant

has placed before this Court the comparative figures to show the viewership

/ popularity of Enter10, Mahuaa and WB TV Channels on the basis of

penalty imposed on whom, the penalty imposed on the appellant was argued

to be disproportionate. Needless to state that the same were not available;

though the senior counsel sought an opportunity to place the same but the

same was denied. We may notice that though the senior counsel for the

appellant at the close of the hearing also had sought an opportunity to place

the viewership figures of the other channels before this Court but inspite of

our refusing, the counsel for the appellant on the next day after the judgment

had been reserved handed over an affidavit dated 11th November, 2014 in

this regard. However the same having been handed over without permission,

we refuse to take cognizance of the same. Such pleas of discrimination and /

or proportionality cannot be permitted to be taken orally without any

foundation being laid therefor in the pleadings and the appellant cannot be

permitted to successively improve its case, especially in a matter of this

nature.

19. We have ourselves carefully perused the contents of the two

programmes to which objection has been taken and having gone through the

same, are of the opinion that the matter requires no interference. We in fact

hesitate in reproducing the same in this judgment, for the fear of giving

further publicity thereto.

20. The licensing regime hitherto in force in the country which required

entities desirous of setting up any enterprise to obtain prior permission of

the Government and required the Government to before granting such

permission / licence, satisfy itself that all the systems which the said

enterprise required to be in place before commencing operation were in

place, for the sake of avoiding delays in granting such permissions / licenses,

has been replaced by a self regulatory regime where the Government

prescribes the systems which an entity proposing to set up an enterprise in a

particular field is required to have and though not requiring such entities to

obtain prior permission leaves it to them to, if of the view that they have

such systems in place, commence the operations. The onus is more on the

entrepreneurs, under the new self regulatory regime. Merely because the

Government has done away with the system of checks, does not entitle such

entrepreneurs to commence an enterprise in a half baked manner. Thus the

pleas / contentions as raised before us, of the enterprise of the appellant

being at a nascent stage and owing whereto the contraventions / violations

occurred, have no place. This is more so in an enterprise of the nature as the

present one. The appellant is engaged in a business / enterprise which owing

to its mass appeal / base has the potential of influencing the thought,

behavior and conduct of the citizens, especially the future citizens of this

country. A Division Bench of this Court in Court on its own Motion Vs.

State 146 (2008) DLT 429 held that the duty of the Press as the forth pillar

of democracy is immense; it has great power and with it comes the

increasing amount of responsibility. An interesting discussion on the said

aspect is also to be found in the judgment of a Division Bench of this Court

in Indraprastha People Vs. Union of India MANU/DE/0811/2013.

Similarly, in Secretary, Ministry of Information and Broadcasting, Govt.

of India Vs. Cricket Association of Bengal (1995) 2 SCC 161, it was

observed that electronic media is a most powerful media, both because of its

audio visual impact and its widest reach covering the section of society

where print media does not reach and is also more readily accessible to all

including children at home. It was further held that there is an inseparable

interconnection between freedom of speech and stability of society i.e.

stability of a nation-state and that ours is a nascent republic which is yet to

achieve the goal of a stable society and we cannot afford to, in the name of

freedom of speech allow anything to be beamed in every home without

regard to its impact on society.

21. The appellant, in the facts and circumstances aforesaid has clearly not

conducted itself responsibly and has abused the faith reposed in it under the

self-regulatory regime.

22. The contention of the appellant for reduction in the punishment of

being barred from transmission, from that imposed of ten days to that of four

days already undergone, is also meritless. The Supreme Court in Raj

Kapoor Vs. State (1980) 1 SCC 43 held that a certificate by a high powered

Board of Censors with specialised composition and statutory mandate is not

a piece of utter inconsequence; it is relevant material, important in its

impact, though not infallible in its verdict; though the Courts are not barred

from trying the case because the certificate is not conclusive but the same is

to be not brushed aside. It was held that an act of recognition of moral

worthiness by a statutory agency is not opinion evidence but an instance or

transaction where the fact in issue has been asserted, recognised or affirmed.

The principle applies with equal force also to the decision of Inter

Ministerial Council imposing the ban of ten days on the appellant.

23. We are in agreement with the reasoning given by the learned Single

Judge in this regard and do not find any ground to interfere with the

punishment imposed of ban on transmission for ten days. As noticed by the

learned Single Judge also the penalty for the first violation under the Policy

Guidelines dated 5th December, 2011 supra could be for a period upto 30

days and for the second violation of upto a period of 90 days. It is not in

dispute that the appellant has committed two violations. Though the IMC

imposed punishment of ten days for each of the two violations but directed

the same to run concurrently. It is not proper for the Courts to interfere with

the discretion exercised by a body, entitled to do so, in imposing punishment

except when it is arbitrary, irrational, mala fide or against any statutory

provisions. We do not find so in the present case. The Supreme Court in

Gopal Singh Vs. State of Uttarakhand (2013) 7 SCC 545, though dealing

with an offence under Section 324 of the Indian Penal Code, 1860, noticed

that there can neither be a straight jacket formula nor a solvable theory in

mathematical exactitude. Similarly in Rajendra V. Pai Vs. Alex Fernandes

(2002) 4 SCC 212, though in the context of disciplinary proceedings, it was

held that ordinarily the Court does not interfere with the quantum of

punishment imposed by a statutory body. The fact, that the appellant while

still being proceeded against for the first violation and while still apologizing

/ seeking pardon for the same, committed a similar second violation is

clearly indicative of the appellant having not paid heed to the warning given

to it for the first violation, even if unintentional and took the matter of self

regulation very lightly. We are of the view that the punishment meted out is

proportionate to the violations and justly meets the collective cry of the

society. We may also add that the effect of punishment of prohibition of

transmission for ten days has already been diluted by the same being split

into four plus six days.

24. We therefore do not find any merit in this appeal and dismiss the same

with costs of Rs.20,000/- payable to the respondent within four weeks of

today. Though the appellant has already given a statement as recorded in the

order dated 28th May, 2013 that in the event of dismissal of the appeal it

would undergo the penalty imposed of prohibition for the balance period of

six days, we clarify that the said penalty would come into force w.e.f. 00:01

hours of the 26th November, 2014.

RAJIV SAHAI ENDLAW, J.

CHIEF JUSTICE NOVEMBER 24, 2014 'pp'