Thursday, October 24, 2013

Airwaves as public property

The reader's editor, A.S Panneerselvan, wrote about the PIL on Radio, which
was published in The Hindu, i.e. 21st October 2013.

Reproduced below inline:

Like any other freedom, freedom of expression too is a product of
relentless struggle. In one of my earlier columns, ?From principle to
practice? (January 28, 2013), I looked at three significant high court
judgments upholding this fundamental right. In this column, let me look at
two important judgments delivered by the Supreme Court of India, and its
latest intervention last week that may change the face of Indian
broadcasting in more ways than one.

In 1994, an apex court bench comprising Justice B.P. Jeevan Reddy and
Justice S.C. Sen gave a landmark judgment that decidedly shut the door on
prior restraint and prepublication censorship of any publication. In the *R.
Rajagopal versus the State of Tamil Nadu* case, the apex court examined
some of the crucial issues relating to freedom of expression and came up
with an observation that ?there is no law empowering the State or its
officials to prohibit, or to impose a prior restraint upon the
press/media.? But it also cautioned that the observations were ?only the
broad principles. They are neither exhaustive nor all-comprehending; indeed
no such enunciation is possible or advisable.?

Some of the issues examined in this case were: ?Whether a citizen of this
country can prevent another person from writing his life story or
biography? Does such unauthorised writing infringe the citizen?s right to
privacy? Whether the freedom of press guaranteed by Article 19(1)(a)
entitles the press to publish such an unauthorised account of a citizen?s
life and activities and if so to what extent and in what circumstances?
What are the remedies open to a citizen of this country in case of
infringement of his right to privacy and further in case such writing
amounts to defamation? Whether the government can maintain an action for
its defamation? Whether the government has any legal authority to impose
prior restraint on the press to prevent publication of material defamatory
of its officials? Whether the public officials, who apprehend that they or
their colleagues may be defamed, can impose prior restraint upon the press
to prevent such publication? Whether the prison officials can prevent the
publication of the life story of a prisoner on the ground that the prisoner
being incarcerated and thus not being in a position to adopt legal remedies
to protect his rights, they are entitled to act on his behalf??

*Airwaves as public property*

In 1995, another bench of the apex court comprising Justices P.B. Sawant,
S. Mohan and B.P. Jeevan Reddy in the *Ministry of Information and
Broadcasting versus Cricket Association of Bengal* case ruled that ?the
airwaves or frequencies are a public property. Their use has to be
controlled and regulated by a public authority in the interests of the
public and to prevent the invasion of their rights. Since the electronic
media involves the use of the airwaves, this factor creates an inbuilt
restriction on its use as in the case of any other public property. The
right to impart and receive information is a species of the right to
freedom of speech and expression guaranteed by Article 19(1)(a) of the
Constitution. A citizen has a fundamental right to use the best of means of
imparting and receiving information and as such to have an access to
telecasting for the purpose.?

The subsequent, partial opening up of the radio sector to private and
community players is a direct result of this verdict. Vinod Pavarala,
UNESCO Chair on Community Media, University of Hyderabad and former
president of the Community Radio Forum (CRF) of India, points out the
present limitation in the Indian community radio scenario: ?news is not
permitted and politics is proscribed under clause 5 (vi) of the Policy
Guidelines for Community Radio. Many CR stations have had to confine
themselves to the developmental agendas of the NGO concerned or the donor
agency. The irony is that while several CR stations have a model of
?community radio reporters,? they are not expected to produce and broadcast
any news.? The only news that is permitted is All India Radio?s bulletin
without any modification whatsoever.

*Airing news*

This serious limitation may not last long if one goes by the open court
observation by the first bench of the apex court, comprising Chief Justice
P. Sathasivam and Justice Ranjan Gogoi. The bench has issued notice to the
Union Government on a Public Interest Litigation seeking permission for
private FM and community radio stations to air news.

Prashant Bhushan appearing for the non-governmental organisation, Common
Cause, argued that like TV channels, private radio stations be allowed to
broadcast news as this medium is far more accessible to people and radio
stations can be set up with relatively smaller investments. In a
significant observation the Chief Justice said: ?You rightly mentioned that
radio is accessible to everybody. There is no problem in case of TV
channels. Only TV channels are allowed to broadcast news. Radio channels
have access to every village, nook and corner. We will examine the issue.
We will impose some conditions?. (before granting permission).?

If all the players in the radio sector ? private FM, campus radio and the
community radio ? are permitted to air news and current affairs, then we
may well witness the next level of information revolution in this country.