MINISTER OF STATE FOR IMMIGRATION AND ETHNIC AFFAIRS v. AH HIN TEOH

F.C. No. 95/013

[1995] HCA 20; (1995) 128 ALR 353, (1995) 69 ALJR 423, (1995) EOC 92-696 (extract)[1995]

HCA 20; , (1995) 183 CLR 273

International Law – Immigration

HIGH COURT OF AUSTRALIA

MASON CJ(1), DEANE(1), TOOHEY(2), GAUDRON(3) AND McHUGH(4) JJ

International Law – Treaties – Convention ratified by Australia but not implemented by statute – Status in domestic law – Whether giving rise to legitimate expectations.

Immigration – Application for permanent entry – Applicant – Married man with children in Australia – Policy requirement that applicants be of good character – Applicant convicted and imprisoned before application dealt with – Application refused because of conviction – Convention requiring governmental actions concerning children to give primary consideration to best interests of child – Convention ratified by Australia but not incorporated by statute in Australian domestic law -Whether capable of giving rise to legitimate expectation that application would be dealt with in accordance with Convention – Convention on Rights of Child, Art 3 – Migration Act 1958 (Cth), ss 6(2), 6A(1), 16(1)(c).

HEARING

PERTH, 1994, 24, 25 October, CANBERRA, 1995, 7 April 7:4:1995

ORDER

Appeal dismissed with costs.

DECISION

MASON CJ AND DEANE J This appeal, which is brought by the Minister from a unanimous decision of the Full Federal Court (Black CJ, Lee and Carr JJ) allowing an appeal by the respondent from a decision of French J, raises an important question concerning the relationship between international law and Australian law.

Factual background

2. The respondent, Mr Teoh, a Malaysian citizen, came to Australia on 5 May 1988 and was granted a temporary entry permit. On 9 July he married Jean Helen Lim, an Australian citizen, who had been the de facto spouse of his deceased brother. At the time of the marriage Mrs Teoh had four children, the eldest being the child of her first marriage, the other three being children of her de facto relationship with the respondent’s brother. There are, in addition, three children of the marriage.

3. In October 1988 the respondent applied for and was granted a further temporary entry permit which allowed him to remain in Australia until 5 February 1989. Before that permit had expired the respondent applied for a permanent entry permit, otherwise referred to as a grant of resident status. In November 1990, when his application for resident status was still pending, the respondent was convicted of six counts of being knowingly concerned in the importation of heroin and of three counts of being in possession of heroin. He was sentenced to six years’ imprisonment with a non- parole period of two years and eight months. The sentencing judge accepted that Mrs Teoh’s addiction to heroin played a part in the respondent’s actions.

4. In January 1991, the respondent received a letter informing him that an officer authorized under the Migration Act 1958 (Cth) (“the Act”) had refused his application for the grant of resident status. The application was refused for the following reasons:

“1.1 It is a policy requirement for grant of resident status that applicants be of good character.

1.2 Amongst other points, one of the basis (sic) of assessment is whether the applicant has a criminal record.

1.3 All applicants aged 16 years or over are subject to the character requirement.

In this case (the respondent) cannot meet the character requirement as he has a criminal record. (He) is currently serving 6 years imprisonment with a 2 year 8 month non parole period”.

The reasons given reflected policy instructions issued by the Department to decision-makers, to which we shall refer later.

5. The Act (as it then stood) provided that, upon the expiration of a temporary entry permit, the holder became a prohibited non-citizen unless a further entry permit came into force(1). The respondent was therefore told that he was an “illegal entrant” but that he could apply for a review of the decision refusing his application for resident status.

6. The respondent made such an application under reg.173A of the regulations made under the Act in 1989. His wife supported this application. A number of documents were annexed to the application. Among the documents was a copy of a character reference from the respondent’s former employer, Mr R. Deng. That reference included the following observations:

“Since knowing (the respondent) and his family. I found he is a good father and very responsible family man. Despite his many hardships, he always placed his wife and children before his own interests. He cares for them and provide their needs.”

Also among the documents was a handwritten testimonial from Mrs P.D. Grant, the respondent’s mother-in-law, which referred to the respondent as a concerned father and a great help to his wife who was a drug addict. According to Mrs Grant, the respondent was hardworking, had tried very hard to keep his wife out of trouble and to care for his children, and only wanted what was best for his family. She added that it would be a “great tragedy for the whole family” if he were to be deported, noting that he was the only person who could keep them together. The respondent’s wife also included a letter in support of the application, stressing the need that the family had for the respondent’s continued presence. At that time Mrs Teoh had six children living with her. They were all under ten years old. The youngest child was born later on 20 March 1992.

7. On 25 July 1991, the Immigration Review Panel recommended that the respondent’s application for reconsideration be rejected. The Panel noted that Mrs Teoh, Mrs Grant and Mr Deng had made claims on compassionate grounds that the respondent’s application be approved. The Panel referred specifically to the respondent’s statement that his wife and children would suffer great financial and emotional hardship if he were deported. The Panel went on to make its recommendation for the following reasons:

“All the evidence for this Application has been carefully examined, including the claims of Ms Teoh. It is realised that Ms Teoh and family are facing a very bleak and difficult future and will be deprived of a possible breadwinner as well as a father and husband if resident status is not granted.

However the applicant has committed a very serious crime and failed to meet the character requirements for the granting of Permanent Residency. The Compassionate claims are not considered to be compelling enough for the waiver of policy in view of (Mr Teoh’s) criminal record”.

8. A delegate of the Minister accepted this recommendation on 26 July 1991 and, on 17 February 1992, another delegate of the Minister made an order under s.60 of the Act that the respondent be deported. The respondent applied to the Federal Court to have these two decisions reviewed.

The decision at first instance

9. The respondent challenged the delegate’s decision to refuse reconsideration of the refusal of the grant of resident status on three broad grounds:

(1) the delegate had failed to comply with the rules of procedural fairness because the respondent was not given an opportunity to contradict or otherwise deal with the finding that he was not of good character;

(2) the decision involved an improper exercise of power in that the delegate had failed to take relevant considerations into account; and

(3) the decision involved an improper exercise of power in that the delegate exercised her discretionary power in accordance with a policy without regard to the merits of the respondent’s case.

10. French J rejected the challenge on these grounds. As the application to review the decision to deport was inextricably linked with the challenge to the decision refusing resident status, the respondent’s application for review of the two decisions was dismissed.

The decision on appeal

11. At the hearing of the appeal to the Full Court of the Federal Court, the respondent sought leave to amend the grounds stated in his application for judicial review of the decision refusing resident status by adding the following further particular of procedural unfairness:

“(T)he (Minister’s delegate) failed to make appropriate investigations into the hardship to the (respondent’s) wife and her children were the (respondent) refused resident status.”

The respondent also sought leave to amend his notice of appeal by adding the following additional ground:

“The Court erred in fact and in law in finding that the hardship to the (respondent’s) wife and her children had been taken into relevant consideration.”

The Full Court unanimously allowed both amendments notwithstanding the fact that, as Carr J pointed out, the respondent’s counsel at first instance had expressly abandoned the ground that the Minister’s delegate failed to take into account the hardship to the respondent’s wife and her children were he refused resident status.

12. Black CJ concluded that the Minister’s delegate did not properly consider the effect of the break- up of the family when she made her decision to refuse the grant of resident status to the respondent. Counsel for the Minister having conceded that the effect of the break-up of the family was a matter that the delegate was bound to take into account, her failure to do so involved an error of law.

13. Lee J considered that the Executive’s ratification of the United Nations Convention on the Rights of the Child (“the Convention”) was a statement to the national and international community that the Commonwealth recognized and accepted the principles of the Convention. Article 3.1 of the Convention provides that “(i)n all actions concerning children … the best interests of the child shall be a primary consideration”. Although noting that the Convention had not been incorporated into Australian law, his Honour stated that its ratification provided parents and children, whose interests could be affected by actions of the Commonwealth which concerned children, with a legitimate expectation that such actions would be conducted in a manner which adhered to the relevant principles of the Convention. This meant that, in such a context, the parents and children who might be affected by a relevant decision had a legitimate expectation that the Commonwealth decision- maker would act on the basis that the “best interests” of the children would be treated as “a primary consideration”. His Honour held that the delegate had not exercised her power consistently with that expectation because she failed to initiate appropriate inquiries and obtain appropriate reports as to the future welfare of the children in the event that the respondent were deported. That failure involved an error of law.

14. Carr J’s approach was similar to that adopted by Lee J. Carr J also considered that, although the Convention was not part of Australian municipal law, the children in this case had a legitimate expectation that their father’s application would be treated by the Minister in a manner consistent with its terms.

15. In the result, the Court ordered that the delegate’s decision of 26 July 1991 to refuse the respondent’s application for the grant of resident status be set aside and that the application be referred to the Minister for reconsideration according to law. The Court also ordered that the other delegate’s decision to deport the respondent be stayed until the Minister reconsidered and determined that application.

16. The Minister contends that the Full Court’s decision is wrong on a number of grounds. It is only necessary to outline three of them for the purposes of this appeal:

(1) Lee and Carr JJ erred in holding that Australia’s ratification of the Convention created a legitimate expectation in parents or children that any action or decision by the Commonwealth would be conducted or made in accordance with the principles of the Convention;

(2) even if ratification of the Convention created such an expectation, Lee and Carr JJ erred in holding that, in the circumstances of this case, procedural fairness required the Minister’s delegate to initiate appropriate inquiries and obtain appropriate reports concerning the children; and

(3) Black CJ erred in holding that the Minister’s delegate did not properly consider the break-up of the family when she made her decision to refuse the grant of resident status to the respondent.

The relevant statutory provisions

17. The respondent’s application for a permanent entry permit was governed by the provisions of the Act as it stood before it was amended in 1989, as was the respondent’s application for reconsideration of the refusal of a permanent entry permit. Section 6(2) then provided:

“An officer may, … at the request or with the consent of a non-citizen, grant to the non-citizen an entry permit.”

An entry permit might be temporary or permanent(2). The word “officer” was defined by s.5 of the Act so as to include a person authorized by the Minister to discharge certain functions.

18. In order to qualify for the grant of a permanent entry permit conferring resident status, the respondent was required to satisfy one of the conditions set out in s.6A. So far as it is relevant, that section provided:

“(1) An entry permit shall not be granted to a non-citizen after his entry into Australia unless one or more of the following conditions is fulfilled in respect of him, that is to say –
…
(b) he is the spouse, child or aged parent of an Australian citizen or of the holder of an entry permit;
…
(e) he is the holder of a temporary entry permit which is in force and there are strong compassionate or humanitarian grounds for the grant of an entry permit to him.”

In his application for resident status, the respondent had relied on satisfaction of condition (b) alone even though, at the time of the application, he also clearly satisfied condition (e). It has not, however, been suggested that anything turns upon that for the purposes of the present case since it is common ground that the “strong compassionate or humanitarian grounds” which were required to satisfy condition (e) were a relevant consideration supporting a grant of resident status based on satisfaction of condition (b). In these circumstances, it is unnecessary to consider whether the fact that the respondent’s temporary entry permit expired during the period between the time when his application for resident status was made and the time when it was dealt with would have precluded reliance upon satisfaction of condition (e) as an independent ground. As it was, satisfaction of condition (b) enabled the delegate to grant resident status in the exercise of a statutory discretion to grant or refuse the respondent’s application.

19. It is convenient to refer now to s.16(1)(c) of the Act and to a policy requirement of good character contained in departmental instructions entitled
“Integrated Departmental Instructions Manual, Grant of resident status, Number 17”. Section 16(1)
(c) provided:
“(1) Where … a person who enters or entered Australia is not, or was not, at the time of that entry, an Australian citizen and who –
…
(c) at the time of entry is or was a person of any of the following descriptions, namely: …
(ii) a person who has been convicted of a crime and sentenced to death, to imprisonment for life or to imprisonment for a period of not less than 1 year;
(iii) a person who has been convicted of 2 or more crimes and sentenced to imprisonment for periods aggregating not less than 1 year;
…
that person shall, notwithstanding section 10, be deemed to be a prohibited non-citizen unless he is the holder of an entry permit endorsed with a statement that the person granting that permit recognizes him to be a person referred to in this sub-section.”
Because the respondent sustained his convictions after his entry into Australia, s.16(1)(c) had no direct application.

20. However, par.1.1 of the Departmental Instructions Manual, to which we have referred, stated: “It is a policy requirement for grant of resident status that applicants be of good character.” Paragraph 1.2 specifically indicated that one of the bases of assessment was “whether the applicant has a criminal record”. Paragraph 3.2 stated that applicants who come within s.16(1)(c) do not meet the good character requirement and their applications would normally be refused unless they could show “strong cause why policy should be waived in their case”. Paragraph 3.3 stated:

“Applicants who do not come within s.16(1)(c) of the Act may also fail to meet this good character requirement. The nature, number or recency of the offences or activities concerned and the potential for continuance or recidivism may be such as to warrant refusal on the overall merits of the case.”

21. As understood in the light of the reasons stated by the chairperson, the recommendation of the Immigration Review Panel that the respondent’s application for reconsideration be rejected was based on an acceptance of the Department’s character objections, presumably grounded on pars 1.1, 1.2 and 3.3 of the departmental instructions, and on a conclusion that the serious nature of the respondent’s offences outweighed the compassionate factors on which he relied. This recommendation, as stated above, was accepted by the Minister’s delegate.

The scope of the statutory discretion

22. Apart from the prescription by s.6A that one of the conditions shall be satisfied and the restriction arising from s.16(1)(c), the statutory discretion to grant or refuse resident status is “unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view”, to use the words of Dixon J in Water Conservation and Irrigation Commission (N.S.W.) v. Browning(3). There is no provision in the Act which makes the provisions of the Convention, assuming them to be otherwise relevant, extraneous to a decision- maker’s considerations of an application for resident status and for review of a refusal of such an application. Nor has it been suggested that there is anything in the scope and purpose of the statute which would have that effect. It follows that the Immigration Review Panel and the Minister’s delegate who accepted the recommendation of the Panel were entitled to have regard to the provisions of the Convention so long as they were a legitimate subject-matter for consideration and were relevant to the issues for determination.

The Convention

23. The Convention was ratified by the Commonwealth Executive on 17 December 1990 and it entered into force for Australia on 16 January 1991. These events occurred before the rejection of the respondent’s application for reconsideration of the decision refusing resident status and before the Minister’s delegate made the decision to deport him. On 22 December 1992, after those decisions had been made, the Attorney-General declared the Convention to be an international instrument relating to human rights and freedoms. This declaration was made pursuant to s.47(1) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth).

24. Articles 3 and 9 of the Convention provide as follows:

Article 3

“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.”

Article 9

“1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.
Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.

2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.

3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.

4. Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.”

The status of the Convention in Australian law

25. It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute(4). This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of Parliament, not the Executive(5). So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law. In this case, it is common ground that the provisions of the Convention have not been incorporated in this way. It is not suggested that the declaration made pursuant to s.47(1) of the Human Rights and Equal Opportunity Commission Act has this effect.

26. But the fact that the Convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law. Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia’s obligations under a treaty or international convention to which Australia is a party(6), at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia’s obligations under international law.

27. It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law(7). The form in which this principle has been expressed might be thought to lend support to the view that the proposition enunciated in the preceding paragraph should be stated so as to require the courts to favour a construction, as far as the language of the legislation permits, that is in conformity and not in conflict with Australia’s international obligations. That indeed is how we would regard the proposition as stated in the preceding paragraph. In this context, there are strong reasons for rejecting a narrow conception of ambiguity. If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail. So expressed, the principle is no more than a canon of construction and does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations(8).

28. Apart from influencing the construction of a statute or subordinate legislation, an international convention may play a part in the development by the courts of the common law. The provisions of an international convention to which Australia is a party, especially one which declares universal fundamental rights, may be used by the courts as a legitimate guide in developing the common law (9). But the courts should act in this fashion with due circumspection when the Parliament itself has not seen fit to incorporate the provisions of a convention into our domestic law. Judicial development of the common law must not be seen as a backdoor means of importing an unincorporated convention into Australian law. A cautious approach to the development of the common law by reference to international conventions would be consistent with the approach which the courts have hitherto adopted to the development of the common law by reference to statutory policy and statutory materials(10). Much will depend upon the nature of the relevant provision, the extent to which it has been accepted by the international community, the purpose which it is intended to serve and its relationship to the existing principles of our domestic law.

29. In the present case, however, we are not concerned with the resolution of an ambiguity in a statute. Nor are we concerned with the development of some existing principle of the common law. The critical questions to be resolved are whether the provisions of the Convention are relevant to the exercise of the statutory discretion and, if so, whether Australia’s ratification of the Convention can give rise to a legitimate expectation that the decision-maker will exercise that discretion in conformity with the terms of the Convention. The foregoing discussion of the status of the Convention in Australian law reveals no intrinsic reason for excluding its provisions from consideration by the decision-maker simply because it has not been incorporated into our municipal law.

The relevance of the Convention

30. Lee and Carr JJ evidently considered that Art.3 of the Convention had an application to the exercise of the discretion, though their Honours did not express any cogent reasons for that conclusion. The respondent did not rely on Art.9, no doubt because it does not seem to address decisions to deport or, for that matter, decisions to refuse permanent entry. The crucial question is whether the decision was an “action concerning children”. It is clear enough that the decision was an “action” in the relevant sense of that term, but was the decision an action “concerning children”? The ordinary meaning of “concerning” is “regarding, touching, in reference or relation to; about”(11). The appellant argues that the decision, though it affects the children, does not touch or relate to them. That, in our view, is an unduly narrow reading of the provision, particularly when regard is had to the grounds advanced in support of the application and the reasons given for its rejection, namely that the respondent’s bad character outweighed the compassionate considerations arising from the effect that separation would have on the family unit, notably the young children. A broad reading and application of the provisions in Art.3, one which gives to the word “concerning” a wide-ranging application, is more likely to achieve the objects of the Convention.

31. One other aspect of Art.3 merits attention. The concluding words of Art.3.1 are “the best interests of the child shall be a primary consideration” (our emphasis). The article is careful to avoid putting the best interests of the child as the primary consideration; it does no more than give those interests first importance along with such other considerations as may, in the circumstances of a given case, require equal, but not paramount, weight. The impact of Art.3.1 in the present case is a matter to be dealt with later in these reasons.

The Full Court’s use of the Convention as a foundation for a legitimate expectation and the creation of an obligation to initiate inquiries and reports in conjunction with procedural fairness

32. What is significant about the reasoning of Lee and Carr JJ is that, having used the Convention as a foundation for generating an expectation that its provisions would be implemented, their Honours held that, in the light of the Convention, procedural fairness required the initiation of appropriate inquiries and the obtaining of appropriate reports as to the future welfare of the children in the event that the respondent were deported. In taking this approach, Lee and Carr JJ acted in accordance with views expressed by some judges of the Federal Court in earlier cases. In Videto v. Minister for Immigration and Ethnic Affairs(12), Toohey J, after observing that “(a)s a broad proposition, I do not think that the Act imposes an obligation on a decision-maker to initiate inquiries”, went on to indicate that in some situations such an obligation might arise. In Prasad v. Minister for Immigration and Ethnic Affairs(13), Wilcox J, with reference to s.5(2)(g) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), said(14):

“The most restrictive view is that para (g) applies only to a case in which the court is able to hold that, upon the material actually or constructively before the decision-maker, the decision was unreasonable. At the opposite extreme it is arguable that the question is whether, upon the evidence before the court as to the facts at the date of decision, and whether or not all of those facts were known to, or reasonably ascertainable by, the decision-maker, his decision, objectively considered, was unreasonable. An intermediate position is that the court is entitled to consider those facts which were known to the decision-maker, actually or constructively, together only with such additional facts as the decision-maker would have learned but for any unreasonable conduct by him.”

His Honour went on to express a tentative preference for the intermediate position, based on the view that under s.5(1)(e) and s.5(2)(g) the court is concerned with the manner of exercise of the power. Just as a power is exercised in an improper manner if it is, upon the material before the decision-maker, a decision to which no reasonable person could come, so it is exercised in an improper manner if the decision-maker makes his or her decision in a manner so devoid of plausible justification that no reasonable person could have taken that course.

33. Accepting the correctness of this approach in an appropriate case, it does not seem to us that the present case was argued on the ground of s.5(2)(g) or on the basis of “Wednesbury” unreasonableness. And we do not see how the suggested failure to initiate inquiries can be supported on the footing that there was some departure from the common law standards of natural justice or procedural fairness. Nothing in the two cases to which we have referred, or in Luu v. Renevier(15) or in Lek v. Minister for Immigration, Local Government and Ethnic Affairs(16), the other cases mentioned by Lee J, supports that view. Another difficulty with the approach taken by Lee and Carr JJ is that the requirement that the Minister’s delegate initiate inquiries and obtain reports as to the future welfare of the children appears to stem from an assumption that the Minister’s delegate was bound to exercise the statutory discretion in conformity with the Convention as if its provisions formed part of our municipal law. That assumption appears to have arisen from the finding that ratification of the Convention generated a legitimate expectation that its provisions would be applied.

34. Junior counsel for the appellant contended that a convention ratified by Australia but not incorporated into our law could never give rise to a legitimate expectation. No persuasive reason was offered to support this far-reaching proposition. The fact that the provisions of the Convention do not form part of our law are a less than compelling reason – legitimate expectations are not equated to rules or principles of law. Moreover, ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act(17), particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention(18) and treat the best interests of the children as “a primary consideration”. It is not necessary that a person seeking to set up such a legitimate expectation should be aware of the Convention or should personally entertain the expectation; it is enough that the expectation is reasonable in the sense that there are adequate materials to support it.

35. But, in the present case, who is entitled to claim that the expectation was legitimate? Lee J held that “parents and children” affected could do so, whereas Carr J held that only the children could make such a claim. Although it would be preferable for the children to make the claim directly, we can see no objection to a parent or guardian making the claim on behalf of a child. It seems that the present case has been conducted on the footing that the respondent, with the mother’s support, has been asserting the children’s claim.

36. The existence of a legitimate expectation that a decision-maker will act in a particular way does not necessarily compel him or her to act in that way. That is the difference between a legitimate expectation and a binding rule of law. To regard a legitimate expectation as requiring the decision- maker to act in a particular way is tantamount to treating it as a rule of law. It incorporates the provisions of the unincorporated convention into our municipal law by the back door. And that, as we have already said, is what Lee and Carr JJ seem to have done because the obligation to initiate inquiries and reports appears to stem from a view that the Minister’s delegate was bound to apply Art.3.1.

37. But, if a decision-maker proposes to make a decision inconsistent with a legitimate expectation, procedural fairness requires that the persons affected should be given notice and an adequate opportunity of presenting a case against the taking of such a course. So, here, if the delegate proposed to give a decision which did not accord with the principle that the best interests of the children were to be a primary consideration, procedural fairness called for the delegate to take the steps just indicated.

Did the Minister’s delegate comply with the Convention?

38. The question which then arises is whether the delegate made her decision without treating the best interests of the child as a primary consideration. There is nothing to indicate that the Panel or the Minister’s delegate had regard to the terms of the Convention. That would not matter if it appears from the delegate’s acceptance of the Panel’s recommendation that the principle enshrined in Art.3.1 was applied. If that were the case, the legitimate expectation was fulfilled and no case of procedural unfairness could arise.

39. It can be said that the delegate carried out a balancing exercise in which she considered the plight of Mrs Teoh and the children and recognized that they would face a “very difficult and bleak future” if the respondent were deported. On the other hand, she considered that the respondent had been convicted of very serious offences and this factor outweighed the “compassionate claims”. However, it does not seem to us that the Panel or the delegate regarded the best interests of the children as a primary consideration. The last sentence in the recommendation of the Panel reveals that, in conformity with the departmental instructions, it was treating the good character requirement as the primary consideration. The Panel said:

“The Compassionate claims are not considered to be compelling enough for the waiver of policy in view of Mr Teoh’s criminal record”. (emphasis added)
The language of that sentence treats the policy requirement as paramount unless it can be displaced by other considerations. There is no indication that the best interests of the children are to be treated as a primary consideration. A decision-maker with an eye to the principle enshrined in the Convention would be looking to the best interests of the children as a primary consideration, asking whether the force of any other consideration outweighed it. The decision necessarily reflected the difference between the principle and the instruction.

40. That view entails the conclusion that there was a want of procedural fairness. It may also entail, though this was not argued, a failure to apply a relevant principle in that the principle enshrined in Art.3.1 may possibly have a counterpart in the common law as it applies to cases where the welfare of a child is a matter relevant to the determination to be made.

41. In other respects, we do not consider that there was any failure to take relevant matters into account. It cannot be said that the delegate either failed to turn her mind to the hardship the family would face or failed to have regard to the consequences of the break-up of the family unit. She had a considerable amount of detailed information about the respondent’s wife and children before her. As Carr J noted, her assessment of their plight was very gloomy indeed.

Conclusion

42. In the result the appeal should be dismissed though for reasons which differ from those given by the Full Court of the Federal Court. The appellant should pay the costs of the respondent.

TOOHEY J These proceedings began as an application by the present respondent against the present appellant under the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”). Two decisions were sought to be reviewed:

“1. A decision made the 26th July 1991 by the Respondent’s delegate Christine Rushworth to refuse the grant of resident status to the Applicant pursuant to Section 6A(1) (as it was) of the Migration Act 1958;

2. The decision made the 17th February 1992 by the Respondent’s delegate Graham Alexander Broome to order the deportation of the Applicant pursuant to Section 60 of the Migration Act 1958.”

2. French J dismissed the application. The Full Court (Black CJ, Lee and Carr JJ) allowed an appeal, set aside the decision of the delegate made 26 July 1991, referred the application for a grant of resident status to the appellant “for reconsideration according to law” and stayed the decision made 17 February 1992 to order deportation until the appellant had “reconsidered and determined the said application according to law”(19). The Minister appeals from the judgment of the Full Court.

The background

3. What follows is largely taken from the judgment of French J.

4. The respondent is a Malaysian citizen who arrived in Australia on 5 May 1988 as a visitor. He was granted a temporary entry permit, valid until 5 November 1988. On 9 July 1988 the respondent married Helen Jean Lim, an Australian citizen. She had four children. The eldest was a child of an earlier marriage. The other three were children of her de facto relationship with the respondent’s brother who, at the time of the marriage of the respondent and Mrs Lim, was deceased. Thereafter the respondent obtained an extension of his entry permit until 5 February 1989. On 5 January 1989 a child was born to the respondent and his wife and, later, two other children.

5. On 3 February 1989 the respondent lodged an application with the Department of Immigration and Ethnic Affairs (“the Department”) for a grant of resident status. The application was supported by character references and included a bail recognizance for the respondent’s appearance at the Central Law Courts in Perth on charges of dangerous driving and driving without a motor driver’s licence. The respondent was convicted of driving without a licence and was fined $200.

6. On 16 November 1989, while the application for resident status was pending, the respondent was arrested and charged with a number of offences relating to the importation and possession of heroin. He had been involved in the sending of heroin from Malaysia to Australia over a period of about 4 months from August 1989. He was convicted on 9 counts and, overall, he received a sentence of 6 years imprisonment, with a non-parole period of 2 years and 8 months. The respondent was sentenced on 30 November 1990. At about this time Mrs Teoh pleaded guilty to charges relating to heroin and was given a suspended sentence of 18 months. She had a serious drug addiction.

7. On 2 January 1991 the Department wrote to the respondent to tell him that his application for a grant of resident status had been refused. As his entry permit had expired, he was therefore an illegal entrant. The letter contained reasons for decision which pointed to a policy requirement for the grant of resident status that “applicants be of good character” and said that the respondent could not meet this requirement because of his criminal record.

8. On 29 and 30 January 1991 the respondent and his wife completed an application for reconsideration of his application for resident status by the Immigration Review Panel (“the Panel”). Again, character references were included. In one of these mention was made of the drug addiction of the respondent’s wife and she described in a letter her hardships and the need for the respondent’s continued presence.

9. On 25 July 1991 the Panel recommended that the application for reconsideration of the grant of resident status be rejected. Because of the significance the reasons for the recommendation assumed in the proceedings that followed, it is necessary to quote certain passages(20):

“Mrs Teoh, the applicant’s sponsor and a former employer have made claims on compassionate grounds for the application for reconsideration to be approved. Mrs Teoh states that she and the five children will suffer great financial and emotional hardship if the applicant is deported. Mrs Teoh is receiving community support during her husband’s imprisonment and will be dependent on social services if he is forced to leave Australia.

All the evidence for this application has been carefully examined, including the claims of Ms Teoh. It is realised that Ms Teoh and family are facing a very bleak and difficult future and will be deprived of a possible breadwinner as well as a father and husband if resident status is not granted. However the applicant has committed a very serious crime and failed to meet the character requirements for the grant of permanent residency. The compassionate claims are not considered to be compelling enough for the waiver of policy in view of Mr Teoh’s criminal record (and) it is recommended that this application is rejected.”

10. This recommendation was endorsed as accepted by Christine Rushworth, a delegate of the appellant, on 26 July 1991. Ms Rushworth’s decision is the first of the two decisions challenged under the ADJR Act. Following the decision of 26 July 1991 there were communications and approaches made by the respondent to the appellant and various bodies; it is unnecessary to detail them.

The proceedings in the Federal Court

11. The application under the ADJR Act sets out a number of grounds. In essence they are that there was a breach of the rules of natural justice, an improper exercise of power in failing to take into account relevant considerations and an improper exercise of power in exercising a discretionary power in accordance with a policy without regard to the merits of the case. French J held that the respondent failed to make good any of these grounds. The Full Court upheld an appeal against dismissal of the application. The members of the Full Court did not all take the same approach and, as the appellant complains of the approach each took, it will be necessary to say something about each judgment. But it should be said now that the role accorded by two of their Honours to Australia’s ratification of the United Nations Convention on the Rights of the Child (“the Convention”) was at the forefront of the appellant’s attack on the decision of the Full Court.

The Convention

12. The provisions of the Convention which featured most prominently before the Full Court were as follows: “Article 31. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

…

States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.”

13. The Convention was ratified by Australia on 17 December 1990 and entered into force for Australia on 16 January 1991(21). By an instrument of declaration made 22 December 1992 the Attorney-General of the Commonwealth declared the Convention to be an international instrument relating to human rights and freedoms for the purpose of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”)(22). The decisions with which this appeal is concerned were made after Australia ratified the Convention but before the instrument of declaration.

The judgments of the Full Court

14. Black CJ approached the matter in light of the appellant’s concession “that in a case such as the present the breaking up of a family unit is a consideration of major significance and one which the decision-maker was relevantly bound to take into account”(23). The point at issue for his Honour was what was required of the decision-maker in order to give effect to this requirement. This, he said, involved not a question of the weight to be given to this aspect, but whether the decision-maker had given proper consideration to it. His Honour held that, in the circumstances of the case, proper consideration required that further inquiry be made as to the implications for the respondent’s family if he were deported.

15. Black CJ referred only briefly to the Convention. In his opinion it formed part of the general background against which decisions affecting children are made. While it was not part of Australian domestic law, it reflected “the standards to which Australia is seen by the international community to aspire as a mature and civilised nation”(24). His Honour continued:

“Those standards emphasise that special care should be taken when decisions are made that may profoundly affect the lives of young children by parting them from a parent and exposing their family to the risk of disintegration”.

16. By contrast, Lee J placed emphasis on the Convention. His approach was that it was unnecessary to determine to what extent the common law has been affected by ratification of the Convention. The question, his Honour said(25), is “whether the exercise of decision-making powers of an administrative kind import cognisance of the provisions of the Convention by reason of the executive’s ratification of the Convention”. His Honour’s approach is encapsulated in the following paragraph(26):

” In my opinion ratification of the Convention by the executive was a statement to the national and international community that the Commonwealth recognized and accepted the principles of the Convention. That statement provided parents and children, whose interests could be affected by actions of the Commonwealth which concerned children, with a legitimate expectation that such actions would be conducted in a manner which adhered to the relevant principles of the Convention.” It followed, in his Honour’s view(27), that “persons exercising delegated administrative powers to make decisions which concerned children were expected to apply the broad principles of the Convention in so far as it was consonant with the national interest and not contrary to statutory provisions to do so”.

17. Applying this approach, Lee J concluded that the decision to refuse an entry permit to the respondent failed to give effect to a legitimate expectation on the part of the parents and children that the principles of the Convention required the best interests of the children to be a primary consideration. There was a legitimate expectation that “appropriate inquiries” would be made and “appropriate reports” would be obtained as to the future welfare of the children in the event that the respondent was deported(28). This was not done.

18. In light of the material before the Court, Carr J held(29) that it was apparent that the decision- maker “specifically considered the plight of Mrs Teoh and her children were the (respondent) to be deported”. The decision-maker had extended procedural fairness and had given proper consideration to the effect of a deportation order on the family. However, his Honour allowed the appeal on the basis that the Convention forms part of the context in which Australian decision-makers have to determine how to carry out their duty to act fairly. Although it was not part of municipal law, the children had “a legitimate expectation that their father’s application should be treated by the minister in a manner consistent with the Convention”(30). While the decision-maker worked on the assumption that deportation was going to make the future bleak for the children and their mother, it is possible that the initiation of appropriate inquiries and the obtaining of appropriate reports would have revealed the children’s situation to be far worse, and she may have come to a different conclusion(31).

19. The appellant criticised the approach taken by each of the members of the Full Court.

The role of the Convention

20. It being common ground that the Convention is not part of Australian municipal law, what role should it have played in the decisions which have given rise to this appeal? In posing the question in this way, there is an underlying assumption that if the Convention were part of municipal law Arts 3 and 5 would indeed have an impact on the decisions that were made.

21. The appellant said that it was axiomatic that treaties (other than treaties terminating a state of war) do not impose obligations on individuals or invest individuals with additional rights or otherwise affect the rights of individuals under Australian law except in so far as the treaty is effectuated by statute. There is an abundance of authority to this effect(32).

22. But it does not follow that the Convention has no role in the present case. It is important to see the way in which the respondent relied upon the Convention. It played no part in the hearing before French J. It is not mentioned in the notice of appeal to the Full Court. It seems to have surfaced during the hearing of the appeal to the Full Court and was relied upon by the respondent as an aspect of natural justice, in particular as giving rise to a legitimate expectation that the Panel would act consistently with the Convention and, in particular, not act in a manner inconsistent with Australia’s obligations under the Convention without giving the respondent an opportunity to be heard. Coupled with this expectation was an obligation to provide procedural fairness to the respondent, an obligation which required the decision- maker to obtain further information about the respondent’s family before making a decision.

23. If the matter is approached in terms of legitimate expectation, it is no answer for the appellant to argue that the Convention does not give rise to individual rights and obligations in municipal law. The question rather is whether Australia’s ratification of the Convention results in an expectation that those making administrative decisions under the aegis of the executive government of the Commonwealth will act in accordance with the Convention wherever it is relevant to the decision to be made.

24. In the appellant’s submission the Convention had no bearing on and was irrelevant to the rights of the respondent and the obligations of the appellant. Ratification did not amount to adoption or incorporation of the Convention in the municipal law of Australia. Declaration for the purposes of the HREOC Act did no more than identify an international instrument as a guide to the Human Rights and Equal Opportunity Commission in fulfilling its functions of inquiring into and reporting on any act or practice that may be inconsistent with or contrary to human rights declared in the instrument. The appellant drew attention to the fact that the Convention receives no mention in the Migration Act 1958 (Cth). By way of contrast, s.6A(1)(c) of that Act (now repealed) referred specifically to the 1951 Geneva Convention relating to the Status of Refugees and the 1967 New York Protocol relating to the Status of Refugees.

25. Concepts such as natural justice, procedural fairness and legitimate expectation are sometimes applied as if they were labels, somehow determining the outcome of a particular matter. But they have to be seen for what they are, in their particular context. It is one thing to say that natural justice demanded that the respondent be given every opportunity to present his case; certainly natural justice demanded that much. It is another thing to say that procedural fairness dictated that no decision adverse to his application be made without pursuing further the implications of deportation for his family. It is another thing again to say that the respondent had a legitimate expectation that the decision-maker would act in accordance with the Convention.

26. It was not part of the respondent’s case that he was denied an opportunity to present the case in support of his application for resident status. The Department gave him the opportunity to provide whatever material he wished in support of his original application and his application for reconsideration. I shall defer the question of whether the delegate should have made further inquiries until I have dealt with the matter of the Convention and legitimate expectation. In doing this I recognise that legitimate expectation is often treated as an aspect of procedural fairness, though generally in the context of an expectation that a decision-maker should afford a person the opportunity to be heard on a particular matter(33). As has been observed(34): “The two broad categories into which the content of a legitimate expectation can be divided are those related to a benefit and those expressly directed to a hearing.” In the present case the respondent contends for an expectation that the delegate would deal with his application in light of the criteria to be found in the Convention, particularly the principle that “the best interests of the child shall be a primary consideration”. Accordingly, it was submitted, procedural fairness required that if the delegate proposed to act inconsistently with Australia’s obligations under Arts 3 and 5 of the Convention, she should first have afforded the respondent the opportunity of persuading her that she should act consistently with its terms.

27. In Reg. v. Home Secretary; Ex parte Brind(35) the House of Lords rejected the broad proposition that the Secretary of State should exercise a statutory discretion in accordance with the terms of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which was not part of English domestic law. That decision was considered by the New Zealand Court of Appeal in Tavita v. Minister of Immigration(36) where a deportee argued that those concerned with ordering his deportation were bound to take into account the Convention and the International Covenant on Civil and Political Rights, both of which had been ratified by New Zealand. In the end the Court did not have to determine the point. But it said of the contrary proposition(37):

” That is an unattractive argument, apparently implying that New Zealand’s adherence to the international instruments has been at least partly window-dressing … there must at least be hesitation about accepting it.”

28. In Minister for Foreign Affairs and Trade v. Magno(38) Gummow J essayed an analysis of the relationship between an instrument embodying an international obligation of Australia and a municipal statute dealing with that subject matter. His Honour looked at various aspects of that relationship, concluding that(39):

“difficult questions of administrative law and of judicial review arise where, whilst the international obligation … is not in terms imported into municipal law and the municipal law is not ambiguous, nevertheless, upon the proper construction of the municipal law, regard may be had by a decision maker exercising a discretion under that law to the international agreement or obligation”.

In In the Marriage of Murray and Tam(40) Nicholson CJ and Fogarty J referred to Gummow J’s analysis. The Family Court of Australia was concerned with an appeal from orders made pursuant to the Family Law (Child Abduction Convention) Regulations which in turn derived from the Hague Convention which Australia had ratified. Their Honours noted what Nicholson CJ had said earlier in his dissenting judgment in Re Marion(41) in relation to the Declaration on the Rights of Mentally Retarded Persons, incorporated as Sched.4 to the HREOC Act, namely, that:

“it (is) strongly arguable that the existence of the human rights set out in the relevant instrument … have been recognised by the parliament as a source of Australian domestic law by reason of this legislation”.

Whether this is so is a matter which does not arise in the present case.

29. Returning to what was said in Tavita, certainly a submission by a decision-maker that no regard at all need be paid to Australia’s acceptance of international obligations by virtue of ratification of a convention is unattractive. What is the next step? Ratification of itself does not make the obligations enforceable in the courts; legislation, not executive act, is required. But the assumption of such an obligation may give rise to legitimate expectations in the minds of those who are affected by administrative decisions on which the obligation has some bearing. It is not necessary for a person in the position of the respondent to show that he was aware of the ratification of the Convention; legitimate expectation in this context does not depend upon the knowledge and state of mind of the individual concerned(42). The matter is to be assessed objectively, in terms of what expectation might reasonably be engendered by any undertaking that the authority in question has given, whether itself or, as in the present case, by the government of which it is a part(43). A subjective test is particularly inappropriate when the legitimate expectation is said to derive from something as general as the ratification of the Convention. For, by ratifying the Convention Australia has given a solemn undertaking to the world at large that it will: “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies” make “the best interests of the child a primary consideration”.

30. The appellant complained that the proliferation of conventions which Australia had ratified would impose an impossible task on decision-makers if they were to be the basis for legitimate expectations. But particular conventions will generally have an impact on particular decision-makers and often no great practical difficulties will arise in giving effect to the principles which they acknowledge. In any event it is not that decision-makers must give effect to the precept that “the best interests of the child shall be a primary consideration”(44). There may be other interests carrying equal weight. Rather, a decision-maker who does not intend to treat the best interests of a child as a primary consideration must give the person affected by the decision an opportunity to argue that the decision-maker should do so.

31. The touchstone in Art.3 is “actions concerning children”. The scope of the provision can be gauged if the word “concerning” is given its ordinary meaning of “relating to; regarding; about”(45) or “regarding, touching, in reference or relation to; about”(46). The refusal of an application for resident status to a parent of dependent children living in Australia, with the direct consequence of deportation for the parent and the breaking up of the family, is an action concerning children.

32. It follows that while Australia’s ratification of the Convention does not go so far as to incorporate it into domestic law, it does have consequences for agencies of the executive government of the Commonwealth. It results in an expectation that those making administrative decisions in actions concerning children will take into account as a primary consideration the best interests of the children and that, if they intend not to do so, they will give the persons affected an opportunity to argue against such a course. It may be said that such a view of ratification will have undue consequences for decision-makers. But it is important to bear in mind that we are not concerned with enforceable obligations, but with legitimate expectations, and that there can be no legitimate expectation if the actions of the legislature or the executive are inconsistent with such an expectation.

33. It was argued that proper consideration of the respondent’s application necessitated further inquiries by the delegate. Indeed, a failure to make such inquiries underlies the judgments of Lee J and Carr J. Generally speaking, it is not the decision-maker’s duty to initiate inquiries(47). But in endorsing the Panel’s recommendation, the delegate must be taken to have accepted that “Ms Teoh and family are facing a very bleak and difficult future”. Before deciding that these considerations did not warrant “the waiver of policy in view of Mr Teoh’s criminal record”, inquiries could have been made at least of Parkerville Children’s Home which had the children in its care and the Department of Community Welfare which had an ongoing involvement with them. The point is not that the delegate was obliged by the Convention to do so but that, had she done so, she might have been in a better position to meet the legitimate expectation to which the Convention gave rise. It is apparent that the delegate did not approach the matter on the footing that the interests of the children were a primary consideration. Instead, she appears to have treated the policy requirement that applicants for the grant of resident status be of good character as the primary consideration. It need hardly be said that the decision-maker might treat the best interests of the children as a primary consideration yet, in all the circumstances, refuse the application for resident status.

Conclusion

34. Before allowing the scales to come down against the respondent by reason of his criminal record, some more detailed assessment of the position of his family could have been undertaken. However, I would dismiss the appeal, not by reason of any failure by the delegate to initiate inquiries and obtain reports, but rather because she did not meet the respondent’s legitimate expectation that she would give the best interests of the children the consideration required by the Convention or inform the respondent of her intention not to do so in order that he might argue against that course.

35. Accordingly, I would dismiss the appeal.

GAUDRON J The facts, the issues and the relevant legislative provisions are set out in the judgments of Mason CJ and Deane J and of Toohey J. It is necessary only to emphasize the consequence to the seven young children who constituted Mr Teoh’s immediate family (“the children”) of a decision refusing or confirming the refusal of his application for resident status. In that event, Mr Teoh would be required to leave the country and the children would be placed in a position where they grew up either fatherless or in another country, denied an upbringing in the country of which they are citizens.

2. As appears from the judgment of Mason CJ and Deane J, the case was argued in this Court primarily by reference to Art.3.1 of the United Nations Convention on the Rights of the Child (“the Convention”) which provides that “(i)n all actions concerning children … the best interests of the child shall be a primary consideration”. It was argued for the appellant that, although his delegate was bound to have regard to the interests of the children, she was neither bound to proceed on the basis that their best interests were a primary consideration nor obliged as a matter of procedural fairness to give Mr Teoh an opportunity to persuade her of that course if she were minded to proceed on some other basis. In particular, it was argued that the Convention did not give rise to an obligation on the part of the delegate to act in accordance with its terms nor a legitimate expectation that she would act in that way. The argument emphasized that the Convention formed no part of municipal law at the time the decisions were made.

3. I agree with Mason CJ and Deane J as to the status of the Convention in Australian law. However, I consider that the Convention is only of subsidiary significance in this case. What is significant is the status of the children as Australian citizens. Citizenship involves more than obligations on the part of the individual to the community constituting the body politic of which he or she is a member. It involves obligations on the part of the body politic to the individual, especially if the individual is in a position of vulnerability. And there are particular obligations to the child citizen in need of protection. So much was recognized as the duty of kings(48), which gave rise to the parens patriae jurisdiction of the courts. No less is required of the government and the courts of a civilized democratic society.

4. In my view, it is arguable that citizenship carries with it a common law right on the part of children and their parents to have a child’s best interests taken into account, at least as a primary consideration, in all discretionary decisions by governments and government agencies which directly affect that child’s individual welfare, particularly decisions which affect children as dramatically and as fundamentally as those involved in this case. And it may be that, if there is a right of that kind, a decision-maker is required, at least in some circumstances, to initiate appropriate inquiries, as Carr and Lee JJ held should have happened in this case. However, it was not argued that there is any such right and, thus, the case falls to be decided by reference to the requirements of natural justice.

5. Quite apart from the Convention or its ratification, any reasonable person who considered the matter would, in my view, assume that the best interests of the child would be a primary consideration in all administrative decisions which directly affect children as individuals and which have consequences for their future welfare. Further, they would assume or expect that the interests of the child would be taken into account in that way as a matter of course and without any need for the issue to be raised with the decision-maker. They would make that assumption or have that expectation because of the special vulnerability of children, particularly where the break-up of the family unit is, or may be, involved, and because of their expectation that a civilized society would be alert to its responsibilities to children who are, or may be, in need of protection.

6. The significance of the Convention, in my view, is that it gives expression to a fundamental human right which is taken for granted by Australian society, in the sense that it is valued and respected here as in other civilized countries. And if there were any doubt whether that were so, ratification would tend to confirm the significance of the right within our society. Given that the Convention gives expression to an important right valued by the Australian community, it is reasonable to speak of an expectation that the Convention would be given effect. However, that may not be so in the case of a treaty or convention that is not in harmony with community values and expectations.

7. There is a want of procedural fairness if there is no opportunity to be heard on matters in issue. And there is no opportunity to be heard if the person concerned neither knows nor is in a position to anticipate what the issues are. That is also the case if it is assumed that a particular matter is not in issue and the assumption is reasonable in the circumstances. In my view and for the reasons already given, it is reasonable to assume that, in a case such as the present, the best interests of the children would be taken into account as a primary consideration and as a matter of course. That being so, procedural fairness required that, if the delegate were considering proceeding on some other basis, she should inform Mr Teoh in that regard and give him an opportunity to persuade her otherwise. It did not, however, require her to initiate inquiries and obtain reports about the future welfare of the children and, in this respect, I agree with the judgment of Mason CJ and Deane J.

8. I also agree with Mason CJ and Deane J, for the reasons that their Honours give, that the delegate did not proceed on the basis that she was to take the interests of the children into account as a primary consideration. There was, thus, a want of procedural fairness. The appeal should be dismissed.

McHUGH J The principal question in this appeal from an order of the Full Court of the Federal Court is whether Australia’s ratification of the Convention on the Rights of the Child gave rise to a legitimate expectation on the part of the respondent or his children that a decision made under the Migration Act 1958 (Cth) concerning the grant of resident status to him would be made in accordance with Art.3 of the Convention. That Article requires that, in “all actions” concerning children, their “best interests” shall be a primary consideration.

2. If the principal question is answered in the negative, a further question arises as to whether, in the circumstances of this case, the decision-maker was under an obligation to make further inquiries about the future of the children if the respondent was refused resident status.

3. In my opinion, no legitimate expectation arose in this case because:

(1) the doctrine of legitimate expectations is concerned with procedural fairness and imposes no obligation on a decision-maker to give substantive protection to any right, benefit, privilege or matter that is the subject of a legitimate expectation;

(2) the doctrine of legitimate expectations does not require a decision-maker to inform a person affected by a decision that he or she will not apply a rule when the decision-maker is not bound and has given no undertaking to apply that rule;

(3) the ratification of the Convention did not give rise to any legitimate expectation that an application for resident status would be decided in accordance with Art.3.

4. Accordingly, the appeal should be allowed because the judgment under appeal held that the respondent had a legitimate expectation that Art.3 would be applied.

5. In addition, the appeal should be allowed because the decision-maker did regard the best interests of the children as a primary consideration in determining the application for resident status and the circumstances did not give rise to any duty to make further inquiries about the welfare of the children.

The Convention on the Rights of the Child

6. The instrument ratifying the Convention on the Rights of the Child was deposited for Australia on 17 December 1990. The Convention entered into force generally on 2 September 1990 and for Australia on 16 January 1991(49). Article 3 provides:

“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.”

7. The implementation of the Convention is dealt with in Pt II of the Convention(50). Article 43 establishes a Committee on the Rights of the Child made up of “ten experts of high moral standing and recognized competence” in the field covered by the Convention. Article 44 provides that parties undertake to submit to the Committee, through the Secretary-General of the United Nations, reports on the measures they have adopted to give effect to the rights recognised in the Convention and any difficulties “affecting the degree of fulfilment of the obligations” under the Convention. This must be done within two years of the entry into force of the Convention and thereafter every five years.

The factual background

8. Mr Ah Hin Teoh, the respondent, is a Malaysian citizen who arrived in Australia on 5 May 1988. He was granted a temporary entry permit which was valid until 5 November 1988. In July 1988, he married Helen Jean Lim who is an Australian citizen. At the time of the marriage, Ms Lim had four children. Following the marriage, Mr Teoh obtained an extension of his entry permit until 5 February 1989. On 3 February 1989, Mr Teoh lodged an application with the Department of Immigration and Ethnic Affairs seeking a grant of resident status.

9. To qualify for the grant of a permanent entry permit conferring resident status, Mr Teoh had to satisfy one of the conditions set out in s.6A of the Migration Act. Relevantly, that section provided: “(1) An entry permit shall not be granted to a non-citizen after his entry into Australia unless one or more of the following conditions is fulfilled in respect of him, that is to say –
…

(b) he is the spouse, child or aged parent of an Australian citizen or of the holder of an entry permit”. Mr Teoh made his application on the basis that he was the spouse of an Australian citizen. He did not rely on 6A(1)(e) which provides for applications on humanitarian or compassionate grounds. Although the Migration Act was extensively amended in 1989, transitional provisions allowed the application to continue to be treated through the reconsideration process as an application to which s.6A and other relevant provisions of the pre-amendment Act applied.

10. On 5 January 1989, prior to the lodging of the application, a child was born to Mr Teoh and his wife. Since that time, Mrs Teoh has given birth to two more children, who were born on 7 June 1990 and 20 March 1992 respectively. While the application for resident status was still pending, Mr Teoh was convicted in November 1990 on six counts of being knowingly concerned in the importation of heroin and three counts of being in possession of heroin contrary to the Customs Act 1901 (Cth). He was sentenced to a term of six years imprisonment with a non-parole period of two years and eight months. Mrs Teoh was also charged with offences in relation to heroin to which she pleaded guilty and in respect of which she was given an 18 month suspended sentence in July 1990. In November 1990, Mrs Teoh was charged with further drug related offences. In December 1991, she was sentenced to a term of imprisonment and not released until October 1992. Meanwhile, the children were placed in the care of the State.

11. On 2 January 1991, Mr Teoh was notified by letter that an officer authorised under the Migration Act had decided to refuse his application for the grant of resident status. Attached to that letter was a document entitled “Reasons for Decision” which stated:

“1.1 It is a policy requirement for grant of resident status that applicants be of good character.

1.2 Amongst other points one of the basis (sic) of assessment is whether the applicant has a criminal record.

1.3 All applicants aged 16 years or over are subject to the character requirement.

In this case applicant cannot meet the character requirement as he has a criminal record. Is currently serving 6 years imprisonment with a 2 yr 8 month non-parole period …

On completion of sentance (sic) it is likely he will be considered for deportation under section 14(1) of the Migration Act.”

12. On 5 February 1991, Mr Teoh lodged an application for reconsideration of his application for resident status by the Immigration Review Panel. On 25 July 1991, the Panel recommended that the application for reconsideration of the grant of resident status be rejected.

13. In its reasons the Panel said:

“Mrs Teoh, the applicants (sic) sponsor and a former employer have made claims on Compassionate Grounds for the application for Reconsideration to be approved. Mr (sic) Teoh states that she and the 5 children will suffer great financial and emotional hardship if the Applicant is deported. Mrs Teoh is receiving Community support during her husband’s imprisonment and will be dependent on Social Services if he (is) forced to leave Australia.
All the evidence for this Application has been carefully examined, including the claims of Ms Teoh.

It is realised that Mrs Teoh and family are facing a very bleak and difficult future and will be deprived of a possible breadwinner as well as a father and husband if resident status is not granted. However the applicant has committed a very serious crime and failed to meet the character requirements for the granting of Permanent Residency. The Compassionate claims are not considered to be compelling enough for the waiver of policy in view of Mr Teoh’s criminal record it is recommended that this application is rejected.”

14. Among the documents considered by the Panel was a document, dated 13 June 1991, apparently from within the Department which stated, inter alia:

“REASONS FOR MY RECOMMENDATION

Mr Teoh has claimed that if his residence application is refused it will cause hardship to his wife and children as he will not be able to provide them with assistance.

While it is reasonable to accept that there are compassionate factors present in this case, it must also be considered that Mr Teoh has been found guilty of committing a serious offence. The claim that he will be unable to provide assistance to his family is discounted by the fact that he is presently in prison, and will remain in prison at least until July 1993. He therefore is not in a position to provide assistance to his family at present.
Mr Teoh’s family are receiving community support while he is in prison and this situation may have to continue if he is required to leave Australia. However, I believe that the serious nature of his offences outweighs the compassionate factors therefore I recommend that refusal of this application.”

15. The recommendation of the Panel was accepted by the Minister’s delegate on 26 July 1991. On 17 February 1992, a delegate of the Minister made an order under s.60 of the Migration Act that Mr Teoh be deported from Australia.

16. In 1993, Mr Teoh sought judicial review of the decision of 26 July 1991 that refused the grant of resident status and of the decision of 17 February 1992 that ordered his deportation. French J rejected Mr Teoh’s application, but an appeal to the Full Federal Court succeeded. The Minister, pursuant to the grant of special leave to appeal, now appeals to this Court.

Departmental policy

17. Departmental policy concerning the grant of resident status was contained in a document entitled “Integrated Departmental Instructions Manual, Grant of resident status, Number 17”.

18. Paragraphs 1.1 to 1.3 of that document stated:

“1.1 It is a policy requirement for grant of resident status that applicants be of good character.

1.2 There is a three-fold basis of assessment:

. whether the applicant is likely to be a threat to Australia’s security by being reasonably likely to engage in or be involved in acts of espionage, sabotage, politically motivated violence or foreign interference, or in promotion of communal violence

. whether the applicant has a criminal record

. whether the applicant has other history of criminal activity, anti-social behaviour or immigration offences.

1.3 All applicants aged 16 years or over are subject to the character requirement.”

19. Paragraphs 3.2 and 3.3 of that document provided:

“3.2 Penal or other aspects: Applicants who come within Section 16(1)(c) of the Migration Act … are not considered to meet the good character requirement and their applications would normally be refused unless they could show strong cause why policy should be waived in their case. Decisions on such cases would normally be taken only by Regional Directors. Some may warrant Ministerial consideration.

3.3 Applicants who do not come within Section 16(1)(c) of the Act may also fail to meet the good character requirement. The nature, number or recency of the offences or activities concerned and the potential for continuance or recidivism may be such as to warrant refusal on the overall merits of the case. Similar considerations apply to applicants who have been dishonourably discharged from military service.”

20. Section 16 of the Migration Act 1958 provided that:
“(1) Where, after the commencement of this Part or before the commencement of this Part but after the commencement of the Immigration Restriction Act 1901, a person who enters or entered Australia is not, or was not at the time of that entry, an Australian citizen and who –
…
(c) at the time of entry is or was a person of any of the following descriptions, namely:
…
(ii) a person who has been convicted of a crime and sentenced to death, to imprisonment for life or to imprisonment for a period of not less than 1 year;
(iii) a person who has been convicted of 2 or more crimes and sentenced to imprisonment for periods aggregating not less than 1 year;
…
that person shall, notwithstanding section 10, be deemed to be a prohibited non-citizen unless he is the holder of an entry permit endorsed with a statement that the person granting that permit recognizes him to be a person referred to in this sub-section.”

21. Neither s.16(1)(c) nor par.3.2 of the departmental policy was directly applicable to the present case because Mr Teoh was convicted of his offences after his entry into Australia. But together with par.3.3 they indicate that an applicant will ordinarily be refused resident status when he or she has been given a lengthy prison sentence.

The doctrine of legitimate expectations

22. For over 25 years, the courts have held that the rules of natural justice protect the legitimate expectations as well as the rights of persons affected by the exercise of power invested in a public official. The doctrine of legitimate expectations was invented by Lord Denning M.R. in Schmidt v. Secretary of State for Home Affairs(51). In its original form, it was a device that permitted the courts to invalidate decisions made without hearing a person who had a reasonable expectation, but no legal right, to the continuation of a benefit, privilege or state of affairs. It, therefore, helped to protect a person from the disappointment and often the injustice that arises from the unexpected termination by a government official of a state of affairs that otherwise seemed likely to continue. In Attorney- General of Hong Kong v. Ng Yuen Shiu(52), the Judicial Committee of the Privy Council extended the application of the doctrine of legitimate expectations to cases where a public official had undertaken that he or she would act in a certain way in making a decision. So in Haoucher v. Minister for Immigration and Ethnic Affairs(53), this Court held that, if a public official had undertaken to exercise a power only when certain conditions existed, a person affected by the exercise of the power had a right to be informed of the matters that called for the exercise of the power.

23. After this Court’s decisions in Kioa v. West(54) and Annetts v. McCann(55), however, a question must arise as to whether the doctrine of legitimate expectations still has a useful role to play. Those cases decided that, where a statute empowers a public official or tribunal to make an administrative decision that affects a person, then, in the absence of a contrary legislative indication, the critical question is not whether the doctrine of natural justice applies but “what does the duty to act fairly require in the circumstances of the particular case?”(56). In Haoucher(57), Deane J expressed the view that the law seemed “to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognized as applying generally to governmental executive decision-making”.

24. I think that the rational development of this branch of the law requires acceptance of the view that the rules of procedural fairness are presumptively applicable to administrative and similar decisions made by public tribunals and officials. In the absence of a clear contrary legislative intention, those rules require a decision-maker “to bring to a person’s attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it”(58). If that approach is adopted, there is no need for any doctrine of legitimate expectations. The question becomes, what does fairness require in all the circumstances of the case?

25. Since Kioa, however, cases in this Court(59) have continued to use the concept of legitimate expectation to enliven the rules of procedural fairness. Furthermore, both in this Court and in the Full Court of the Federal Court, the argument in the present case proceeded upon the basis that, in so far as the right to procedural fairness depended upon Art.3 of the Convention, it was necessary to establish that the terms of the Convention gave rise to a legitimate expectation that the Minister’s delegate would comply with the requirements of Art.3 in reaching a decision concerning the residential status of Mr Teoh. Accordingly, I will deal with the appeal on the basis that the respondent must establish that the terms of the Convention gave rise to a legitimate expectation that the Minister’s delegate would comply with the terms of the Convention.

26. Hitherto, the view has been taken that circumstances do not give rise to a legitimate expectation sufficient to enliven the rules of procedural fairness unless the decision-maker has given an express or implied undertaking to persons such as the person affected or unless that person enjoys a benefit, privilege or state of affairs that seems likely to continue in the absence of special or unusual circumstances(60). In 1988, one writer summarised the cases in which legitimate expectations have been held to arise as follows(61):
“(F)or an expectation to be ‘legitimate’ in the required sense there must be positive grounds which are sufficient to render it objectively justifiable …
Our analysis of the cases suggests that there are four principal sources which the courts recognise as capable of rendering expectations legitimate or reasonable; (1) a regular course of conduct which has not been altered by the adoption of a new policy; (2) express or implied assurances made clearly on behalf of the decision-making authority within the limits of the power exercised; (3) the possible consequences or effects of the expectation being defeated especially where those consequences include economic loss and damage to reputation, providing that the severity of the consequences are a function of justified reliance generated from substantial continuity in the possession of the benefit or a failure to be told that renewal cannot be expected; and (4) the satisfaction of statutory criteria.” (footnotes omitted)

27. Prior to the present case, that summary seemed an accurate statement of the circumstances that could give rise to a legitimate expectation sufficient to enliven the rules of procedural fairness. None of them is present in this case. If Mr Teoh is to succeed, the doctrine of legitimate expectations will have to be extended. The Convention was not an instrument that the delegate was required to consider. Nor had the delegate undertaken to consider or apply its provisions. Moreover, neither Mr Teoh nor any member of his family had asked the delegate to take the provisions of Art.3 into account. It is only too obvious that they were oblivious of its existence.

28. A legitimate expectation may give rise to a requirement of procedural fairness but it does not give substantive protection to any right, benefit or privilege that is the subject of the expectation(62). So even if the respondents had a legitimate expectation concerning the Convention, the delegate was not obliged to apply the Convention.

29. The next question is whether the rules of procedural fairness required the delegate to inform the respondents that Art.3 would not be applied even though reasonable persons would expect it to be applied. In my opinion, the delegate was not required to notify the respondents that Art.3 would not be applied. As long as a decision-maker has done nothing to lead a person to believe that a rule will be applied in making a decision, the rules of procedural fairness do not require the decision-maker to inform that person that the rule will not be applied. Fairness does not require that a decision-maker should invite a person to make submissions about a rule that the decision-maker is not bound, and has not undertaken or been asked, to apply. Indeed, in those circumstances, a person cannot have a reasonable expectation that the rule will be applied.

30. If a person asks a decision-maker to apply a rule which the decision-maker is not bound to apply, the rules of procedural fairness do not require the person affected to be informed that that rule will not be applied. It seems anomalous, therefore, to insist that a decision-maker must inform a person that a rule will not be applied merely because, objectively, reasonable persons have an expectation that such a rule would be applied. It seems even more anomalous that a person should have to be notified that a rule will not be applied if he or she is not even aware of the rule’s existence. In my opinion, neither fairness nor good administration requires a decision-maker to inform a person that a rule will not be applied when the decision-maker has not led that person to believe that it would be applied.

31. Furthermore, the doctrine of procedural fairness is concerned with giving persons the opportunity to protect their rights, interests and reasonable expectations from the adverse effect of administrative and similar decisions. If the doctrine of legitimate expectations were now extended to matters about which the person affected has no knowledge, the term “expectation” would be a fiction so far as such persons were concerned. It is true that an expectation can only give rise to the right of procedural fairness if it is based on reasonable grounds(63). It must be an expectation that is objectively reasonable for a person in the position of the claimant. But that does not mean that the state of mind of the person concerned is irrelevant. If the statement of Toohey J in Haoucher(64) that “(l)egitimate expectation does not depend upon the knowledge and state of mind of the individual concerned” is meant to maintain the contrary proposition, I am unable to agree with it. If a person does not have an expectation that he or she will enjoy a benefit or privilege or that a particular state of affairs will continue, no disappointment or injustice is suffered by that person if that benefit or privilege is discontinued. A person cannot lose an expectation that he or she does not hold. Fairness does not require that a person be informed about something to which the person has no right or about which that person has no expectation.

32. Even if a legitimate expectation did arise in a case such as the present, all that procedural fairness would require would be for the decision-maker to inform the person affected that the decision-maker would not be acting in the manner expected. As I have indicated, a legitimate expectation gives rise to a requirement of procedural fairness but it does not give substantive protection to any right, benefit or privilege that is the subject of the expectation(65). Once the person was notified, the decision-maker would seem to have discharged his or her duty of procedural fairness. It may be that procedural fairness would also require the decision-maker to consider any subsequent submission that the rule should be applied. If it does, it merely shows how artificial is the doctrine of legitimate expectations in cases such as the present. Since the decision-maker is under no obligation to apply the rule, he or she would be at liberty to act in disregard of any subsequent submission that the rule should be applied.

33. It seems a strange, almost comic, consequence if procedural fairness requires a decision-maker to inform the person affected that he or she does not intend to apply a rule that the decision-maker cannot be required to apply, has not been asked or given an undertaking to apply, and of which the person affected by the decision has no knowledge.

The terms of the Convention did not give rise to a legitimate expectation in this case

34. However, if, contrary to my opinion, the doctrine of legitimate expectations is to be extended to cases where a person has no actual expectation that a particular course will be followed or a state of affairs continued, the terms of the Convention did not give rise to any legitimate expectation that the Minister or his delegate would exercise their powers under the Act in accordance with Australia’s obligations under the Convention.

35. Conventions entered into by the federal government do not form part of Australia’s domestic law unless they have been incorporated by way of statute(66). They may, of course, affect the interpretation or development of the law of Australia. Thus, in interpreting statutory provisions that are ambiguous, the courts will “favour a construction of a Commonwealth statute which accords with the obligations of Australia under an international treaty”(67). In that respect, conventions are in the same position as the rules of customary international law(68). International conventions may also play a part in the development of the common law(69). The question in this case, however, is not concerned with the interpretation of a statute or with the development of the common law. It is whether the ratification of the Convention on the Rights of the Child gave rise to a legitimate expectation that its terms would be implemented by the decision-maker in this case.

36. In exercising the discretion under the Migration Act in circumstances such as the present case, the terms of the Convention were matters which the Minister or his delegate could take into account (70). Nothing in the Act indicates that the terms of the Convention were outside the range of matters that a decision-maker could properly take into account. Furthermore, the Minister conceded that, in the circumstances of this case, the break up of the family unit was a matter of major significance. But that does not mean that the residents of Australia had a legitimate expectation that, upon the ratification of the Convention, federal officials and statutory office holders would act in accordance with the Convention.

37. In international law, conventions are agreements between States. Australia’s ratification of the Convention is a positive statement to other signatory nations that it intends to fulfil its obligations under that convention. If it does not do so, it is required to disclose its failure in its reports to the Committee on the Rights of the Child(71). I am unable to agree with the view expressed by Lee J in the Full Court that the “ratification of the Convention by the Executive was a statement to the national and international community that the Commonwealth recognised and accepted the principles of the Convention”(72) (my emphasis). The ratification of a treaty is not a statement to the national community. It is, by its very nature, a statement to the international community. The people of Australia may note the commitments of Australia in international law, but, by ratifying the Convention, the Executive government does not give undertakings to its citizens or residents. The undertakings in the Convention are given to the other parties to the Convention. How, when or where those undertakings will be given force in Australia is a matter for the federal Parliament. This is a basic consequence of the fact that conventions do not have the force of law within Australia.

38. If the result of ratifying an international convention was to give rise to a legitimate expectation that that convention would be applied in Australia, the Executive government of the Commonwealth would have effectively amended the law of this country. It would follow that the convention would apply to every decision made by a federal official unless the official stated that he or she would not comply with the convention. If the expectation were held to apply to decisions made by State officials, it would mean that the Executive government’s action in ratifying a convention had also altered the duties of State government officials. The consequences for administrative decision- making in this country would be enormous. Junior counsel for the Minister informed the Court that Australia is a party to about 900 treaties. Only a small percentage of them has been enacted into law. Administrative decision- makers would have to ensure that their decision-making complied with every relevant convention or inform a person affected that they would not be complying with those conventions.

39. I do not think that it is reasonable to expect that public officials will comply with the terms of conventions which they have no obligation to apply or consider merely because the federal government has ratified them. There can be no reasonable expectation that State government officials will comply with the terms of a convention merely because the Executive government of the Commonwealth has ratified it. In many cases, State governments will be strongly opposed to the federal government’s ratification of an international convention. Further, many federal administrative decisions are made by public officials and tribunals that are independent of the Executive government of the Commonwealth. I do not think that there can be a reasonable expectation that these officials and tribunals will necessarily act in accordance with the terms of a convention which does not have the force of law. Even in the case of decisions made by officers employed in federal government departments, it seems difficult, if not impossible, to conclude that there is a reasonable expectation that the terms of a convention will be complied with forthwith upon ratification. The nature of the obligations undertaken may make it impracticable to implement them forthwith. Total compliance with the terms of a convention may require many years of effort, education and expenditure of resources. For these and similar reasons, the parties to a convention will often regard its provisions as goals to be implemented over a period of time rather than mandates calling for immediate compliance. That being so, I do not think that members of the Australian community can hold a reasonable expectation that, upon the ratification of a convention, its provisions will thereafter be applied to any decision falling within the scope of the convention. Unless a Minister or his or her officials have given an indication that the provisions of a convention will henceforth be applied to decisions affecting that ministry, it is not reasonable to expect that the provisions of that convention apply to those decisions.

40. Even when federal statute law recognises, or provides the means for recognising, an international convention, I do not think that a legitimate expectation arises that federal officials will apply the terms of the convention. The mechanism by which the federal government has chosen to implement many conventions relating to human rights including the present Convention, for example, is through the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”). Upon a convention being declared an “international instrument relating to human rights and freedoms” under s.47(1) of that Act, the convention becomes a “relevant international instrument”(73). Consequently, the rights outlined in the convention become “human rights” for the purposes of the Act(74). This enlivens those provisions of the Act concerning human rights and allows the Commission to examine enactments or proposed enactments to ascertain whether they are, or would be, inconsistent with or contrary to any human right(75); to inquire into acts or practices that may be inconsistent with any human right(76); to report to the Minister as to the action that needs to be taken by Australia in order to comply with the convention(77); to prepare and publish guidelines for the avoidance of acts or practices that may be inconsistent with or contrary to the rights in the convention(78); and to intervene (as the Commission did in this case) in proceedings that involve human rights issues(79). The HREOC Act recognises that there may exist acts and practices that are inconsistent with or contrary to Australia’s human rights obligations as defined by the Act(80). The mechanisms for remedying those inconsistencies are those provided in the Act. I find it difficult to accept that Parliament intended that there should be remedies in the ordinary courts for breaches of an instrument declared for the purpose of s.47 of the HREOC Act when such remedies are not provided for by the Act.

41. At the relevant times in the present case, the Convention had not been declared to be an international instrument under the HREOC Act or otherwise acted on or been recognised by the Parliament. In January 1993, however, the Convention was declared to be an international instrument for the purposes of that Act(81). Thus, if the decision affecting Mr Teoh and his family had occurred after the Convention was declared to be an international instrument, either he or someone on behalf of his children could have made a complaint to the Commission that the Minister was in breach of the Convention. They would be entitled to seek redress through the mechanism of the HREOC Act for breach of the Convention. If, after due inquiry under Pt II, Div.3 of the Act, the Commission considered that the complaint was made out, it could take steps to have the matter settled or report the breach to the Minister. But I do not think that they could contend that the decision of the Minister and his delegate was void. That is because neither the ratification of the Convention nor its declaration under s.47 gave rise to any legitimate expectation that the Minister or his delegates would comply with the Convention. There is no legitimate expectation that a federal official will act in accordance with a rule that that official is at liberty to disobey and about which the official has given no promise or undertaking.

42. Furthermore, the terms of the departmental policy referred to above leave little room for a reasonable expectation that the best interests of an applicant’s children would be a primary consideration in an application for resident status. Paragraph 3.2 of the policy, although not directly applicable in this case, makes it plain that an application by a person who falls within s.16(1)(c) of the Act will “normally be refused unless they could show strong cause why (the) policy should be waived in their case”. This strong and specific statement leaves no room for a reasonable expectation that the best interests of an applicant’s children will be a primary consideration in determining an application. Other provisions of the policy make it plain that an applicant’s involvement in violence, espionage, sabotage, general criminal or anti-social behaviour will ordinarily result in the rejection of an application. There is, therefore, little, if any ground, in the policy for a reasonable expectation that the best interests of an applicant’s child will always be a primary consideration in the decision- making process. Its terms are not consistent with the alleged legitimate expectation.

43. Even if Art.3 is generally applicable to actions under the Migration Act, I do not think that Art.3 was intended to apply to an action that has consequences for a child but is not directed at the child. Article 3 will have enormous consequences for decision-making in this country if it applies to actions that are not directed at but merely have consequences for children. It seems unlikely, for example, that it was the intention of the article that a court must make the best interests of a child a primary consideration in sentencing a parent. And there are many other areas of administration where it could hardly have been intended that the best interests of the child were to be a primary consideration in actions that have consequences for a child. Must a public authority make the best interests of a child a primary consideration in determining whether to acquire compulsorily the property of a parent? Must the Commissioner of Taxation make the best interests of a child a primary consideration in exercising his powers under the Income Tax Assessment Act 1936 (Cth)? Questions of this sort make it likely that the provisions of Art.3 were intended to apply to “actions” that were directed at children and not those that merely have consequences for children.

44. In my opinion, therefore, Art.3 was not intended to apply to an application by an adult person for resident status. Here the action was directed at Mr Teoh. It was not directed at the children. I do not think that Art.3 required the Minister’s delegate to make the best interests of the children a primary consideration in deciding Mr Teoh’s application any more than that article required the judge who sentenced him to make the best interests of the children a primary consideration in the sentencing process.

45. In my view, neither Mr Teoh nor the members of his family had any legitimate expectation that his application for resident status would be decided by reference to what were the best interests of the children as stipulated in Art.3 of the Convention. But in any event, even if, contrary to my view, such an expectation did arise, I think that only a very literal reading of Art.3, the decision of the delegate and the departmental documents would require a conclusion that the best interests of the children were not a primary consideration in the decision to refuse Mr Teoh resident status.

Did the delegate fail to act in accordance with the principle in Art.3?

46. The exact application of Art.3 is far from clear. What Lord Denning M.R. said in Reg. v. Chief Immigration Officer(82) concerning the European Convention for the Protection of Human Rights and Fundamental Freedoms applies to the Convention and its provisions. His Lordship said:
“The Convention is drafted in a style very different from the way which we are used to in legislation. It contains wide general statements of principle.”

47. Article 3(1) insists that “(i)n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”. But no guidance is given as to what weight is to be given to those interests in an “action”. In the context of an application for resident status, it cannot require any more than that the delegate recognise that the interests of the children are best served by granting the parent resident status. But that does not mean that those interests must be given the same weight as the bad character of the applicant. The use of the word “a” indicates that the best interests of the children need not be the primary consideration. And, as Carr J recognised, a primary consideration may have to accommodate itself to other overriding interests(83).

48. On the evidence, the future of the family and the children was a primary consideration of the delegate. Both in the recommendation of the Immigration Review Panel and the departmental document prepared for the Panel, the welfare of the children and the break up of the family were regarded as constituting the compassionate grounds which could justify the grant of resident status, notwithstanding the bad character of Mr Teoh. In addition, those making decisions had before them letters from the applicant’s wife arguing that a refusal of resident status would have a devastating effect on the children. I find it difficult to accept that the delegate in considering the compassionate grounds did not consider what the best interests of the child required. The effect that refusal of the application would have on the family was the principal matter relied on in support of the application after the application was initially refused on 2 January 1991. The whole case for the respondent was that the interests of the children and Mrs Teoh required the grant of the application. I cannot accept that the delegate did not consider the application with that in mind. On the assumption that there was a legitimate expectation of compliance with the terms of the Convention, the substance of the expectation was not denied. Accordingly, no denial of procedural fairness occurred.

Obligation for further inquiries

49. It therefore becomes necessary to examine the other question raised in this appeal – whether “the proper consideration of the break-up of the family unit as a relevant matter that the decision-maker was bound to take into account necessarily involved the making of further inquiry into the facts by the decision-maker”.

50. In a number of cases, the Federal Court has found that a failure to make further inquiries constituted an improper exercise of the power granted by the statute or a failure to take into account a relevant consideration in exercising that power. In those cases, the Federal Court has held that further inquiries should have been made because (1) a specific matter was raised by an applicant or was within the knowledge of the Minister and that matter could not be properly considered without further inquiry(84), (2) the information before the Minister was not up to date(85) or (3) the absence of information before the Minister resulted from the Minister’s officers misleading the applicant(86). This case does not fit into any of those categories.

51. The impact of the deportation on the family of Mr Teoh was fully considered by the Minister’s delegate. Indeed, apart from Mr Teoh’s criminal convictions, his ties to the family and his role in supporting his and his wife’s children were the principal issues in the application. There is no ground for concluding that the delegate failed to consider the matter properly. It may be that further inquiries about the plight of the family may have led the delegate to place more weight on what would happen to the children if the application were refused. But this is a matter of weight. The weight that is given to a particular consideration is a matter for the decision-maker, not for the courts in an application for judicial review. This is not a case where the Minister’s delegate simply discounted the assertions of hardship to the family. The delegate was asked to consider the position of the family, had information about the family, and made her decision on that basis. That she gave greater weight to the requirement of good character than to the welfare of the children is irrelevant for present purposes. The Migration Act entrusts the weighing of such considerations to administrative officials. It is a consequence of the doctrine of separation of powers that the decisions of administrative officials acting within their powers must be accepted by the courts of law whatever the courts may think of the merits of particular administrative decisions.

52. For these reasons, further inquiries were not required to fulfil any of the delegate’s statutory or common law obligations.

Conclusion

53. The appeal should be allowed. The decision of the Full Federal Court should be set aside. There should be no order as to the costs of the proceedings in this Court or the Federal Court.

Footnotes

1 s.7(3).

2 See s.6(6).

3 [1947] HCA 21; (1947) 74 CLR 492 at 505.

4 Chow Hung Ching v. The King [1948] HCA 37; (1948) 77 CLR 449 at 478; Bradley v. The Commonwealth [1973] HCA 34; (1973) 128 CLR 557 at 582; Simsek v. Macphee [1982] HCA 7; (1982) 148 CLR 636 at 641-642; Koowarta v. Bjelke-Petersen (1982) 153 CLR 168 at 211-212, 224- 225; Kioa v. West (1985) 159 CLR 550 at 570; Dietrich v. The Queen [1992] HCA 57; (1992) 177 CLR 292 at 305; J.H. Rayner Ltd. v. Dept. of Trade (1990) 2 AC 418 at 500.

5 Simsek v. Macphee (1982) 148 CLR at 641-642.

6 Chu Kheng Lim v. Minister for Immigration [1992] HCA 64; (1992) 176 CLR 1 at 38.

7 Polites v. The Commonwealth [1945] HCA 3; (1945) 70 CLR 60 at 68-69, 77, 80-81.

8 Reg. v. Home Secretary; Ex parte Brind [1991] UKHL 4; (1991) 1 AC 696 at 748.

9 Mabo v. Queensland (No.2) [1992] HCA 23; (1992) 175 CLR 1 at 42 per Brennan J (with whom Mason CJ and McHugh J agreed); Dietrich v. The Queen (1992) 177 CLR at 321 per Brennan J, 360 per Toohey J; Jago v. District Court of New South Wales (1988) 12 NSWLR 558 at 569 per Kirby P.; Derbyshire County Council v. Times Newspapers Ltd. (1992) QB 770.

10 Lamb v. Cotogno (1987) 164 CLR 1 at 11-12.

11 The New Shorter Oxford English Dictionary on Historical Principles, 3rd ed. (1993) at 467. 12 [1985] FCA 326; (1985) 69 ALR 342 at 353.

13 [1985] FCA 47; (1985) 65 ALR 549.

14 ibid. at 562.

15 (1989) 91 ALR 39 at 45.

16 [1993] FCA 493; (1993) 117 ALR 455 at 474.

17 See Minister for Foreign Affairs and Trade v. Magno (1992) 37 FCR 298 at 343; Tavita v. Minister of Immigration (1994) 2 NZLR 257 at 266.

18 cf. Simsek v. Macphee (1982) 148 CLR at 644.

19 Teoh v. Minister [1994] FCA 1017; (1994) 121 ALR 436.

20 See ibid. at 441.

21 See Art.49.2.

22 See s.47 of the HREOC Act. 23 (1994) 121 ALR at 440-441.

24 ibid. at 443.

25 ibid. at 449.

26 ibid.

27 ibid. at 450.

28 ibid. at 451.

29 ibid. at 466.

30 ibid.

31 See generally ibid. at 468.

32 Chow Hung Ching v. The King [1948] HCA 37; (1948) 77 CLR 449 at 478 per Dixon J; Bradley v. The Commonwealth (1973) 128 CLR 557 at 582 per Barwick CJ and Gibbs J; Simsek v. Macphee [1982] HCA 7; (1982) 148 CLR 636 at 641-642 per Stephen J; Koowarta v. Bjelke-Petersen (1982) 153 CLR 168 at 193 per Gibbs CJ; Dietrich v. The Queen [1992] HCA 57; (1992) 177 CLR 292 at 305 per Mason CJ and McHugh J, 359-360 per Toohey J. See also Minister for Foreign Affairs and Trade v. Magno (1992) 112 ALR 529; Reg. v. Sandford (1994) 33 NSWLR 172 at 177 per Hunt CJ; J.H. Rayner Ltd. v. Department of Trade (1990) 2 AC 418 at 500 per Lord Oliver.

33 See for instance Haoucher v. Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648 at 655, 670-671, 679-680, 684-685.

34 Tate, “The Coherence of ‘Legitimate Expectations’ and the Foundations of Natural Justice”, (1988) 14 Monash University Law Review 15 at 50.

35 [1991] UKHL 4; [1991] UKHL 4; (1991) 1 AC 696.

36 (1994) 2 NZLR 257.

37 ibid. at 266.

38 (1992) 112 ALR 529.

39 ibid. at 535.

40 [1993] FamCA 103; (1993) 16 Fam LR 982.

41 (1990) 14 Fam LR 427 at 451.

42 Haoucher v. Minister for Immigration and Ethnic Affairs (1990) 169 CLR at 670.

43 cf. A.-G. of Hong Kong v. Ng Yuen Shiu [1983] UKPC 2; (1983) 2 AC 629 at 638 where the Privy Council said that “when a public authority has promised to follow a certain procedure, it is in the interests of good administration that it should act fairly and implement its promise, so long as implementation does not interfere with its statutory duty”.

44 cf. Family Law Act 1975 (Cth), s.64(1)(a): “the court must regard the welfare of the child as the paramount consideration”.

45 The Macquarie Dictionary, 2nd ed. (1991) at 373.

46 The New Shorter Oxford English Dictionary on Historical Principles, 3rd ed. (1993) at 467. 47 Videto v. Minister [1985] FCA 326; (1985) 69 ALR 342 at 353.

48 See, in relation to the “direct responsibility of the crown” which founds the “parens patriae” jurisdiction originally conferred on the English Court of Chancery, Secretary, Department of Health and Community Services v. J.W.B. and S.M.B. (“Marion’s Case”) [1992] HCA 15; (1992) 175 CLR 218 at 258-259 and the cases there cited; cf. at 279-280. See, in relation to the paramountcy of the child’s welfare in the exercise of that jurisdiction, Marion’s Case at 292-293 and the cases there cited. 49 See Australian Treaty Series 1991 No.4.

50 Arts 42-45.

51 (1969) 2 Ch 149 at 170 -171.

52 [1983] UKPC 2; (1983) 2 AC 629.

53 [1990] HCA 22; (1990) 169 CLR 648.

54 [1985] HCA 81; (1985) 159 CLR 550.

55 [1990] HCA 57; (1990) 170 CLR 596.

56 Kioa (1985) 159 CLR at 585.

57 (1990) 169 CLR at 653.

58 Kioa (1985) 159 CLR at 587.

59 See, for example, Haoucher (1990) 169 CLR 648; Attorney-General (N.S.W.) v. Quin (1990) 170 CLR 1; Ainsworth v. Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564; and indeed Kioa [1985] HCA 81; (1985) 159 CLR 550 and Annetts [1990] HCA 57; (1990) 170 CLR 596 themselves.

60 Kioa (1985) 159 CLR at 583; Haoucher (1990) 169 CLR at 682.

61 Tate, “The Coherence of ‘Legitimate Expectations’ and the Foundations of Natural Justice”, (1988) 14 Monash University Law Review 15 at 48-49.

62 See, for example, Quin (1990) 170 CLR at 21-22 per Mason CJ, 39-41 per Brennan J; Haoucher (1990) 169 CLR at 651-652 per Deane J; see also Reference re Canada Assistance Plan (B.C.) (1991) 2 SCR 525 at 557-558; (1991) 83 DLR (4th) 297 at 319.

63 Ng Yuen Shiu (1983) 2 AC at 636.

64 (1990) 169 CLR at 670.

65 See, for example, Quin (1990) 170 CLR at 21-22 per Mason CJ, 39-41 per Brennan J; Haoucher (1990) 169 CLR at 651-652 per Deane J; see also Reference re Canada Assistance Plan (B.C.) (1991) 2 SCR at 557-558; (1991) 83 DLR (4th) 297 at 319.

66 Chow Hung Ching v. The King [1948] HCA 37; (1948) 77 CLR 449 at 478; Bradley v. The Commonwealth [1973] HCA 34; (1973) 128 CLR 557 at 582; Simsek v. Macphee [1982] HCA 7; (1982) 148 CLR 636 at 641-642; Koowarta v. Bjelke-Petersen (1982) 153 CLR 168 at 193, 212, 224, 253; Kioa (1985) 159 CLR at 570-571, 604; Dietrich v. The Queen [1992] HCA 57; (1992) 177 CLR 292 at 305-306, 321, 348-349, 359-360; J.H. Rayner (Mincing Lane) Ltd. v. Department of Trade and Industry (1990) 2 AC 418 at 476-477, 500; Young v. Registrar, Court of Appeal (No.3) (1993) 32 NSWLR 262 at 272-274; In the Marriage of Murray and Tam [1993] FamCA 103; (1993) 16 Fam LR 982 at 997-998.

67 Chu Kheng Lim v. Minister for Immigration [1992] HCA 64; (1992) 176 CLR 1 at 38.

68 Polites v. The Commonwealth (1945) 70 CLR 60 at 68-69, 77, 80-81.

69 Mabo v. Queensland (No.2) [1992] HCA 23; (1992) 175 CLR 1 at 42; Dietrich (1992) 177 CLR at 321, 360; Jago v. District Court of N.S.W. (1988) 12 NSWLR 558 at 569; Ballina Shire Council v. Ringland (1994) 33 NSWLR 680 at 709-710.

70 Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. [1986] HCA 40; (1986) 162 CLR 24 at 40.

71 See Arts 43-44.

72 Teoh v. Minister [1994] FCA 1017; (1994) 121 ALR 436 at 449; [1994] FCA 1017; 49 FCR 409 at 420.

73 s.3(1).

74 s.3(1).

75 s.11(1)(e).

76 s.11(1)(f).

77 s.11(1)(k).

78 s.11(1)(n).

79 s.11(1)(o).

80 See Pt II, Div.3 of the HREOC Act.

81 See Commonwealth of Australia, Gazette GN 1, 13 January 1993 at 85.

82 (1976) 1 WLR 979 at 985.

83 Teoh v. Minister (1994) 121 ALR at 467; 49 FCR at 438.

84 For example, Lek v. Minister for Immigration and Ethnic Affairs [1993] FCA 493; (1993) 117 ALR 455; 45 FCR 418; Akers v. Minister for Immigration and Ethnic Affairs [1988] FCA 459; (1988) 20 FCR 363; cf. Singh v. Minister for Immigration and Ethnic Affairs (1987) 15 FCR 4.

85 For example, Tickner v. Bropho [1993] FCA 208; (1993) 114 ALR 409; 40 FCR 183.

86 For example, Videto v. Minister [1985] FCA 326; (1985) 69 ALR 342; 8 FCR 167.

The post Minister of State for Immigration & Ethnic Affairs Vs. Ah Hin Teoh (“Teoh’s case”) appeared first on B&B Associates LLP.

JUDGMENT:

1. Leave granted.

2. It will be convenient to answer the questions of law that arise in the present case, before we advert to the factual controversy between the parties. The questions of law are:

[1] Has an organiser or producer of any event a right to get the event telecast through an agency of his choice whether national or foreign?

[2] Has such organiser a choice of the agency of telecasting, particularly when the exercise of his right, does not make demand on any of the frequencies owned, commanded or controlled by the Government or the Government agencies like the Videsh Sanchar Nigam Limited [VSNL] or Doordarshan [DD]?

[3] Can such an organiser be prevented from creating the terrestrial signal and denied the facility of merely uplinking the terrestrial signal to the satellite owned by another agency whether foreign or national?

[4] What, if any, are the conditions which can be imposed by the Government department which in the present case is the Ministry of Information and Broadcasting [MIB] for [a] creating terrestrial signal of the event and [b] granting facilities of uplinking to a satellite not owned or con- trolled by the Government or its agencies?

3. On answers to these questions depend the answers to the incidental questions such as [i] whether the Government or the Government agencies like DD in the present case, have a monopoly of creating terrestrial signals and of telecasting them or refusing to telecast them, [ii] whether the Government or Government agencies like DD can claim to be the host broadcaster for all events whether produced or organised by it or by anybody else in the country and can insist upon the organiser or the agency for telecasting en- gaged by him, to take the signal only from the Government or Government agency and telecast it only with its permission or

4. To appreciate the thrust of the above questions and the answers to them, it is necessary first to have a proper understanding of what ’telecasting’ means and what its legal dimensions and consequences are. Telecasting is a system of communication either audio or visual or both. We are concerned in the present case with audio-visual telecommunication. The first stage in telecasting is to generate the audio-visual signals of the events or of the information which is sought to be communicated. When the event to be telecast takes place on the earth, necessarily the signal is generated on the earth by the requisite electronic mechanism such as the audio-visual recorder. This stage may be described as the recording stage. The events may be spontaneous, accidental, natural or organised. The spontaneous, accidental and natural events are by their nature uncontrollable. But the organised events can be controlled by the law of the land. In our country, since the Organisation of an event is an aspect of the fundamental right to freedom of speech and expression protected by Article 19 [1] (a), the law can be made to control the Organisation of such events only for the purposes of imposing reasonable restrictions in the interest of the sovereignty and integrity of the country, the security of the state, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement- to an offence as laid down under Article 19 [2] of the Constitution. Al- though, therefore, it is not possible to make law for prohibiting the recording of spontaneous, accidental or natural events, it is possible for the reasons mentioned in Article 19 [2], to restrict their telecasting. As regards the organised events, a law can be made for restricting or prohibiting the Organisation of the event itself, and also for telecasting it, on the same grounds as are mentioned in Article 19 [2]. There, cannot, however, be restrictions on producing and recording the event on grounds not permitted by Article 19 [2]. It, therefore, follows that the Organisation or production of an event and its recording cannot be prevented except by law permitted by Article 19 [2]. For the same reasons, the publication or communication of the recorded event through the mode of cassettes cannot be restricted or prevented except under such law. All those who have got the apparatus of video cassette recorder [VCR] and the television screen can, therefore, view and listen to such recorded event [hereinafter referred to, for the sake of convenience, as ’viewers’]. In this process, there is no demand on any frequency or channel since there is no live- telecast of the event. The only additional restriction on telecasting or live-telecasting of such event will be the lack of availability of the frequency or channel.

5. Since in the present case, what is involved is the right to live-telecast the event, viz., the cricket matches organised by the Cricket Association of Bengal, it is necessary to understand the various issues involved in live telecasting. It may be made clear at the outset, that there may as well be a file telecast [i.e., telecasting of the events which are already recorded by the cassette]. The issues involved in file telecasting will also be more or less the same and therefore, that subject is not dealt with separately. Telecasting live or file necessarily involves the use of a frequency or a channel.

6. The telecasting is of three types, [a] terrestrial, [b] cable and [c] satellite. In the first case, the signal is generated by the camera stationed at the spot of the event,- and the signal is then sent to the earthly telecasting station such as the T.V. Centre which in turn relays it through its own frequencies to all the viewers who have T.V.screens/sets. In the second case, viz., cable telecasting, the cable operator receives the signals from the satellite by means of the parabolic dish antenna and relays them to all those T.V. screens which are linked to his cable. He also relays the recorded file programmes or cassettes through the cable to the cable-linked viewers. In this case, there is no restriction on his receiving the signals from any satellite to which his antenna is adjusted. There is no demand made by him on any frequency or channel owned or controlled by the national government or governmental agencies. The cable operator can show any event occurring in any part of the country or the world live through the frequencies if his dish antenna can receive the same. The only limitation from which the cable T.V. suffers is that the programmes relayed by it can be received only by those viewers who are linked to the dish antenna concerned. The last type, viz., satellite T.V. operation involves the use of a frequency generated, owned or controlled by the national Government or the Governmental agencies, or those generated, owned and controlled by other agencies. It is necessary to bear in mind the distinction between the frequencies generated, owned and controlled by the Government or Governmental agency and those generated and owned by the other agencies. This is so because generally, as in the present case, one of the contentions against the right to access to telecasting is that there are a limited number of frequencies and hence there is the need to utilise the limited resources for the benefit of all sections of the society and to promote all social interests by giving them priority as determined by some central authority. It follows, therefore, that where the resources are unlimited or the right to telecast need not suffer for want of a frequency, objection on the said ground would be misplaced. It may be stated here that in the present case, the contention of the MIB and DD against the right to telecast claimed by the Cricket Association of Bengal [CAB]/Board of Control for Cricket in India [BCCI] was raised only on the ground of the limitation of frequencies, ignoring the fact that the CAB/BCCI had not made demand on any of the frequencies generated or owned by the MIB/DD. It desired to telecast the cricket matches organised by it through a frequency not owned or controlled by the Government but owned by some other agency. The only permission that the CAB/ BCCI sought was to uplink to the foreign satellite the signals created by its own cameras and the earth station or the cameras and the earth station of its agency to a foreign satellite. This permission was sought by the CAB/BCCI from VSNL which is the Government agency controlling the frequencies. The permission again cannot be refused except under law made in pursuance of the provisions of Article 19 [2] of the Constitution. Hence, as stated above, one of the important questions to be answered in the present case is whether the permission to uplink to the foreign satellite, the signal created by the CAB/BCCI either by itself or through its agency can be refused except on the ground stated in the law made under Article 19 [2].

7. This takes us to the content of the fundamental right to the freedom of speech and expression guaranteed by Article 19 [1] (a) and the implications of the restrictions permitted to be imposed on the said right, by Article 19 [2]. We will first deal with the decisions of this Court where the dimensions of the right are delineated.

8. In Romesh Thappar v. The State of Madras [1950 SCR 594] the facts were that the Provincial Government in exercise of its powers under Section 9 [1-A] of Madras Maintenance of Public Order Act, 1949, by an order imposed a ban upon the entry and circulation of the petitioner’s journal ’Cross Roads’. The said order stated that it was being passed for the purpose of securing the public safety and the maintenance of public order. The petitioner approached this Court under Article 32 of the Constitution claiming that the order contravened the petitioner’s fundamental right to freedom of speech and expression. He also challenged the validity of Section 9 [1-A] of the impugned Act. The majority of the Court held that the freedom of speech and expression includes freedom of propagation of ideas and that freedom is ensured by the freedom of circulation. In support of this view, the Court referred to two decisions of the U.S. Su- preme Court viz., [1] Exparte Jackson [96 US 727] and [ii] Lovell v. City of Griffin [303 US 444] and quoted with approval the following passage therefrom: “Liberty of circulation is as essential to that freedom as the liberty of publication. Indeed, without circulation the publication would be of little value”. Section 9 [1-A] of the impugned Act authorised the Provincial Government, “for the purpose of securing the public safety or the maintenance of public order, to prohibit or regulate the entry into or the circulation, sale or distribution in the Province of Madras or any part thereof or any document or class of documents”. The question that the Court had to answer was whether the impugned Act insofar as it contained the aforesaid provision was a law relating to a matter which undermined the security of, or tended to overthrow the State. The Court held that “public order” is an expression of wide connotation and signifies that state of tranquility which prevails among the members of a political society as a result of the internal regulations enforced by the Government which they have established. The Act was passed by the Provincial Leg- islature under Section 100 of the Government of India Act, 1935, read with Entry I of List II of the Seventh Scheduled to that Act. That Entry, among others, comprised “public order” which was different from “public safety” on which subject the Provincial Legislature was not competent to make a law. The Court distinguished between “public order” and “public safety” and held that public safety was a part of the wider concept of public order and if it was intended to signify any matter distinguished from and outside the content of the expression “public order”, it would not have been competent for the Madras Legislature to enact the provision so far as it related to public safety. “Public safety” ordinarily means security of the public or their freedom from danger. In that sense, anything which tends to prevent danger to public health may also be regarded as se- curing public safety. The meaning of the expression must, however, vary according to the context. The Court then rejected the argument that the securing of the public safety or maintenance of public order would include the security of the State which was covered by Article 19 [2] and held that where a law purports to authorise the imposition of restrictions on a fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative actions affecting such right, it is not possible to uphold it even insofar as it may be applied within the constitutional limits as it is not severable. So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it may be held to be wholly unconstitutional and void. In other words, clause [2] of Article 19 having allowed the imposition of restrictions on the freedom of speech and expression only in cases where danger to the State is involved, an enactment which is capable of being applied to cases where no such danger could arise, cannot be held to be constitutional and valid to any extent.

9. The above view taken by this Court was reiterated in Brij Bhushan & Anr. v. The State of Delhi [1950 SCR 6051 where Section 7 [1] (c) of the East Punjab Public Safety Act, 1949 as extended to the Province of Delhi, providing that the Provincial Government or any authority authorised by it in this behalf, if satisfied that such action was necessary for preventing or combating any activity prejudicial to the public safety or the maintenance of public order, may pass an order that any matter relating to a particular subject -or class of subjects shall before publication be submitted for scrutiny, was held as un- constitutional and void. The majority held that the said provision was violative of Article 19 [1] [a] since it was not a law relating to a matter which undermined the security of, or tended to overthrow the State within the meaning of the then saving provision contained in Article 19 [2]. The Court further unanimously held that the imposition of pre- censorship of a journal was a restriction on the liberty of the press which was an essential part of the right to freedom of speech and expression declared by article 19 [1](a).

10. In Hamdard Dawakhana [Wakf] Lal Kuan, Delhi & Anr. v. Union of India & Ors. [(1960) 2 SCR 671], the Court held that the object of the Drugs and Magic Remedies [Objectionable Advertisements] Act, 1954 was the prevention of self-medication and self-treatment by prohibiting in- struments which may be used to advocate the same or which tended to spread the evil. Its object was not merely the stopping of advertisements offending against morality and decency. The Court further held that advertisement is no doubt a form of speech but its true character is reflected by the object for the promotion of which it is employed. It is only when an advertisement is concerned with the expression or propagation of ideas that it can be said to relate to freedom of speech but it cannot be said that the right to publish and distribute commercial advertisements advertising an individual’s personal business is a part of the freedom of speech guaranteed by the Constitution. The provisions of the Act which prohibited advertisements commending the efficacy, value and importance in the treatment of particular diseases of certain drugs and medicines did not fall under Article 19 [1] (a) of the Con- stitution. The scope and object of the Act, its true nature and character was not interference with the right of freedom of speech but it dealt with trade and business. The provisions of the Act were in the interest of the general public and placed reasonable restrictions on the trade and business of the petitioner and were saved by Article 19 [6]. The Court further held that the first part of Section 8 of the impugned Act which empowered any person authorised by the State Government to seize and detain any document article or thing which such person had reason to believe, contained any advertisement contravening the provisions of the Act imposed an unreasonable restriction on the fundamental rights of the petitioner and was unconsti- tutional. According to the Court, the said operation of Section 8 went far beyond the purposes for which the Act was enacted and failed to provide proper safeguards in regard to the exercise of the powers of seizure and detention as had been provided by the legislature in other statutes. However, if this operation was excised from the section the remaining portion would be unintelligible and could not be upheld.

11. In Sakal Papers [P] Ltd. & Ors.. v. The Union of India [(1962)] 3 SCR 842] what fell for consideration was the Newspaper [Price and age] Act, 1956 which empowered the Central Government to regulate the prices of newspapers in relation to their pages and size and also to regulate the allocation of space for advertising matters and the Central Government order made under the said Act, viz., the Daily Newspaper [Price and Page] Order, 1960 which fixed the maximum number of pages that might be published by the newspaper according to the price charged and prescribing the nature of supplements that could be issued. The Court held that the Act and the Order were void being violative of Article 19 [1] (a) of the Constitution. They were also not saved by Article 19 [2]. The Court asserted that the free- dom of speech and expression guaranteed by Article 19 [1]

(a) included the freedom of the press. For propagating his ideas a citizen had the right to publish them, to disseminate them and to circulate them, either by word or mouth or by writing. The right extended not merely to the matter which he was entitled to circulate but also to the volume of circulation. Although the impugned Act and the Order placed restraints on the volume of circulation, their very object was directed against circulation. Thus both interfered with the freedom of speech and expression. The Court held that Article 19 [2] did not permit the State to abridge the said right in the interest of general public. The Court also held that the State could not make a law which directly restricted one guaranteed freedom for securing the better enjoyment of another freedom. Freedom of speech could not be restricted for the purpose of regu- lating the commercial aspect of the activities of newspapers. In this connection, the following observations of the Court are relevant:

“Its object thus is to regulate something which, as already stated, is directly related to the circulation of a newspaper. Since circulation of a newspaper is a part of the right of freedom of speech the Act must be regarded as one directed against the freedom of speech. It has selected the fact or thing which is an essential and basic attribute of the conception of the freedom of speech, viz., the right to circulate one’s views to all whom one can reach or care to reach for the imposition of a restriction. It seeks to achieve its object of enabling what are termed the smaller newspapers to secure larger cir- culation by provisions which without disguise are aimed at restricting the circulation of what are termed the larger papers with better financial strength. The impugned law far from being one, which merely interferes with the right of freedom of speech incidentally, does so directly though it seeks to achieve the end by purporting to regulate the business aspect of a newspaper. Such a course is not permissible and the courts must be ever vigilant in guarding perhaps the most precious of all the freedoms guaranteed by our Constitution. The reason for this is obvious. The freedom of speech and expression of opinion is of paramount importance under a democratic Constitution which envisages changes in the composition of legislatures and governments and must be preserved. No doubt, the law in question was made upon the rec- ommendation of the Press Commission but since its object is to affect directly the right of circulation of newspapers which would necessarily undermine their power to influence public opinion it cannot but be regarded as a dangerous weapon which is capable of being used against democracy itself.

x x x x x x The legitimacy of the result intended to be achieved does not necessarily imply that every means to achieve it is permissible; for even if the end is desirable and permissible, the means employed must not transgress the limits laid down by the Constitution, if they directly impinge on any of the fundamental rights guaranteed by the Constitution it is no answer when the constitutionality of the measure is challenged that apart from the fundamental right infringed the provision is otherwise legal.

Finally it was said that one of its objects is to give some kind of protection to small or newly started newspapers and, therefore, the Act is good. Such an object may be desirable but for attaining it the State cannot make inroads on the right of other newspapers which Art. 19 [1] (a) guarantees to them. There may be other ways of helping them and it is for the State to search for them but the one they have chosen falls foul of the Constitution.

To repeat, the only restrictions which may be imposed on the rights of an individual under Art. 19 [1] (a) are those which cl. [2] of Art 19 permits and no other”.

12. In Bennett Coleman & Co. & Ors. v. Union of India & Ors. [(1972) 2 SCC 788], the majority of the Constitution Bench held that newspapers should be left free to determine their pages, their circulation and their new edition within their quota which has been fixed fairly. It is an abridgment of freedom of expression to prevent a common ownership unit from starting a new edition or a new newspa- per. A common ownership unit should be free to start a new edition out of their allotted quota and it would be logical to say that such a unit can use its allotted quota for changing its page structure and circulation of different editions of same paper. The compulsory reduction to ten pages offends Article 19 [1] (a) and infringes the freedom of speech and expression. Fixation of page limit will not only deprive the petitioners of their economic viability, but will also restrict the freedom of expression by reason of the compulsive reduction of page level entailing reduction of circulation and including the area of coverage for news and views. Loss of advertisements may not only entail the closing down, but will also affect the circulation and thereby impinge on freedom of speech and expression. The freedom of press entitles newspapers to achieve any volume of circulation. It was further held that the machinery of import control cannot be utilised to curb or control circulation or growth or freedom of newspapers.The news print control policy was in effect a newspaper control policy and a newspaper control policy is ultra vires the Import Control Act and the Import Control Order. The majority further held that by the freedom of press is meant the right of citizens to speak and publish and express their views. The freedom of the press embodies the right of the people to read and it is not ante-thetical to the right of the people to speak and express. The freedom of speech and expression is not only in the volume of circulation but also in the volume of news and views. The press has the right of free publication and their circulation without any obvious restraint on publication. If the law were to single out press for laying down prohibitive burdens on it that would restrict circulation, penalise freedom of choice as to personnel, prevent newspapers from being started and compel the press to Government aid. This would violate Article 19 [1] (a) and would fall outside the protection afforded by Article 19 [2]. The First Amendment to the American Constitution contains no exception like our Article 19 [2]. Therefore, American decisions have evolved their own exceptions. The American decisions establish that a Government regulation is justified in America as an important essential Government interest which is unrelated to the suppression of free expression. The true test is whether the effect of the impugned action is to take away or abridge fundamental rights. The object of the law or executive action is irrelevant when it is established that the petitioner’s fundamental right is infringed.

13. In Indian Express Newspapers (Bombay) Pvt. Ltd. & Ors. v. Union of India & Ors. [(1985) 1 SCC 641 ], the Court held that the expression “freedom of the press” has not been used in Article 19, but it is comprehended within Article 19 [1] (a). This expression means a freedom from interference from authority which would have the effect of interference with the content and circulation of newspapers. There cannot be any interference with that freedom in the name of public interest. The purpose of the press is to advance the public interest by publishing facts and opinions without which democratic electorate cannot make responsible judgments. Freedom of the press is the heart of social and political intercourse. It is the primary duty of the Courts to up,,hold the freedom of the press and invalidate all laws or administrative actions which interfere with it contrary to the constitutional mandate. The freedom of expression has four broad social purposes to serve: [i] it helps an individual to attain self fulfilment, [ii] it assists in the discovery of truth, [iii] it strengthens the capacity of an individual in participating in decision-making and [iv] it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change. All members of the society should be able to form their own beliefs and communicate them freely to others. In sum, the fundamental principle involved here is the people’s right to know. Freedom of speech and expression should, therefore, receive a generous support from all those who believe in the participation of people in the administration. It is on account of this special interest which society has in the freedom of speech and expression that the approach of the Government should be more cautious while levying taxes on matters concerning newspaper industry than while levying taxes on other matters.The Courts are there always to strike down curtailment of freedom of press by unconstitutional means. The delicate task of determining when it crosses from the area of profession, occupation, trade, business or industry into the area of freedom of expression and interferes with that freedom is entrusted to the Courts. In deciding the reasonableness of restrictions imposed on any fundamental right the Court should take into consideration the nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the disproportion of the imposition and the prevailing conditions including the social values whose needs are sought to be satisfied by means of the restrictions. The imposition of a tax like the custom duty on news print is an imposition of tax on knowledge and would virtually amount to a burden imposed on a man for being literate and for being conscious of his duty as a citizen to inform himself of the world around him. The pattern of the law imposing custom duty and the manner in which it is operated, to a certain extent, exposes the citizens who are liable to pay the custom duties to the vagaries of executive discretion.

14. In Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana and others [(1988) 3 SCC 410 ], it was held that the right of citizens to exhibit films on Doordarshan subject to the terms and conditions to be imposed by the Doordarshan is a part of the fundamental right of freedom of expression guaranteed under Article 19 [1] (a) which can be curtailed only under circumstances set out under Article 19 [2]. The right is similar to the right of citizen to public his views through any other media such as newspapers, maga- zines, advertisement hoarding etc. subject to the terms and conditions of the owners of the media. The freedom of expression is a preferred right which is always very zealously guarded by the Supreme Court. However, on the question whether a citizen has a fundamental right to estab- lish a private broadcasting station or T.V. centre, the Court reserved its opinion for decision in an appropriate case. The matter had come up before this Court against an interim injunction order issued by the High Court as a result of which 12th and 13th episodes of the film “Honi- Anhoni” could not be telecast on the scheduled dates. The Court held that it was not the case of the writ petitioners before the High Court that the exhibition of the said serial was in contravention of any specific law or direction issued by the Government. They had also not alleged that the Doordarshan had shown any undue favour to the appellant and the sponsoring institutions resulting in any financial loss to the public exchequer. The objection to the exhibition of the film had been raised by them on the basis that it was likely to spread false or blind beliefs among the members of the public. They had not asserted any right conferred on them by any statute or acquired by them under a contract which entitled them to secure an order of temporary injunction. The appellant before this court had denied that the exhibition of the serial was likely to affect prejudicially the wellbeing of the people. The Union of India and Doordarshan had pleaded that the serial was being telecast after following the prescribed procedure and taking necessary precautions. The writ petitioners had not produced any material. apart from their own statements to show” that the exhibition of the serial was prima facie prejudicial to the community. This Court held that the High Court had overlooked that the issue of an order of interim injunction would infringe the fundamental right of the producer of a serial. In the absence of any prima facie evidence of gross prejudice that was likely to be caused to the public generally by the exhibition of the serial, it was not just and proper to issue an order of temporary in- junction.

15. In S. Rangarajan v. P. Jagjivan Ram & Ors. [(1989) 2 SCC 574], it was held that the-freedom of speech under Ar- ticle 19 [1] (a) means the right to express one’s opinion by words of mouth, writing, printing, picture or in any other manner. It would thus include the freedom of communication and,their right to propagate or publish opinion. The communication of ideas could be made, through any medium, newspaper, magazine or movie. But this right is subject to reasonable restriction in the larger interests of the community and the country set out in Article 19 [2]. These restrictions are intended to strike a proper balance between the liberty guaranteed and the social interests specified in Article 19 [2]. This is the difference between the First Amendment to the U.S. Constitution and Article 19 of our Constitution. The decisions bearing on the First Amendment are, therefore, not useful to us except the broad principle and purpose of the guarantee. The Court, in this connection, referred to the U.S. decisions in Mutual Film Corporation v. Industrial Commission [236 US 230 (1915)], Burslyn v. Wilson [343 US 495] and Schenck v. United States [249 US 47]. The Court further held that there should be a compromise between the interest of freedom of expression and social interests. The Court cannot simply balance the two interests as if they are of equal weight. The Court’s commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interests. It should be inseparably locked up with the action contemplated like the equivalent of a “spark in a powder keg”. Though movie enjoys the guarantee under Article 19 [1] (a), there is one significant difference between the movie and other modes of communication. Movie motivates thought and action and assures a high degree of attention and retention. In view of the scientific improve- ments in photography and production, the present movie is a powerful means of communication. It has a unique capacity to disturb and arouse feelings. It has much potential for evil as it has for good. With these qualities and since it caters for mass audience who are generally not selective about what they watch, the movie cannot be equated with other modes of communication. It cannot be allowed to function in a free marketplace just as does the newspaper or magazines. Censorship by prior restraint is, therefore, not only desirable but also necessary. But the First Amendment to the U.S. Constitution does not permit any prior restraint, since the guarantee of free speech is in unqualified terms. Censorship is permitted mainly on the ground of social interests specified under Article 19 [2] with emphasis on maintenance of values and standards of society. Therefore, censorship with prior restraint must necessarily be reasonable that could be saved by the well accepted principles of judicial review. The standard to be applied by the board or courts for judging the film should be that of an ordinary man of common sense and prudence and not that of an out of the ordinary or hypersensitive man. The board should exercise considerable circumspection on movies affecting the morality or decency of our people and cultural heritage of the country. The moral values in particular, should not be allowed to be sacrificed in the guise of social change or cultural assimilation. The path of right conduct shown by the great sages and thinkers of India and the concept of ’Dharam’ [righteousness in every respect], which are the bedrock of our civilisation, should not be allowed to be shaken by unethical standards. But this does not mean that the censors should have an orthodox 132
or conservative outlook. Far from it, they must be responsive to social change and they must go with the current climate. However, the censors may display more sensitivity to movies which will have a markedly deleterious effect to lower the moral standards of those who see it.

16. However, the producer may project his own message which the others may not approve of it. But he has a right to ’think out’ and put the counter-appeals to reason. It is a part of a democratic give and take to which one could complain. The State cannot prevent open discussion and open expression, however hateful to its policies. Everyone has a fundamental right to form his own opinion on any issue of general concern. He can form and inform by any legitimate means. The democracy is a government by the people via open discussion. The democratic form of government itself demands its citizens an active and intelligent participation in the affairs of the community. The public discussion with people’s participation is a basic feature and a rational process of democracy which distinguishes it from all other forms of government.

17. Dealing with the film in question, the Court further observed that the film in the present case suggests that the existing method of reservation on the basis of caste is bad and reservation on the basis of economic backwardness is better. The film also deprecates exploitation of people on caste consideration. This is the range and rigours of the film. There is no warrant for the view that the expression in the film by criticism of reservation policy or praising the colonial rule will affect the security of the State or sovereignty and integrity of India. There is no utterrance in the film threatening to overthrow the government by unlawful or unconstitutional means or for secession; nor is there any suggestion for impairing the integration of the country. Two Revising Committees have approved the film. The members thereof come from different walks of life with variegated experiences. They represent the cross-section of the community. They have judged the film in the light of the objectives of the Act and the guidelines provided for the purpose. There is nothing wrong or contrary to Constitution in approving the film for public exhibition. The producer or as a matter of fact, any other person has a right to draw the attention of the government and people that the existing method of reservation in educational institutions overlooks merits. Whether this view is right or wrong is another matter altogether and at any rate, the Court is not concerned with its correctness or usefulness to the people. The Court is only concerned whether such a view could be advocated in a film. To say that one should not be permitted to advocate that view goes against the first principle of our democracy. If the film is unobjectionable and cannot constitutionally be restricted under Article 19 [2], freedom of expression cannot be suppressed on account of threat of demonstration and processions or threats of violence. That would tantamount to negation of the rule of law and a surrender to blackmail and intimidation. It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State. The State cannot plead its inability to handle the hostile audience problem. Freedom of expression which is legitimate and constitutionally protected cannot be held to ransom by an intolerant group of people. The fundamental freedom under Article 19 [1] (a) can be reasonably restricted only for the purposes mentioned in Article 19 [2] and the restriction must be justified on the anvil of necessity and not the quicksand of convenience or expediency. Open criticism of government policies and operations is not a ground for restricting ex- pression.

18. The views taken by this Court in the aforesaid decisions have thereafter been repeated and reproduced in the subsequent decisions.

19. In Printers (Mysore) Ltd. & Anr v. Asst. Commercial Tax Officer & Ors. [(1994) 2 SCC 434], it is reiterated that the special treatment given to the newspapers has a philosophy and historical background. Freedom of press has been placed on a higher footing than other enterprises. Though freedom of press is not expressly guaranteed as a fundamental right, it is implicit in the freedom of speech and expression. Freedom of press has always been a cherished right in all democratic countries. Therefore, it has rightly been described as the Fourth Estate. The demo- cratic crede is of a State are judged today by the extent of freedom the press enjoyed in that State. This decision quotes from the. opinion of Douglas, J. in Terminiello v. Chicago [93 L.ed 1131: 337 US 1 (1949)] that “acceptance by Government of a dissident press is a measure of the maturity of the nation”.

20. In Life Insurance Corporation of India v. Professor Manubhai D. Shah [(1992) 3 SCC 6371, the respondent-Ex- ecutive Trustee of the Consumer Education and Research Centre [CERC], Ahmedabad, after making research into the working of the Life Insurance Corporation [LIC], published a study paper portraying the discriminatory practice adopted by the LIC by charging unduly high premia from those taking out life insurance policies and thus denies access to insurance coverage to a vast majority of people who cannot afford to pay the high premium. A member of the LIC wrote a counter article and published it in the daily newspaper “Hindu”. The respondent replied to the same in the said newspaper. The member of LIC then published his counter- reply in LIC’s house magazine. The respondent requested the LIC to publish his rejoinder also in the said magazine. That request was turned down. On these facts, the re- spondent filed a writ petition before the High Court challenging the action of the LIC, among other things, on the ground that his fundamental right under Article 19 [1]
(a) of the Constitution was violate by LIC by refusing to publish his reply. The High Court held that under the pre- text and guise of publishing a house magazine, the LIC cannot violate the fundamental rights of the petitioner.

This Court endorsing the view taken by the High Court held that the LIC is ’State’ within the meaning of Article 12. The LIC Act requires it to function in the best interest of the community. The community is, therefore, entitled to know whether or not this requirement of the statute is being satisfied in the functioning of the LIC. The respondent’s efforts in preparing the study paper was to bring to the notice of the community that the LIC had strayed from its path by pointing out that its premium rates were unduly high when they could be low if the LIC avoided the wasteful indulgences. The endeavour was to enlighten the community of the drawbacks and shortcomings of the LIC and to pinpoint the area where improvement was needed and was possible. By denying to the policy-holders, the information contained in the rejoinder prepared by the respondent, the LIC cannot be said to be acting in the best interest of the community. There was nothing offensive in the rejoinder which fell within the restriction clauses of Article 19 [2]. Nor was it prejudicial to the members of the community or based on imaginary or concocted material. On the basis of the fairness doctrine the LIC was under an obligation to publish the rejoinder. The respondent’s fun- damental right to speech and expression clearly entitled him to insist that his views on the subject should reach those who read the magazine so that they have complete picture before them instead of a one-side or distorted picture The Court also pointed out that the attitude of the LIC in refusing to publish the rejoinder in their magazine financed from public funds, can be described as both unfair and unreasonable unfair because fairness demanded that both view-points were placed before the readers and unreasonable because there was no justification for refusing publication. The monopolistic State instrumentality which survives on public funds cannot act in an arbitrary manner on the specious plea that the magazine is an in-house one and it is a matter of its exclusive privilege to print or refuse to print the rejoinder. By refusing to print and publish the rejoinder’, the LIC had violated respondent’s fundamental right. The Court must be careful to see that it does not even unwittingly’ aid the effort to defeat the parties’ right. Every free citizen has an undoubted right to lay what sentiments he pleases before the public. Freedom to air one’s views is the lifeline of any democratic institution and any attempt to stifle, suffocate or gag this right would sound a death-knell to democracy and would help usher in autocracy or dictatorship. This Court has always placed a broad interpretation on the value and content of Article 19 [1] (a), making it subject only to the restrictions permissible under Article 19 [2]. Efforts by intolerant authorities to curb or suffocate this freedom have always been firmly repelled, more so when public authorities have betrayed autocratic tendencies. The Court then went on to observe:

broadly construed to include the freedom to circulate one’s views by words of mouth or in writing or through audio-visual instrumentalities. It, therefore, includes the right to propagate one’s views through the print media i.e., periodicals, magazines or journals or through any other communication channel e.g. the radio and the television. The right extends to the citizen being permit- ted to use the media to answer the criticism levelled against the view propagated by him.

The print media, the radio and the tiny screen play the role of public educators, so vital to growth of a healthy democracy. These communication channels are great purveyors of news and views and make considerable impact on the minds of the readers and viewers and are known to mould public opinion on vital issues of national importance. Modem communication mediums advance public interest by informing the public of the events and developments that have taken place and thereby educating the voters, a role considered significant for the vibrant functioning of a democracy. Therefore, in any set-up, more so in a democratic set-up like ours, dissemination of news and views for popular consumption is a must and any attempt to deny the same must be frowned upon unless it falls within the mischief of Article 19 [2].This freedom must, however,be exercised with circumspection and care must be taken not to trench on the rights of other citizens or to jeopardise public interest.

A constitutional provision is never static, it is ever-evolving and ever-changing and, therefore, does not admit of a narrow, pedantic or syllogistic approach. The Con- stitution-makers employed broad phraseology while the fundamental tights so that they may be able to cater to the needs of a changing society. Therefore, constitutional provisions must receive a broad interpretation and the scope and ambit of such provisions, in particular the fundamental rights, should not be cut down by too astute or too restricted an approach, unless the context otherwise re- quires.

21. The facts in the other case which was disposed of simultaneously by the same judgment were that the Doordarshan refused to telecast a documentary film on the Bhopal Gas Disaster titled ’Beyond Genocide’ produced by the respondent Ciment Foundation on the grounds that [i] the film was outdated, [ii] it had lost its relevance, [iii] it lacked moderation and restraint, [iv] it was not fair and balanced, [v] political parties were raising various issues concerning the tragedy, [vi] claims for compensation by the victims were sub judice, [vii] the film was.likely to create commotion in the already charged atmosphere and [viii] the film criticised the action of the State Government and it was not permissible under the guidelines. The respondent filed a writ petition in the High Court on the ground of violation of his fundamental right under Article 19 [1] (a) and for a mandamus to the Doordarshan to telecast the film. The High Court held that the respondent’s right under Article 19 [1] (a) obliged the Doordarshan to telecast the film and directed the Doordarshan to telecast the film at a time and date, convenient to it keeping in view the public interest, and on such terms and conditions as it would like to impose in accordance with the law. In the appeal against the said decision filed in this Court, the Court held that once it has recognised that the film maker has the fundamental right under Article 19 [1] (a) to exhibit the film, the onus lies on the party which claims that it was entitled to refuse enforcement of this right by virtue of law made under Article 19 [2] to show that the film did not conform to requirements of that law. Doordarshan being a State-controlled agency funded by public funds could not have denied access to screen except on valid grounds. The freedom conferred on a citizen by Article 19 [1] (a) includes the freedom to communicate one’s ideas or thoughts through a newspaper, a magazine or a movie. Traditionally, prior restraints, regardless of their form, are frowned upon as threats to freedom of expression since they contain within themselves forces which if released have the potential of imposing arbitrary- and at times direct conflict with the right of another citizen. Censorship by prior restraint, therefore, seems justified for the protec- tion of the society from the ill-effects that a motion picture may produce if unrestricted exhibition is allowed. Censorship is thus permitted to protect social interests enumerated in Article 19 [2] and Section 5-B of the Cinema to graph Act. For this reason, need for prior restraint has been recognised and our laws have assigned a specific role to the censors, as such is the need in a rapidly changing societal structure. But since permissible restrictions, albeit reasonable, are all the same restrictions, they are bound to be viewed as anathema, in that, they are in the nature of curbs or limitations on the exercise of the right and are, therefore, bound to be viewed with suspicion, thereby throwing a heavy burden on the authorities that seek to impose them to show that the restrictions are reasonable and permissible in law. Such censorship must be reasonable and must answer the test of Article 14.

22. In this connection, it will be interesting also to know the content of the right to freedom of speech and expression under the First Amendment to the American Constitution where the freedom of press is exclusively mentioned as a part of the said right unlike in Article 19 [1] (a) of our Constitution. Further, the restrictions on the right are not spelt out as in our Constitution under Article 19 [2]. But the U.S. Supreme court has been reading some of them as implicit in the right. In principle, they make no difference to the content of the right to the freedom of speech and expression under our Constitution.

23. In National Broadcasting Company v. United States of America [319 US 190238 : 87 L ed 1344], it was held, inter alia, that the wisdom of regulations adopted by the Federal Communications Commission is not a matter for the courts, whose duty is at an end when they find that the action of the Commission was based upon findings supported by evidence, and was made pursuant to authority granted by Congress.

24. In Joseph Burstyn v Lewis A. Wilson [343 US 495: 96 L ed 1098] a licence granted for the exhibition of a motion picture was rescinded by the appropriate New York authorities -on the ground that the picture was “sacrilegious” within the meaning of a statute requiring the denial of a licence if a film was “sacrilegious”. The statute was upheld by the State courts. The Supreme Court unanimously reversed the decision of the State courts. Disapproving a contrary theory expressed in Mutual Film Corp. v. Industrial Com. of Ohio [236 US 230: 59 L ed 442], six members of the Supreme Court in an opinion of Clerk, J. held that the basic principles of freedom of speech and press applied to motion pictures, even though their production, distribution, and exhibition is a large-scale business conducted for profit. The court recognised that motion pictures are not necessarily subject to the precise rules governing any other particular method of expression, but found it not necessary to decide whether a State may censor motion pictures under a clearly drawn statute, and limited its decision to the holding that the constitutional guarantee of free speech and press prevents a state from banning a film on the basis of a censor’s conclusion that it is ” sacrilegious”. Reed, J. in a concurrent opinion emphasised that the question as to whether a state may establish a system for the licensing of motion pictures was not foreclosed by the court’s opinion. Frankfurter, J. with Jackson and Burton, JJ. held that the term “sacrilegious” as used in the statute was unconstitutionally vague.

25. In Red Lion Broadcasting Co. etc. el. al. v. Federal Communications Commission et. al. and United Slates et. al. v. Radio Television News Directors Association et al. [395 US 367: 23 L Ed 2d 3711 which two cases were disposed of by common judgment, the facts were that in the first case, the Broadcasting Company carried as a part of “Christian Crusade” series, a 15-minute broadcast in which a third person’s honesty and character were attacked. His demand for free reply time was refused by the broadcasting station. Federal Communications Commission [FCC] issued a declaratory order to the effect that the broadcasting station had failed to meet its obligation under the FCC’s fairness doctrine. The Court upheld the FCC’s directions.

26. In the second case, the FCC after the commencement of the litigation in the same case made the personal attack aspect of the fairness doctrine more precise and more readily enforceable. The Court upheld the FCC’s rules overruling the view taken by the Court of Appeals that the rules were unconstitutional as abridging the freedom of speech and press.

27. The Court dealing with the two cases held:

“Just as the Government may limit the use of sound-amplifying equipment potentially so noisy that it drowns out civilized private speech, so may the Govenrnment limit the use of broadcast equipment. The right of free speech of a broadcaster, the user of a sound track, or any other individual does not embrace a right to snuff out the free speech of others.

x x x x x x x

for public broadcasting were limited in number, it was essential for the Government to tell some applicants that they could not broadcast at all because there was room for only a few.

x x x x x x x

Where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish. If 100 persons want broadcast licences but there are only 10 frequencies to allocate, all of them may have the same “right” to a license; but if there is to be any effective communication by radio, only a few can be licensed and the rest must be barred from the airwaves. It would be strange if the First Amendment, aimed at protecting and furthering communications, prevented the government from making radio communication possible by requiring licenses to broadcast and by limiting the number of licenses so as not to overcrowd the spectrum.

This has been the consistent view of the Court. Congress unquestionably has the power to grant and deny licenses and to eliminate existing stations… No one has a First Amendment right to a license or to monopolize a radio frequency; to deny a station license because “the public interest” requires it “is not a denial of free speech.

By the same token, as far as the First Amendment is concerned those who are licensed stand no better than those to whom licenses are refused. A license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizenis. There is nothing in the First Amendment which prevents the Govenunent from requiring a licensee to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves.

This is not to say that the First Amendment is irrelevant to public broadcasting. On the contrary, it has a major role to play as the Congress itself recognized, which forbids FCC interference with “the right of free speech by means of radio communication.

Because of the scarcity of radio frequencies, the Government is permitted to put restraints on licensees in favour of others whose views should be expressed on this unique medium. But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amenchnent. It is the right of the viewers and listeners, not the right of the
broadcasters, which is paramount…

It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee… It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here. That right may not constitutionally be abridged either by Congress or by the FCC… right on licensees to prevent others from broadcasting on t ’their” frequencies and no right to an unconditional monopoly of a scarce resource which the Government has denied others the right to use.

x x x x x x x

Nor can we say that it is inconsistent with the First Amendment goal of producing an informed public capable of conducting its own affairs to require a broadcaster to permit answers to personal attacks occurring in the course of discussing controversial issues, or to require that the political opponents of those endorsed by the station be given a chance to communicate with the public. Otherwise, station owners and a few networks would have unfettered power to make time available only to the highest bidders, to com- municate only their own views on public issues, people and candidates, and to permit on the air only those with whom they agreed. There is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all. “Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests.

x x x x x x x

licensees given the privilege of using scarce radio frequencies as proxies for the entire community, obligated to give suitable time and attention to matters of great public concern. To condition the granting or renewal of licenses on a willingness to present representative community views on controversial issues is consistent with the ends and purposes of those constitutional provisions forbidding the abridgment of freedom of speech and freedom of the press. Congress need not stand idly by and permit those with licenses to ignore the problems which beset the people or to exclude from the airways anything but their own views of fundamental questions….

Licenses to broadcast do not confer ownership of designated frequencies, but only the temporary privilege of using them.”

28. Referring to the contention that although at one time the lack of available frequencies for all who wished to use them justified the Government’s choice, of those who would best serve the public interest by acting as proxy for those who would present differing views, or by giving the latter access directly to broadcast facilities, the said condition no longer prevailed to invite continuing control, the Court held:
“Scarcity is not entirely a thing of the past. Advances in technology, such as microwave transmission, have led to more efficient utilisation of the frequency spectrum, but uses for that spectrum have also grown apace. Portions of the spectrum must be reserved for vital uses unconnected with human communication, such as radio-navigational aids used by aircraft-and vessels. Conflicts have even emerged between such vital functions as defense preparedness and experimentation in methods of averting n-ddair collisions through radio warning devices. “Land mobile services” such as police, ambulance, fire department, public utility, and other communications system have been occupying an increasingly crowded portion of the frequency spectrum and there are, apart from licensed amateur radio operators’ equipment, 5,000,000 transmitters operated on the “citizens’ band” which is also increasingly congested. Among the various uses for radio frequency space, including marine, aviation, amateur, military, and common carrier users, there are easily enough claimants to permit use of the whole with an even smaller allocation to broadcast radio and television uses than now exists.

Comparative hearings between competing applicants for broadcast spectrum space are by no means a thing of the past. The radio spectrum has become so. congested that at times it has been necessary to suspend new applications. The very high frequency television spectrums, in the country’s major markets, ahmost entirely occupied, although space reserved for ultra high frequency television transmission, which is a relatively recent development as a commercially viable alternative, has not yet been completely filled.

The rapidity with which technological advances succeed one another to create more efficient use of spectrum space on the one hand, and to create new uses for that space by ever growing numbers of people on the other, makes it unwise to speculate on the future allocation of that space. It is enough to say that the resource is one of considerable and growing importance whose scarcity impelled its regulation by an agency authorised by Congress. Nothing in this record, or in our own researches, convinces us that the resource is no longer one for which there are more immediate and potential uses than can be accommodated, and for which wise planning is essential. This does not mean, of course, that every possible wavelength must be occupied at every hour by some vital use in order to sustain the congressional judgment. The substantial capital investment required for many uses, in addition to the potentiality for confusion and interference inherent in any scheme for continuous kaleidoscopic reallocation of all available space may make this unfeasible. The allocation need not be made at such a breakneck pace that the objectives of the allocation are themselves imperiled.

Even where there are gaps in spectrum utilization, the fact remains that existing broadcasters have often attained their present position because of their initial government selection in competition with others before new technological advances opened new opportunities for further uses. Long experience in broadcasting, confirmed habits of listeners and viewers, network affiliation, and other advantages in program procurement give existing broadcasters a substantial advantage over new entrants, even where new entry is technologically possible. These advantages are the fruit of a preferred position conferred by the Government. Some present possibility for new entry by competing stations is not enough, in itself, to render unconstitutional the Government’s effort to assure that a broadcaster’s programming ranges widely enough to serve the public interest.

In view of the scarcity of broadcast frequencies, the Government’s role in al- locating those frequencies, and the legitimate claims of those unable without governmental assistance to gain access to those frequencies for expression of their views, we hold the regulations and ruling at issue here are both authorized by statute and constitutional.”

29. In Columbia Broadcasting System etc. etc. v. Democratic National Committee etc. etc.[412 US 94 : 36 L Ed 2d 772], in separate decisions rejecting the contentions that the general policy of certain radio and television broadcast licensees of not selling any editorial advertising time to individuals or groups wishing to speak out on public issues violated the Federal Communications Act of 1934 and the First Amendment, such contentions having been asserted in actions instituted by a national Organisation of businessmen opposed to United States involvement in Vietnam and by the Democratic National Committee, the US Court of Appeals for the District of Columbia Circuit reversed the Commission. However, the US Supreme Court reversed the Court of Appeals. Burger, C.J. expressing the views of the six members of the Court held:

“…[1] the First Amendment issues involved in the case at bar had to be evaluated within the framework of the statutory and regulatory scheme that had developed over the years, affording great weight to the decisions of Congress and the experience of the Federal Communications Commission, and [2] under the Federal Communications Act and the Commission’s “fairness doctrine,” broadcast licensees had broad journalistic discretion in the area of discussion of public issues.

It was also held, expressing the views of five members of the court [Part IV of the opinion], that [3] neither the public interest standards of the Federal Communications Act nor the First Amendment, assuming that there was governmental action for First Amendment purposes, required broadcasters to accept editorial advertisements, notwithstanding that they accepted commercial advertisements, and [4] the Commission was justified in concluding that the public interest would not be served by a system affording a right of access to broadcasting facilities for paid editorial advertisements, since such a system would be heavily weighted in favor of the financially affluent, :would jeopardize effective operation of the Commission’s “fairness doctrine”, and would increase government involvement in broadcasting by requiring the Commission’s daily supervision of broad- casters’ activities…… a broadcaster’s refusal to accept any editorial advertisements was not governmental action for purposes of the First Amendment, since private broadcasters, even though licensed and regulated to some extent by the government, were not instrumentalities or “partners” of the government for First Amendment purposes, and since the Commission, in declining to reject the broadcasters’ policies against accepting editorial -advertisements, had not fostered or required such policy”.

30. It may be mentioned here that unlike in this country, in United States, the private individuals and institutions are 141
given licences to have their own broadcasting stations and hence the right of the private broadcasters against the right of others who did not own the broadcasting stations but asserted their right of free speech and expression were pitted against each other in this case and the decision has mainly turned upon the said balancing of rights of both under the First Amendment. It was in substance held that any direction to the private broadcasters by the Government to sell advertising time to speak out on public issues violated the protection given by the First Amendment to the private broadcasters against Government control.

31. In Federal Communications Commission et al. v. WNCN Listeners Guild et al. [450 Us 582 : 67 L Ed 2d 521], a number of citizen groups interested in fostering and preserving particular entertainment formats petitioned for review of the Policy Statement of Federal Communications Commission [FCC] in the US Court of Appeals for the District of Columbia Circuit. The Court held that the Policy Statement was contrary to the Communications Act of 1934. The US Supreme Court reversed the decision of the Court of Appeals by majority, holding, inter alia, that the Policy Statement was not inconsistent with the Communications Act since the FCC provided a rational explanation for its conclusion that reliance on the market was the best method of promoting diversity in entertainment formats and that the FCC’s judgment regarding how the public interest is best served was entitled to substantial judicial deference and its implementation of the public interest standard, when based on a rational weighing of competing policies was not to be set aside. Marshall and Brennan, JJ., however, held that in certain limited circumstances, the FCC may be obliged to hold a hearing to consider whether a proposed change in a licensee’s entertainment programme format is in the public interest and that the FCC’s Policy Statement should be vacated since it did not contain a safety valve procedure that allowed the FCC the flexibility to consider applications for exemptions based on special circumstances and since it failed to provide a rational explanation for distinguishing between entertainment and non-entertainment programming for purposes of requiring Commission review of format changes.

32. In City of Los Angeles & Department of Water and Power v. Preferred Communications, Inc. [476 US 488: 90 L ed 2d 480], a cable television company asked a public utility and the city of Los Angeles’s water and power department for permission to lease space on their utility poles in order to provide cable television service to part of the city. The respondent-company was told that it must first obtain franchise from the appellant-City which refused to grant one on grounds that the company had failed to participate in an auction that was to award a single franchise in the area.

The respondent sued claiming violation of his right under the free speech clause of the First Amendment. It was alleged in the complaint that there was sufficient physical capacity and the economic demand in the area at issue to accommodate more than one cable company and that the city’s auction process allowed it to discriminate among applicants. As against this, the appellant argued that lack of space on public utility structures, the limited economic demand, and the practical and aesthetic disruptive effects on the public right of way justified its decision. The District Court dismissed the complaint. On appeal, the US Court of Appeals reversed and remanded ’,or further proceedings. The US Supreme Court affirmed the Court of Appeals. Rehnquist, J. expressing the unanimous decision of the Court held:

“…[1]that the cable television company’s complaint should not have been dismissed, since the activities in which it allegedly, sought to engage plainly implicated First Amendment interests where they included the communications of messages on a wide variety of topics and in a wide variety of formats, through original programming or by exercising editorial discretion over which stations or programs to include in its repertoire, but [2] that it was not desirable to express any more detailed views on the proper resolution of the First Amendment question without a more thor- oughly developed record of proceedings in which the parties would have an opportunity to prove those disputed factual assertions upon which they relied.”

33.The position of law on the freedom of speech and press has been explained in [16 Am Jur 2d 3431 as under:
“The liberty of the press was initially a right to publish without a license that which formerly could be published only with one, and although this freedom from previous. restraint upon publication could not be regarded as exhausting the guaranty of liberty, the prevention of that restraint was a leading purpose in the adoption of the First Amendment. It is well established that liberty of the press historically considered and taken up by the Federal Constitution, means principally, although not exclusively, immunity from previous restraints or censorships. Stated differently, the rule is that an essential element of the liberty of the press is its freedom from all censorships over what shall be published and exemption from control, in advance, as to what shall ap- pear in print….

x x x x x x

The freedom of speech and press embraces the right to distribute literature, and necessarily protects the right to receive literature which is distributed. It is said that liberty in circulating is as essential to the freedom as liberty of publishing, since publication without circulation would be of little value.
The right or privilege of free speech and publication, guaranteed by the constitutions of the United States and of the several states, has its limitations and is not an absolute right, although limitations are recognised only in exceptional cases.

x x x x x x

The question of when the right of free speech or press becomes wrong by excess is difficult to determine. Legitimate attempts to protect the public, not from the remote possible effects of noxious ideologies, but from present excesses of direct, active conduct are not presumptively bad because they interfere with and in some of their manifestations restrain the exercise of the First Amendment rights. The issue in every case is whether the words used are used hi such circumstances and are of such a nature as to create a clear and present danger that they will bring about substantive evils which the federal or state legislatures have a right to prevent; it is a question of proximity and degree.

x x x x x x x

The freedoms of speech and press are not limited to particular media of expression. Verbal expression is, of course, protected, but the right to express one’s views in an orderly fashion extends to the communication of ideas by handbills and literature as well as by the spoken word. Picketing carried on in a non labor context, when free from coercion, intimidation, and violence, is constitutionally guaranteed as a right of free speech.”

34. In “Civil Liberties & Human Rights” authored by David Feldman, the justification for and limits of freedom of expression are stated in the following words.
The liberty to express one’s self freely is important for a number of reasons. Firstly, self-expression is a signifi- cant instrument of freedom of conscience and self- fulfillment. Second justification concerns epistemology. Freedom of expression enables people to contribute to debates about social and moral values. The best way to find the best or truest theory or model of anything is to permit the widest possible range of ideas to circulate. Thirdly, the freedom of expression allows political discourse which is necessary in any country which aspires to democracy. And lastly, it facilitates artistic scholarly endeavours of all sorts.

35. The obvious connection between press freedom and freedom of speech is that the press is a medium for broadcasting information and opinion. Firstly, media freedom as a tool of self-expression is a significant instrument of personal autonomy. Secondly, as a channel of communication, it helps to allow the political discourse in a democracy. Thirdly, it helps to provide one of the essential conditions in scholarships making possible the ex- change and evaluation of theories, explanations and discoveries, and lastly, it helps to promulgate a society’s cultural values and facilitates the debate about them, ad- vancing the development and survival of civilisation.

36.Referring to the reasons for regulating the broadcasting media, the learned author has stated that, first, the Government realises the potential of channels of mass communication for contributing to democracy or undermining it. They hoped to foster a public service ethos in broadcastings so that it would be a medium for educating and improving the population. Secondly in order to do this its was necessary to keep the media of mass communications from having programme policy dictated entirely by market forces. A strong pubic sector and regulation of the inde- pendent sector when one started to operate, were called for. Thirdly, when commercial broadcasters appeared on the scene, 1 and a regulatory scheme was being developed for them, it was thought to be important to preserve a diversity of ideas by preventing oligopolistic concentrations of power in the hands of a few, usually rich and conservative media magnates, and to ensure that licences were granted only to people who could be expected not to abuse the privilege. The need to preserve propriety has been a motivating factor in the regulation of commercial broadcasting over much of the world. Fourthly, government hoped to ensure that civilised standards were maintained, to uphold social values. Fifthly, wave lengths for broadcasting were limited. This purely technical consideration sharply distinguishes broadcasting from newspapers, and justifies a higher level of regulation. In theory, if not in practice, there is nothing to prevent any number of newspapers being published simultaneously. The only controlling mechanism needed is that of market forces. This is not true of broadcasting. Some control over the allocation of wave- lengths is ’needed in order to ensure that there are sufficient for all legitimate broadcasters. Lastly, another legitimate object of national regulation is to protect the intellectual property rights of programme makers and broadcasters. It is permissible on this ground for an Organisation to prevent people from getting access to programmes without paying proper licence fees. One way of preventing this is to encode programme transmissions and to restrict access to decoders to people who pay the fee.

37. The freedom to receive and to communicate information and ideas without interference is an important aspect of the freedom of free speech and expression. We may in this connection refer to Article 10 of the European Convention on Human Rights which states as follows:

” 10.1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as areprescribed by law and are necessary in a democratic society, in the interests of na- tional security, territorial integrity or pub- lic safety, for the prevention of disorder or crime, for the protection of health or morals. for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

38. The next question which is required to be answered is whether there is any distinction between the freedom of the print media and that of the electronic media such as radio and television, and if so, whether it necessitates more restrictions on the latter media.

39. Eric Barendt in his book titled ” Broadcasting Law [1993 Edn.] which presents a comparative study of the law in five’ legal systems, viz., Great Britain, France, Germany, Italy and United States of America, has dealt with the subject succinctly. He has referred to a number of reasons which are generally put forward to justify broadcasting regulations and has dealt with each of them. The first reason advanced is that because the airwaves are a public resource, the Government or some agency on its behalf, is entitled to license their use for broadcasting on the terms it sees fit. A similar argument can now be deployed in respect of cable broadcasting where an authority must give permission before roads can be dug up for laying cable. The learned author states that the case is unconvincing for it infers that it is right for the Government to regulate broadcasting from the fact that it has opportunity to do this. It would be perfectly possible for Government to allocate frequencies for cable franchises without programme conditions on the basis of a competitive tender and allow the resale by the purchaser. The argument, according to the author, therefore, does not work. It does not justify broadcasting regulations but almost explains how it is feasible. The author, however, does not accept the objection to this reason for regulation that thereby Government acts improperly by using their licensing power to purchase broadcasters’ constitutional right to speech. According to the author, this argument is less persuasive as it assumes that broadcasters enjoy the same constitutional rights of free speech as individuals talking in a bar or leafletting in a high street. The author then deals with the second reason given for regulation of broadcasting, viz., scarcity of frequencies and points out that this argument referred to in Red Lion Broadcasting case [supra] is less clear than ap- pears at first sight, since it is not clear whether the scarcity of frequencies refers to the limited number allocated by the Government as available for broadcasting or to the actual numerical shortage of broadcasting stations. If it is the former, the scarcity is an artificial creation of the Government rather than a natural phenomenon since it reserves a number of frequencies for the use of the army, police and other public services.

The Government is then not in a good position to argue for restrictions on broadcasters’ freedom. The author then points out that as far as the actual scarcity of broadcasting stations is concerned, there has been an increase in the last 20 years in the broadcasting stations in the United States while there are fewer newspapers than there used to be. Similar developments have occurred in European countries in the same period, especially, since the advent of cable and satellite. Further the scarcity argument cannot be divorced from economic considerations. The shortage of frequencies and the high cost of starting up broadcasting channel explain their dearth in comparison with the number of newspapers and magazines in 1961. However, it is now probably as difficult to finance a new newspaper as it is a private television channel, if not more so. Lastly, the author points out that the scarcity argument is much less tenable than it used to be. Cable and satellite have significantly increased the number of available or potentially available channels so that there are more broadcasting outlets than there are national or local daily newspapers. Dealing with the third reason advocated for giving differential treatment to the broadcasting, viz., the character of the broadcasting media, the author points out that it is said that television and radio, are more influential on public opinion than the press, or at least are widely thought to be so. The majority of the US Supreme Court in FCC v. Pacifica Foundation [438 US 726] said that they intrude into the home and are more pervasive and are more difficult to control than the print media. In particular, it is hard to prevent children from being exposed to broadcast while it is relatively easy to stop them looking at magazines and papers which in any case they will not be able to read or purchase. These grounds underpin the extension of legal control in Britain over violent and sexually explicit programmes through the establishment of Broadcasting Standard Council and the strengthening of the impartiality rules. In Third Television Case [57 B Verf GE 295, 3 22-3 (198 1)] the Ger- man Constitutional Court dealing with a different version of this argument has held that regulation is necessary to guarantee pluralism and programme variety, whether or not there is a shortage of frequencies and other broadcasting outlets. The free market will not provide for broadcasting the same variety found in the range of press and magazine titles. Hence programme content should be regulated and the media monopolies should be cut down by the application of anti-trust laws. Thus both the US and the German arguments lay stress on the power of television and its unique capacity to influence the public. According to the learned author, the arguments are difficult to assess. Broadcasting does not intrude into the home unless listeners and viewers want it to be. From the point of view of constitutional principles it is not easy to justify imposition of greater limits on the medium on the ground that it is more influential than the written words.

It cannot be right to subject more persuasive types of speech to greater restraints than those-imposed on less effective varieties. The author, however, accepts the view of the majority of the US Supreme Court in Pacifica case [supra] which regarded broadcasting, particularly television, as a uniquely pervasive presence in the lives of most people. More time is spent watching television than reading. The presence of sound and picture in any home makes it an exceptional potent medium. It may also be harder to stop children having access to ’adult material’ on television than to pornographic magazines. This may not apply to subscription channels, enjoyment of which is dependent on a special decoder. He also agrees that experience in the United States and more recently in Italy suggests that a free broadcasting market does not produce the same variety as the press and book publishing markets do. However, the author states that these three justifications for broadcasting regulation are inconclusive and it is doubtful whether the case is powerful enough to justify the radically different legal treatment of the press and broadcasting media. A separate question, according to the author, is whether it is appropriate to continue to treat radio in the same way as television since there is generally a large choice of local, if not national radio programmes and it is hard to believe that it exercises a dominating influence on the formation of public attitudes. The same question arises In respect of cable television. Although a licence has to be obtained from a licensing authority, several franchises may be physically accommodated and a wide band cable system may be able to carry upto 30 or 40 or even more channels. The scarcity rational, therefore, seems inapplicable to cable, and further it is hard to believe that this mode of broadcasting exercises such a strong influence that stringent programme regulation is justifiable. Dealing with the last reason advocated by a leading American scholar, Lee Bollinger in his article “Freedom of the Press and Public Access” and his essay “The Rational of Public Regulation of the Media” and in “Democracy and the MassMedia” [Cambridge (1990)] for the divergent treatment of the press and broadcasting media, the author points out that Bollinger accepts that there is no fundamental difference in the character of the two mass media, but argues that broadcasting being still relatively new means of mass communication, it is understandable that society has wanted to regulate it just as it has treated the cinema with more caution than it has the theater. This argument of Bollinger is based on the history of the two media. Bollinger’s second argument is that society is entitled to remedy the deficiencies of an unregulated press with a regulated broadcasting system which may be preferable to attempting to regulate both sectors… According to Bollinger, regulation poses the danger of Government con- trol, a risk which is reduced if one branch of the media is left free. The author attacks this reason given by Bollinger and states that it is an unsatisfactory compro- mise. If the regulation of the press is always wrong and perhaps unconstitutional and if there is no significant difference between the two media, it follows that the latter should also be wholly unregulated. The author also points out that Bollinger’s argument attempts to justify the unequal treatment of the liberties of the broadcasters and newspaper proprietors and editors when in all material respects, their position is identical.

40. The author then refers to the rights of viewers and listeners which is referred to in Red Lion Broadcasting case [supra] by White, J. of the US Supreme Court in the following words:
“But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. It is the right of viewers and listeners, not the right of the broadcasters, which is paramount”.

41. The author concludes by pointing out that the cases from a variety of jurisdictions show that the broadcasters programme freedom when exercised within the constraints imposed by the regulatory authority, has priority over the rights claimed by viewers to see a particular programme or to retain a particular series in the schedule. On the other hand, the interests of viewers and listeners justify the imposition of programme standards which would not be countenanced for the press or publishing. It is recognised by the constitutional courts of European countries that viewers and listeners have interests, and they should be taken into account in the interpretation’ of broadcasting freedom. But the balancing of the rights of the broadcasters and viewers is done by regulatory authority. Courts are understandably reluctant to contemplate the interference with administrative discretion which would result from their recognition of individual rights.

42. Dealing with the right to access to broadcasting, the author points out that the theoretical argument in this connection is that freedom of speech means freedom to communicate effectively to a mass audience and nowadays that entails access to the mass media. The rights to access provide some compensation for the expropriation by the public monopoly of the freedom to broadcast. In the absence of a justification for that monopoly, there would be a right to broadcast in the same way that everyone has a right to say or write what he likes in his own home. This would justify the recognition of access to both public and private channels. The -author states that these arguments are unacceptable. Freedom of speech does not entail any right to communicate effectively in the sense that a citizen can call upon the State to provide him with the most effective means for the purpose. He points out that no legal system provides its citizens with the means and opportunities to address the Public in the way each considers most ap- propriate. Moreover, to grant everyone a right to use an access channel, even if available all the time, would be to give every adult a worthless right to use it for a second a year. Limited access rights, enjoyed only by important political and social groups may be more valuable. But even their recognition would involve some interference with the editorial freedom of channel controllers and programme schedulers and it may be more difficult as a Consequence to achieve a balanced range or programmes. Further, a channel might find it hard to create any clear identity for itself, if it had to devote a substantial amount of time to relaying the programmes made by pressure groups. There are also practical objections to access rights. It may be very difficult to decide, for example, which groups are to be given access, and when and how often such programmes are to be shown. There is a danger that some groups will be unduly privileged. These points weigh particularly heavily against the recognition of constitutional rights, for courts are not competent to formulate them with any precision. Dealing with the constitutional rights of access to the broadcasting media, the author concludes that individuals and groups do not have constitutional rights of access to the broadcasting media. Access rights can only be framed effectively by legislature or by specialist administrative agencies. It does not mean that statutory or other access rights do not have a constitutional dimension. The courts may lay down that some provisions should be made for access as a matter of constitutional policy. This, however, does not mean that there are individual constitutional rights to access.

43. In this connection, the author also points out that the development of cable poses new access problems. Operator of the cable may himself have rights of free speech which would be infringed by a requirement to honour access claims. The scarcity and economic arguments which are employed to justify broadcasting regulation and, therefore, access provision, may be less applicable in the context of cable.

44. We may now summarise the law on the freedom of speech and expression under Article 19 [1] (a) as restricted by Article 19 [2]. The freedom of speech and expression includes right to acquire information and to disseminate it. Freedom of speech and expression is necessary, for self expression which is an important means of free conscience and self fulfillment. It enables people to contribute to debates of social and moral issues. It is the best way to find a truest model of anything, since it is only through it, that the widest possible range of ideas can circulate.

It is the only vehicle of political discourse so essential to democracy. Equally important is the role it plays in facilitating artistic and scholarly endeavours of all sorts. The right to communicate, therefore, includes right to communicate through any media that is available whether print or electronic or audio-visual such as advertisement, movie, article, speech etc. That is why freedom of speech and expression includes freedom of the press. The freedom of the press in terms includes right to circulate and also to determine the volume of such circulation. This freedom includes the freedom to communicate or circulate one’s opinion without interference to as large a population in the country as well as abroad as impossible to reach.

45. This fundamental right can be limited only by reasonable restrictions under a law made for purpose mentioned in Article 19 [2] of the Constitution.

46. The burden is on the authority to justify the restrictions. Public order is not the same thing as public safety and hence no restrictions can be placed on the right to freedom of speech and expression on the ground that public safety is endangered. Unlike in the American Constitution, limitations on fundamental rights are specifi- cally spelt out under Article 19 [2] of our Constitution. Hence no restrictions can be placed on the right to freedom of speech and expression on grounds other than those specified under Article 19 [2].

47. What distinguishes the electronic media like they television from the print media or other media is that it has both audio and visual appeal and has a more pervasive presence. It has a greater impact on the minds of the viewers and is also more readily accessible to all including children at home. Unlike the print media, however, there is a built-in limitation on the use of electronic media because the airwaves are a public property and hence are owned or controlled by the Government or a central national authority or they are not available on account of the scarcity, costs and competition.

48. The next question to be answered in this connection is whether there can be a monopoly in broadcasting/telecasting. Broadcasting is a means of communication and, therefore, a medium of speech and expression. Hence in a democratic polity, neither any private individual, institution or Organisation nor any Government or Government Organisation can claim exclusive right over It. Our Constitution also forbids monopoly either in the print or electronic media. The monopoly permitted by our Constitution is only in respect of carrying on a trade, business, industry or service under Article 19 [6] to subserve the interests of the general public. However, the monopoly in broadcasting and telecasting is often claimed by the Government to utilise the public resources in the form of the limited frequencies available for the benefit of the society at large. It is Justified by the Government to prevent the concentration of the frequencies in the hands of the rich few who can information to suit their interests and thus in fact to control and manipulate public opinion in effect smothering the right to freedom of speech and expression and freedom of information of others. The claim to monopoly made on this ground may, however, lose all its raison d’etre if either any section of the society is unreasonably denied an access to broadcasting or the Governmental agency claims exclusive right to prepare and relay programmes. The ground is further not available when those claiming an access either do not make a demand on the limited frequencies controlled by the Government or claim the frequency which is not utilised and is available for transmission. The Government sometimes claims monopoly also on the ground that having regard to all pervasive presence and impact of the electronic media, it may be utilised for purposes not permitted by law and the damage done by private broadcasters may be irreparable. There is much to be said in favour of this view and it is for this reason that the regulatory provisions including those for granting licences to private broadcasting where it is permitted, are enacted. On the other hand, if the Government is vested with an unbridled discretion to grant or refuse to grant the license or access to the media, the reason for creating monopoly will lose its validity. For then it is the government which will be enabled to effectively suppress the freedom of speech and expression instead of protecting it and utilising the licensing power strictly for the purposes for which it is conferred. It is for this reason that in most of the democratic countries an independent autonomous broadcasting authority is created to control all aspects of the operation of the electronic media. Such authority is representative of all sections of the society and is free from control of the political and administrative executive of the State.

49. In this country, unlike in the United States and some European countries, there has been a monopoly of broadcasting/telecasting in the Government. The Indian Telegraph Act, 1885 [hereinafter referred to as the “Telegraph Act”] creates this monopoly and vests the power of regulating and licensing broadcasting in the Government. Further, the Cinematograph Act, 1952 and the Rules made thereunder empower the Government to pre-censor films. However, the power given to the Government to license and to pre-censor under the respective legislations has to be read in the context of Article 19 [2] of the Constitution which sets the parameters of reasonable restrictions which can be placed on the right to freedom of speech and expression. Needless to emphasise that the power to pre-censor films and to grant licences for access to telecasting, has to be exercised in conformity with the provisions of Article 19 [2]. It is in this context that we have to examine the provisions of Section 4 [1] of the Telegraph Act and the action of the MIB/DD in refusing access to telecast the cricket matches in the present case.

50. The relevant Section 4 of the Telegraph Act reads as follows:
“4.(1) Within India the Central Government shall have the exclusive privilege of establishing, maintaining and working tele- graphs:
Provided that the Central Government may grant a licence, on such conditions and in consideration of such payments as it thinks fit, to any person to establish, maintain or work a telegraph within any part of India Provided further that the Central Government may, by rules made under this Act and published in the Official Gazette, permit, subject to such restrictions and conditions as it thinks fit, the establishment, maintenance and working –
(a) of wireless telegraphs on ships within India territorial waters and on aircraft within or above India or Indian territorial waters and (b) of telegraphs other than wireless telegraph within any part of India.
(2) The Central Government may, by no- tification in the Official Gazette, delegate to the telegraph authority all or any of its powers wider the first proviso to sub-section (1).

The exercise by the telegraph authority of any power so delegated shall be subject to such restrictions and conditions the Central Government may, by the notification, think fit to impose.”

51. Section 3 (1) of the Act defines ’telegraph’ as under:
“3. (1) “telegraph” means any appliance, instrument, material or apparatus used or capable of use for transmission or reception of signs, signals, writing, images and sounds or intelligence of any nature by wire, visual or other electromagnetic emissions, Radio waves Hertzian waves, galvanic, electric or magnetic means.

Explanation.- “Radio waves” or “Hertzian waves” means electromagnetic waves of frequencies lower than 3,000 giga-cycles per second propagated in space without artificial guide.”

52. It Is clear from a reading of the provisions of Sections 4 [1] and 3 [1] together that the Central Government has the exclusive privilege of establishing, maintaining and working appliances, instruments, material or apparatus used or capable of use for transmission or reception of signs, signals, images and sounds or intelligence of any nature by wire, visual or other electromagnetic emissions, Radio wayes or Hertzian waves, galvanic, electric or magnetic means. Since in the present case the controversy centres round the use of airwaves or hertzian waves [hereinafter will be called as “electro-magnetic waves”], as is made clear by Explanation to section 3(1), the Central Government can have monopoly over the use of the electromagnetic waves only of frequencies lower than 3000 giga-cycles per second which are propagated in space with or without artificial guide. In other words, if the electromagnetic waves of frequencies of 3000 or more giga-cycles per second are propagated in space with or without artificial guide, or if the electro-magnetic waves of frequencies of less than 3000 give-cycles per second are propagated with an artificial guide, the Central Government cannot claim an exclusive right to use them or deny its user by others. Since no arguments were advanced on this subject after the closure of the arguments and pending the decision, we had directed the parties to give their written submissions on the point. The submissions sent by them disclosed a wide conflict which would have necessitated further oral arguments. Since we are of the view that the present matter can be decided without going into the controversy on the subject, we keep the point open for decision in an appropriate case. We will presume that in the present case the dispute is with regard to the use of electromagnetic waves of frequencies lower than 3000 giga- cycles per second which are propagated in space without artificial guide.

53. The first proviso to Section 4 (1) states that the Central Government may grant licence on such conditions and in consideration of such payment as it thinks fit, to any person, to establish, maintain or work a telegraph within any part of India. We are not concerned here with the permission to establish or maintain a telegraph because in the present case the permission is sought only for operating a telegraph and that too for a limited time and for a limited and specified purpose. The purpose again is non-commercial. It is to relay the specific number of cricket matches. It is only incidentally that the CAB will earn some revenue by selling its right to relay the matches organised by it. The CAB is obviously not a business or a commercial organisation nor can it be said that it is organising matches for earning profits as a business proposition. As will be pointed out later, it is a sporting Organisation devoted to the cause of cricket and has been organising cricket matches both of internal and international cricket teams for the benefit of the sport, the cricketers, the sportsmen present and prospective and of the viewers of the matches. The restrictions and conditions that the Central Government is authorised to place under S.
4 [1] while permitting non-wireless telegraphing can, as stated earlier, only be those which are warranted by the purposes mentioned in Article 19 [2] and none else. It is not and cannot be the case of the Government that by granting the permission in question, the sovereignty and integrity of India, the security of the State,friendly relations with foreign States, public order, decency or morality or either of them will be in jeopardy or that the permission will lead to the contempt of court, defamation or incitement to an offence. On the other hand, the arguments advanced are specious and with them we will deal a little later.

54. It is then necessary to understand the nature of the respondent Organisation, namely, CAB. It cannot be disputed that the BCCI is a non-profit making Organisation which controls officially organised game of cricket in India. Similarly, Cricket Association of Bengal (CAB) is also non- profit making Organisation which controls officially organised game of cricket in the State of West Bengal. The CAB is one of the Founder Members of BCCI. Office bearers and Members of the Working Committees of both BCCI and CAB are all citizens of India. The primary object of both the organisations, amongst others, is to promote the game of cricket, to foster the spirit of sportsmanship and the ideals of cricket, and to impart education through the media of cricket, and for achieving the said objects, to organise and stage tournaments and matches either with the members of International Cricket Council (ICC) or other organisations. According to CAB, BCCI is perhaps the only sports- organisation in India which cams foreign exchange and is neither controlled by any Governmental agency nor receives any financial assistance or grants, of whatsoever nature.

55. It cannot be disputed further that to arrange any international cricket tournament or series. it is necessary and a condition-precedent, to pay to the participating member countries or teams, a minimum guaranteed amount in foreign exchange and to bear expenses incurred for travelling, boarding, lodging and other daily expenses for the participating cricketeers and the concerned accompanying visiting officials. A huge amount of expenses has also to be incurred for organising the matches. In addition, both BCCI and CAB annually incur large amount of expenses for giving subsidies and grants to its members to maintain, de- velop and upgrade the infrastructure, to coach and train players and umpires, and to pay to them when the series and matches are played.

56. Against this background, we may now examine the questions of law raised by the parties. The contention of the Min- istry of Information and Broadcasting (MIB) is that there is a difference between the implications of the right conferred under Article 19 [1] (a) upon [i] the broadcaster i.e. the person operating the media, [ii] the person desiring access to the media to project his views including the organiser of an event, [iii] the viewer and [iv] a person seeking uplinking of frequencies so as to telecast signals generated in India to other countries. The contention of CAB that denial of a license to telecast through a media of its choice, based [according to NM] upon the commercial interests, infringes viewers’ right under Article 19 [1] (a) is untenable. It is further contended that the commercial interests of the organizer are not protected by Article 19 [1] (a). However, the contention of the CAB results indirectly in such protection being sought by resort to the following steps of reasoning : [a] the, Board has a right to commercially exploit the event to the maximum, [b] the viewer has a right to access to the event through the television. Hence the Board has the right to telecast through an appropriate channel and also the right to insist, that a private agency including a foreign agency, should be allowed all the sanctions and permissions as may be necessary therefor.

57. According to NUB the aforesaid contention is untenable because even if it is assumed that entertainment is a part of free speech, the analogy of the right of the press under Article 19 [1] (a) vis-a-vis the right under Article 19 [1] (g), cannot be extended to the right of sports associations. The basic premise underlying the recognition of the rights of the press under Article 19 [1] (a) is that the economic strength is vitally necessary to ensure independence of the press, and thus even the ’business’ elements of a newspaper have ’to some extent a ’free speech’ protection. In other words the commercial element of the press exists to subserve the basic object of the press, namely, free dissemination of news and views which enjoys the protection of free speech. However, free speech element in telecast of sports is incidental. According to the MIB, the primary object of the telecast by the CAB is to raise funds and hence the ac- tivities are essentially of trade. The fact that the profits are deployed for promotion of sports is immaterial for the purpose.

58. It is further urged that a broadcaster does not have a right as such to access to the airwaves without a license either for the purposes of telecast or for the purposes of uplinking. Secondly, there is no general right to a license to use airwaves which being a scarce resource, have to be used in a manner that the interests of the largest number are best served. The paramount interest is that of the viewers. The grant of a license does not confer any special right inasmuch as the refusal of a license does not result in the denial of a right to free speech. Lastly, the nature of the electronic media is such that it necessarily involves the marshaling of the resources for the largest public good. The state monopoly created as a device, to use the resource is not per se violative of the right of free speech as long as the paramount interests of the viewers are subserved and access to the media is governed by the fairness doctrine. According to the MIB, the width of the rights under Article 19 [1] (a) has never been considered to be wider than that conferred by the First Amendment to the U.S. Constitution. It is also urged that the licensing of frequencies and consequent regulation of telecast/broadcast would not be a matter covered by Article 19 [2]. The-right to telecast/broadcast has certain inherent limitations imposed by nature, whereas Article 19(2) applies to restrictions imposed by the State. The object of licensing is not to cast restrictions on the expression of ideas, but to regulate and Marshall scarce resources to ensure their optimum enjoyment by all including those who are not affluent enough to dominate the media.

59. It is next urged that the rights of an organiser to use airwaves as a medium to telecast and thereby propagate his views, are distinct from his right to commercially exploit the event. Although it is conceded that an organiser cannot be denied access on impermissible grounds, it is urged that he cannot further claim a right to use an agency of his choice as a part of his right of free speech. In any event no person can claim to exercise his right under Article 19 [1] (a) in a manner which makes it a device for a non- citizento assert rights which are denied by the Constitution. According to MIB, it is the case of the BCCI that to promote its commercial interest, it is entitled to demand that the Government grants all the necessary licenses and permissions to any foreign agency of its choice and a refusal to do so would violate Article 19 [1] (a). According to MIB, this is an indirect method to seek protection of Article 19 [1] (a) to the non-citizens.

60. It is then contended that a free speech right of a viewer has been recognised as that having a paramount im- portance by the US Supreme Court and this view is all the more significant in a country like ours. While accepting that the electronic media is undoubtedly the most powerful media of communication both from the perspective of its reach as well as its impact, transcending all barriers in- cluding that of illiteracy, it is contended that it is very cost-intensive. Unless, therefore, the rights of the viewers are given primacy, it will in practice result in the affluent having the sole right to air their views completely eroding the right of the viewers. The right of viewer can only be safeguarded by the regulatory agency by controlling the frequencies of broadcast as it is otherwise impossible for viewers to exercise their right to free speech qua the electronic media in any meaningful way.

61. Lastly, dealing with the contention raised on behalf of the CAB and BCCI that the monopoly conferred upon DD is violative of Article 19 [1] (a), while objecting to the contention on the ground that the issue does not arise in the present proceedings and is not raised in the pleadings, it is submitted on behalf of NM that the principal contentions of the CAB/BCCI are that they are entitled to market their right to telecast event at the highest possible value it may command and if the DD is unwilling to pay as much as the highest bidder, the CAB/BCCI has the right not only to market the event but to demand as of right, all the necessary licences and permissions for the agency including foreign agency which has purchased its rights. According to MIB these contentions do not raise any free-speech issues, but impinge purely on the right to trade. As far as Article 19 [1] (g) is concerned, the validity of the monopoly in favour of the Government is beyond question. Secondly, in the present case, the DD did not refuse to telecast the event per se. It is then submitted that the CAB/BCCI are not telecasters. They arc only organisers of the events sought to be telecast and when the agency like DD which has access to the largest number of viewers agrees to telecast the events, their right as well as the viewers’ right under Article 19 [1] (a) is satisfied. No organiser, it is contended, can insist that his event be telecast on terms dictated by him and refusal to agree to his term constitutes, breach of his right under Article 19 [1] (a). If it is accepted that the Government has not only the, right but the duty to regulate the distribution of frequencies, then the only way it can be done is by creating a monopoly. A mere creation of the monopoly-agency to tele- cast does not per se violate Article 19 [1] (a) as long as the access is not denied to the media either absolutely or by imposition of terms which are unreasonable. Article 19 [1] (a) proscribes monopoly in ideas and as long as this is not done, the mere -fact that the access to the media is through the Government-controlled agency, is not per se violative of Article 19 [1] (a).

It is further urged that no material has been placed before the Court to show that the functioning of the DD is such as to deny generally, an access to the media and the control exercised by the Government is in substance over the content on the grounds other than those specified in Article 19 [2] or a general permission to all who seek frequencies to telecast, would better subserve the principle underlying Article 19 [1] (a) in the socioeconomic scenario of this country and will not result in passing the control of the media from the Government to private agencies affluent enough to buy access.

62. As against these contentions of the MIB, it is urged on behalf of CAB and BCCI as follows:
The right to organise a sports event inheres in the entity to which the right belongs and that entity in this case is the BCCI and its members which include the CAB. The right to produce event includes the right to deal with such event in all manner and mode which the entity chooses. This includes the right to telecast or not to telecast the event, and by or through whom, and on what terms and conditions. No other entity, not even a department of the Government can coerce or influence this decision or obstruct the same except on reasonable grounds mentioned under Article 19 [2] of the Constitution. In the event the entity chooses to televise its own events, the terms and conditions for televising such events are to be negotiated by it with any party with whom it wishes to negotiate. There is no law, bye-law, rule or regulation to regulate the conduct of the BCCI or CAB in this behalf. In the event. BCCI chooses to enter into an agreement with an agency having necessary expertise and infrastructure to produce signals, and transmit and televise the event of the quality that BCCI/CAB desires, the terms and conditions to be negotiated with such an entity, are the exclusive privilege of BCCI/CAB. No department of the Government and least of all, the MIB or DD is concerned with the same and can deny the BCCI or CAB same, the benefit of such right or claim, much less can the MIB or DD can insist that such negotiation and finalisation only be done with it or not otherwise.

63. In the event the BCCI or CAB wishes to have the event televised outside India, What is required is that the required cameras and equipments in the field send signals to the earth station which in turn transmits the same to the appointed satellite. From the satellite, the picture is beamed back which can be viewed live by any person who has a TV set and has appropriate access to receive footprints within the beaming zone. In such case DD or the Ministry of Communications is not to provide any assistance either in the form of equipments or personnel or for that matter, in granting uplinking facility for televising the event.

64. It is further that the right to disseminate information is a part of the fundamental right to freedom of expression. BCCI/CAB have the fundamental right to televise the game of cricket organised and conducted by them for the benefit of public at large and in particular citizens of India who are either interested in cricket or desire to be educated and/or entertained. The said right is subject only to the regulations and restrictions as provided by Article 19(2) of the Constitution.

65. 65. At no other stage either the DD or MIB stated that reasonable restrictions as enumerated in Article 19 [2] arc being sought to be imposed apart from the fact that such plea could not have been taken by them in the case of telecasting sports events like cricket matches. It is urged that the sole ground on which DD/MIB is seeking to obstruct and/or refuse the said fundamental right is that the DD has the exclusive privilege and monopoly to broadcast such an event and that unless the event is produced, transmitted and telecast either by DD itself or in collaboration with it on its own terms and conditions and after taking signal from it on the terms and conditions it may impose, the event cannot be permitted to be produced, transmitted and telecast at all by anybody else.

66. It is also urged that there is no exclusive privilege or monopoly in relation to production, transmission or tele- casting and such an exclusivity or monopoly, if claimed , is violative of Article 19 [1] (a).

67 The BCCI and CAB have a right under Article 19 [1] (a) to produce, transmit, telecast and broadcast their event directly or through its agent. The right to circulate information is a part of the right guaranteed under Article 19 [1] (a). Even otherwise, the viewers and persons inter- ested in sports by way of education, information, record and entertainment have a right to such information, knowledge and entertainment. The content of the right under Article 19 [1] (a) reaches out to protect the information of the viewers also. In the present case, there is a right of the viewers and also the right of the producer to telecast the event and in view of these two rights, there is an obligation on the part of the Department of Telecom- munication to allow the telecasting of the event.

68. It is then contended that the grant of a licence under section 4 of the Act is a regulatory measure and does not entitle MIB either to deny a license to BCCI/ CAB for the purposes of production, transmission and telecasting sports events or to impose any condition unrelated to Article 19 [2]. If such denial or imposition is made, it would amount to a prohibition. Hence the NM is obliged and dutybound in law to grant licence against payment of fees related to and calculated on the basis of user of time only, as has been standardized and not otherwise. Any other method applied by MIB/DD would be violative of Article 19 [1] (a). The grant of license under section 4 of the Act has thus to be harmoniously read with the right of the citizen under Article 19 [1] (a). The Constitution does not visualize any monopoly in Article 19 [1] (a). Hence DD cannot claim the same nor can the commercial interest of DD or claim of exclusivity by it of generation of signals be a ground for declining permission under section 4 of the Act. Hence the following restrictions sought to be imposed fall outside the

ambit of Article 19(2) and are unconstitutional. The restrictions are:

(a) That unless BCCI or CAB televises the matches in collaboration with DD, a license shall not be granted.

(b) The DD alone will be the host broad- caster of the signals and BCCI/CAB or its agency must take the signal from DD alone and

(c) Unless the BCCI or CAB accepts 157the terms and conditions imposed by DD, the production of signal and transmission and telecast thereof shall not be permitted.

69. It is further contended that there is no monopoly in relation to what viewer must today view and the American decisions relied upon on behalf of MIB have no bearing on the present state of affairs. Satellite can beam directly on to television sets through dish antenna, all programmes whose footprints are receivable in the country. Further, any one can record a programme in India and then telecast it by sending the cassette out as is being done in the case of several private TV channels. Various foreign news orga- nizations such as the BBC and the CNN record directly Indian events and then transmit their own signals after a while to be telecast by their organizations.

70. Further, the non-availability of channel is of no consequence in the present days of technological development. Any person intending to telecast/broadcast an event can do so directly even without routing signal through the channels of DD or MIB. What is required to ensure is that the secured channel are not interfered with or overlapped. On account of the availability of innumerable satellites in the Geo-Stationary Orbit of the Hemisphere, the signals can directly be uplinked through any of the available transponders of satellite whose footprints can be received back through appropriate electronic device. As a matter of fact, beaming zone of only 3 satellites parked 3000 Kms. above the surface of the earth can cover the entire Hemisphere. Moreover, due to technological developments, frequency is becoming thinner and thinner and as a result, availability of frequencies has increased enormously and at present there are millions of frequencies available. In order to ensure that none of the footprints of any satellite overlaps the footprint of other satellite, each and every satellite is parked at a different degree and angle. Hence, there is no resource crunch or in-built restriction on the availability of electronic media, as con- tended by MIB. In this connection it is also pointed out that there is a difference in the right spelt out by Article 19 [1] (a) of our Constitution and that spelt out by the First Amendment of the American Constitution.

71. It is also contended that in no other country the right to televise or broadcast is in the exclusive domain of any particular body. In this connection, a reference is made to various instances in other countries where the host broadcaster has been other than the domestic network, which instances are not controverted. It is also urged that there is no policy of the Government of India as urged on behalf of the MIB that telecasting of sporting events would be within the exclusive domain and purview of DD/MIB who alone would market their rights to other authorities in whole or in part. It is pointed out that the extract from the minutes of the meeting of the Committee of Secretaries held on 12th November, 1993 relied upon by the MIB for the purpose is not a proof of such policy. The said minutes are ’executive decision’ of a few Secretaries of the various departments of the Government.

72. It is also urged that even public interest or interest of general public cannot be a ground for refusal or for the imposition of restrictions or for claiming exclusivity in any manner whatsoever. Such restriction, if imposed will be violative of Article 19[1] (a). To suggest that power to grant a license shall not be exercised under any circumstances because of the policy of the Government, is arbitrary inasmuch as the power conferred is not being used for the purpose for which it has been conferred.

73. It is then contended that both BCCI and CAB are non- profit making organizations and their sole object is to promote the game of cricket in this country and for that purpose not only proper and adequate infrastructures are required to be erected, built and maintained, but also huge expenses have to be incurred to improve the game which includes, amongst others, grant of subsidies and grants to the Member Associations, upgradation of infrastructure, training of cricketeers from school level, payments to the cricketeers, insurance and benevolent funds for the cricketeers, training of umpires, payments of foreign participants, including guarantee money etc. The quantum of amount to be spent for all these purposes has increased during the course of time. These expenses are met from the amounts earned by the BCCI and CAB since they have no other continuous source of income. The earnings of BCCI and CAB are basically from arranging various tournaments, instadia advertisements and licence fee for permitting telecast and censorship. At least 70 per cent of the income earned through the advertisements and generated by the TV network while telecasting of the matches, is paid to the organizer apart from the minimum guaranteed money as is apparent from the various agreements entered by and between BCCI/CAB as well as by DD with. other networks. The DD in effect desires to snatch away the right of telecast for its own commercial interest through advertisement, and at the same time also demand money from the organizers as and by way of production fee.

74. Merely because an organization may cam profit from an activity whose character is predominantly covered under Article 19 [1] (a), it would not convert the activity into one involving Article 19 [1] (g). The test of predominant character of the activity has to be applied. It has also to be ascertained as to who is the person who is utilizing the activity. If a businessman were to put in an advertisement for simpliciter commercial activity, it may render the activity, the one, covered by Article 19 [1] (g). But even newspapers or a film telecast or sports event telecast will be protected by Article 19 [1] (a) and will not become an activity under Article 19 [1] (g) merely because it earns money from advertisements in the process. Similarly, if the cricket match is telecast and profit is earned by the licensing of telecasting right and receipts from advertisements, it will be an essential element for utilization and fulfillment of its object. The said object cannot be achieved without such revenue.

75. Rebutting the argument that the Organisation of sports is an industry and, therefore, monopoly under Article 19 [6] is permissible, it is pointed out that even if, in matters relating to business and profession, the State can create monopoly under Article 19 [6], it can still not infringe Article 19 [1] (a). While the State may monopolise the textile industry, it cannot prohibit the publication of books and articles on textiles.

76. It is also contended that the exercise of right claimed in the present case is by BCCI/CAB and its office bearers who are citizens of India. Merely because foreign equipment and technical and personnel are used as collaborators to exercise the said right more effectively, it does not dilute the content of Article 19 [1] (a) nor does it become an exercise of right by a non-citizens. In this connection, it is emphasised that the DD is also using Worldtel, a foreign agency. Most of the newspapers in India are printed on machines imported from abroad. A newspaper may also have a foreigner as its manager. However, that does not take away the right of the newspaper under Article 19 [1] (a). They are only instances of technical collaboration. Apart from it, every citizen has a right to information as the same cannot be taken away on grounds urged by the NEB.

77. It will be apparent from the contentions advanced on behalf of MIB that their main thrust is that the right claimed by the BCCI/CAB is not the right of freedom of speech under Article 19 [1] (a), but a commercial right or the right to trade under Article 19 [1] (g). The contention is based mainly on two grounds viz., there is no free speech element in the telecast of sports and secondly, the primary object of the BCCI/CAB in seeking to telecast the cricket matches is not to educate and entertain the viewer but to make money.

78. It can hardly be denied that sport is an expression of self In an athletic Nor individual event, the individual expresses himself through his individual feat. In a team event such as cricket, football, hockey etc., there is both individual and collective expression. It may be true that what is protected by Article 19 [1] (a) is an expression of thought and feeling and not of the physical or intellectual prowess or skill. It is also true that a person desiring to telecast sports events when he is not himself a participant in the game, does not seek to exercise his right of self expression. However, the right to freedom of speech and expression also includes the right to educate, to inform and to entertain and also the right to be educated, informed and entertained. The former is the right of the telecaster and the latter that of the viewers. The right to telecast sporting event will therefore also include the right to edu- cate and inform the present and the prospective sportsmen interested in the particular game and also to inform and entertain the lovers of the game. Hence, when a telecaster desires to telecast a sporting event, it is incorrect to say that the free speech element is absent from his right. The degree of the element will depend upon the character of the telecaster who claims the right. An organiser such as the BCCI or CAB in the present case which are indisputably devoted to the promotion of the game of cricket, cannot be place in the same scale as the business organisations whose only intention is to make as large a profit as can be made by telecasting the game. Whereas it can be said that there is hardly any free speech element in the right to telecast when it is asserted by the latter, it will be a warped and cussed view to take when the former claim the same right, and contend that in claiming the right to telecast the cricket matches organised by them, they are asserting the right to make business out of it. The sporting organisations such as BCCI/ CAB which are interested in promoting the sport or sports are under an obligation to organise the sports events and can legitimately be accused of failing in their duty to do so. The promotion of Sports also includes its popularization through all legitimate means. For this purpose, they are duty bound to select the best means and methods to reach the maximum number of listeners and viewers. Since at present, radio and TV are the most efficacious methods, thanks to the technological development, the sports organisations like BCCI/CAB will be neglecting their duty in not exploring the said media and in not employing the best means available to them to popularise the game. That while pursuing their objective of popularising the sports by selecting the best available means of doing so, they incidentally earn some revenue, will not convert either them into commercial organisations or the right claimed by them to explore the said means, into a commercial right or interest. It must further be remembered that sporting organisations such as BCCI/CAB in the present case, have not been established only to organise the sports events or to broadcast or telecast them. The organisation of sporting events is only a part of their various objects, as pointed out earlier and even when they organise the events, they are primarily to educate the sportsmen, to promote and popularise the sports and also to inform and entertain the viewers. The Organisation of such events involves huge costs. Whatever surplus is left after defraying all the expenses, is ploughed back by them in the Organisation itself It will be taking a deliberately dis- torted view of the right claimed by such organisations to telecast the sporting event to call it an assertion of a commercial right. Yet the MIB has chosen to advance such contention which can only be described as most unfortunate. It is needless to state that we are, in the circumstances, unable to accept the ill-advised argument. It does no credit to the Ministry or to the Government as a whole to denigrate the sporting organisations such as BCCI/CAB by placing them on par with business organisations sponsoring sporting events for profit and the access claimed by them to telecasting as assertion of commercial interest.

79. The second contention of NM is based upon the propositions laid down by the US Supreme Court, viz., there are inherent limitations imposed on the right to telecast/broadcast as there is scarcity of resources, i.e. of frequencies, and therefore the need to use them in the interest of the largest number. There is also a pervasive presence of electronic media such as TV. It has a greater impact on the minds of the people of all ages and strata of the society necessitating the prerequisite of licensing of the programmes. It is also contended on that account that the licensing of frequencies and consequent regulation of telecasting/broadcasting would not be a matter governed by Article 19 [2]. Whereas Article 19 [2] applies to restric- tions imposed by the State, the inherent limitations on the right to telecast/broadcast are imposed by nature.

80. In the first instance, it must be remembered that all the decisions of the US Supreme Court relied upon in support of this contention, are on the right of the private broadcasters to establish their own broadcasting stations by claiming a share in or access to the airwaves or frequen- cies. In the United States, there is no Central Government- owned or controlled broadcasting centre. There is only a Federal Commission to regulate broadcasting stations which are all owned by private broadcasters. Secondly, the American Constitution does not explicitly state the restrictions on the right of freedom of speech and expression as our Constitution does. Hence, the decisions in question have done no more than impliedly reading such restrictions. The decisions of the U.S. Supreme Court, therefore, in the context of the right claimed by the private broadcasters are irrelevant for our present purpose. In the present case, what is claimed is a right to an access to telecasting specific events for a limited duration and during limited hours of the day. There is no demand for owning or controlling a frequency. Secondly, unlike in the cases in the US which came for consideration before the US Supreme Court, the right to share in the frequency is not claimed without a license. Thirdly, the right to use a frequency for a limited duration is not claimed by a business Organisation to make profit and lastly and this is an important aspect of the present case, to which no reply has been given by the MIB, there is no claim to any frequency owned and controlled by the Government. What is claimed is a permission to uplink the signal created by the organiser of the events to a foreign satellite.

81. There is no doubt that since the airwaves/frequencies are a public property and are also limited, they have to be used in the best interest of the society and this can be done either by a central authority by establishing its own broadcasting network or regulating the grant of licences to other agencies, including the private agencies. What is further, the electronic media is the most powerful media both because of its audio-visual impact, and its widest reach covering the section of the society where the print media does not reach. The right to use the airwaves and the content of the programmes therefore, needs regulation for balancing it and as well as to prevent monopoly of informa- tion and views relayed, which is a potential danger flowing from the concentration of the right to broadcast/telecast in the hands either of a central agency or of few private affluent broadcasters. That is why the need to have a central agency representative of all sections of the society free from control both of the Government and the dominant influential sections of the society. This is not disputed. But to contend that on that account the restrictions to be imposed on the right under Article 19 [1] (a) should be in addition to those permissible under Article 19 [2] and dictated by the use of public resources in the best interests of the society at large, is to misconceive both the content of the freedom of speech and expression and the problems posed by the element of public property in, and the alleged scarcity of, the frequencies as well as by the wider reach of the media. If the right to freedom of speech and expression includes the right to disseminate information to as wide a section of the population as is possible, the access which enables the right to be so exercised is also an integral part of the said right. The wider range of circulation of information or its greater impact cannot restrict the content of the right nor can it justify its denial. The virtues of the electronic media cannot become its enemies. It may warrant a greater regulation over licensing and control and vigilance on the content of the programme telecast. However, this control can only be exercised within the framework of Article 19 [2] and the dictates of public interests. To plead for other grounds is to plead for unconstitutional measures. It is further difficult to appreciate such contention on the part of the Government in this country when they have a complete control over the frequencies and the content of the programme to be telecast. They control the sole agency of telecasting. They are also armed with the provisions of Article 19 [2] and the powers of pre-censorship under the Cinematograph Act and Rules. The only limitations on the said right is, therefore, the limitation of resources and, the need to use them for the benefit of all. When, however, there are surplus or unlimited resources and the public interests so demand or in any case do not prevent telecasting, the validity of the argument based on limitation of resources disappears. It is true that to own a frequency for the purposes of broadcasting is a costly affair and even when there are surplus or unlimited frequencies, only the affluent few will own them and will be in a position to use it to subserve their own interest by manipulating news and views. That also poses a danger to the freedom of speech and expression of the have-nots by denying them the truthful information on all sides of an issue which is so necessary to form a sound view on any subject, That is why the doctrine of fairness which is evolved in the U.S. in the context of the private broadcasters licensed to share the limited frequencies with the central agency like the FCC to regulate the programming. But this phenomenon occurs even in the case of the print media of all the countries. Hence the body like the Press Council of India which is empowered to enforce, however imperfectly, the right to reply. The print media further enjoys as in our country, freedom from pre-censorship unlike the electronic media.

82. As -stated earlier, we are not concerned in the present case with the right of the private broadcasters, but only with the limited right for telecasting particular cricket matches for particular hours of the day and for a particular period. It is not suggested that the said right is objectionable on any of the grounds mentioned in Article 19 [2] or is against the proper use of the public resources. The only objection taken against the refusal to grant the said right is that of the limited resources. That objection is completely misplaced in the present case since the claim is not made on any of the frequencies owned, controlled and utilised by the D.D. The right claimed is for uplinking the signal generated by the BCCI/CAB to a satellite owned by another agency. The objection, therefore, is devoid of any merit and untenable in law. It also displays a deliberate obdurate approach.

83. The third contention advanced on behalf of the MIB is only an extended aspect of the fist contention. It is based on the same distorted interpretation of the right claimed. It proceeds on the footing that the BCCI/CAB is claiming a commercial right to exploit the sporting event when they assert that they have a right to telecast the event through an agency of their choice. It is even contended on behalf of the MIB that this amounts to a device for a non-citizen to assert rights under Article 19 [1] .(a) which are not available to him.

84. It is unnecessary to repeat what we have stated while dealing with the first contention earlier, with regard to the character of BCCI/CAB, the nature of and the purpose for which the right to access to telecast is claimed by them. As pointed out, it is not possible to hold that what the BCCI/CAB are in the present cast claiming is a commercial right to exploit the event unless one takes a perverse view of the matter. The extent of perversity is apparent from the contention raised by them that to engage a foreign agency for the purpose is to make it a device for a noncitizen to assert his rights under Article 19 [1] (a). It cannot be denied that the right to freedom of speech and expression under Article 19 [1] (a) includes the right to disseminate information by the best possible method through an agency of one’s choice so long as the engagement of such agency is not in contravention of Article 19 [2] of the Constitution and does not amount to improper or unwarranted use of the frequencies. Hence the choice of BCCI/ CAB of a foreign agency to telecast the matches, cannot be objected to. There is no suggestion in the present case that the engagement of the foreign agency by the BCCI/CAB is violative of the provisions of Article 19 [2]. On the other hand, the case of NUB, as pointed out earlier, is that the BCCI/CAB want to engage the foreign agency to maximise its revenue and hence they are not exercising their right under Article 19 [1] (a) but their commercial right under Article 19 [1] (g). We have pointed out that that argument is not factually correct and what in fact the BCCI/CAB is asserting is a right under Article 19 [1] (a). While asserting the said right, it is incidentally going to earn some revenue. In the circumstances, it has the right to choose the best method to earn the maximum revenue possible. In fact, it can be accused of negligence and may be attributed improper motives, if it fails to explore the most profitable avenue of telecasting the event, when in any case, in achieving the object of promoting and popularising the sports, it has to endeavour to telecast the cricket matches. The record shows that all applications were made and purported to have been made to the various agencies on behalf of CAB for the necessary licences and permissions. All other Ministries and Departments understood them as such and granted the necessary permissions and licences. Hence, by granting such permission, the Government was not in fact granting permission to the foreign agency to exercise its right under Article 19 [1] (a). If, further, that was the only objection in granting permission, a positive approach on the part of the NM could have made it clear in the permission granted that it was being given to CAB. In fact, when all other Government Departments had no difficulty in construing the application to that effect and granting the necessary sanctions/permissions at their end, it is difficult to understand the position taken by the MIB in that behalf. One wishes that such a contention was not ad- vanced.

85. The fourth contention is that, as held by the US Supreme Court, the freedom of speech has to be viewed also as a right of the viewers which has a paramount importance, and the said View has significance in a country like ours. To safeguard the rights of the viewers in this country, it is necessary to regulate and restrict the right to access to telecasting. There cannot be any dispute with this proposition. We have in fact referred to this right of the viewers in another context earlier. True democracy cannot exist unless all citizens have a right to participate in the affairs of the polity of the country. The right to participate in the affairs of the country is meaningless unless the citizens are well informed on all sides of the issues, in respect of which they are called upon to express their views. One-sided information, disinformation, misinformation and non-information all equally create an uninformed citizenry which makes democracy a farce when medium of information is monopolised either by a partisan central authority or by private individuals or oligarchic organisations. This is particularly so in a country like ours where about 65 per cent of the population is illiterate and hardly 1-1/2 per cent of the population has an access to the print media which is not subject to precensorship. When, therefore, the electronic media is controlled by one central agency or few private agencies of the rich, there is a need to have a central agency, as stated earlier, representing all sections of the society. Hence to have a representative central agency to ensure the viewers’ right to be informed adequately and truthfully is a part of the right of the viewers under Article 19 [1] (a). We are, however, unable to appreciate this contention in the present context since the viewers’ rights are not at all affected by the BCCI/CAB, by claiming a right to telecast the cricket matches, On the other hand, the facts on record show that their rights would very much be trampled if the cricket matches are not telecast through the D.D., which has the monopoly of the national telecasting network. Although, there is no statistical data available [and this is not a deficiency felt only in this arena], it cannot be denied that a vast section of the people in this country is interested in viewing the cricket matches. The game of cricket is by far the most popular In all parts of the country. This is evident from the over-flowing stadia at the venues wherever the matches are played and they are played all over the country. It will not be an exaggeration to say that at least one in three persons, if not more, is interested in viewing the cricket matches. Almost all television sets are switched on to view the matches. Those who do not have a T.V. set of their own, crowd around T.V. sets of others when the matches are on. This is not to mention the number of transistors and radios which are on during the match-hours. In the face of these revealing facts, it is difficult to understand why the present contention with regard to the viewers’ right is raised in this case when the grant of access to BCCI/CAB to telecast cricket matches was in the interest of the viewers and would have also contributed to promote their rights as well.

86. The last argument on behalf of the MIB is that since in the present case, the DD has not refused to telecast the event, its monopoly to telecast cannot be challenged and in fact no such contention was raised by the BCCI/CAB. We are afraid that this will not be a proper reading of the contentions raised by BCCI/CAB in their pleadings both before the High Court and this Court. Undisputed facts on record show that the DD claimed exclusive right to create host broadcasting signal and to telecast it on the terms and conditions stipulated by it or not at all. MIB even refused to grant uplinking facilities when the terrestrial signal was being created by the CAB with their own apparatus, i.e., the apparatus of the agency which they had engaged and when the use of any of the frequencies owned, controlled or commanded by DD or the Government, was not involved. Since BCCI/CAB were the organisers of the events, they had every right to create terrestrial signals of their event and to sell it to whomsoever they thought best so long as such creation of the signal and the sale thereof was not violative of any law made under Article 19 [2] and was not an abuse of the frequencies which are a public property. Neither DD nor any other agency could impose their terms for creating signal or for telecasting them unless it was sought through their frequencies. When the DD refused to telecast cricket matches except on their terms, the BCCI/CAB turned to another agency, in the present case a foreign agency, for creating the terrestrial signal and telecasting it through the frequencies belonging to that agency. When the DD refused to telecast the matches, the rights of the viewers to view the matches were in jeopardy. Only the viewers in this country who could receive foreign frequencies on their TV sets, could have viewed the said matches. Hence it is not correct to say that the DD had not refused to telecast the events. To insist on telecasting events only on one’s unreasonable terms and conditions and not otherwise when one has the monopoly of telecasting, is nothing but refusal to telecast the same. The DD could not do it except for reasons of non-availability of frequencies or for grounds available under Article 19(2) of the Constitution or for considerations of public interest in- volved in the use of the frequencies as public property. The fact that the DD was prepared to telecast the events only on its terms shows that the frequency was available. Hence, scarcity of frequencies or public interests cannot be pressed as grounds for refusing to telecast or denying access to BCCl/CAB to telecasting. Nor can the DD plead encroachment on the right of viewers as a ground since the telecasting of events on the terms of the DD cannot alone be said to safeguard the right of viewers in such a case and in fact it was not so.

87.Coming to the facts of the present case, which have given rise to the present proceedings, the version of MIB is as follows: On March 15, 1993, the CAB wrote a letter to the Director General of Doordarshan that a Six-Nation International Cricket Tournament will be held in November, 1993 as a part of its Diamond Jubilee Celebrations and asked DD to send a detailed offer for any of the two alternatives, namely, (i) that DD would create ’Host Broadcaster Signal’ and also undertake live telecast of all the matches in the tournament or (ii) any other party may create the ’Host Broadcaster Signal’ and DD would only purchase the rights to telecast in India. CAB in particular emphasised that in either case, the foreign T.V. rights would be with CAB. The CAB also asked DD to indicate the royalty amount that would be paid by the DD. On March 18, 1993 the Controller of Programmes (Sports), DD, replied to the letter stating amongst other things that during the meeting and during the telephonic conversation, CAB’s President Dalmia had agreed to send them in writing the amount that he expected as rights fee payable to CAB exclusively for India, without the Star TV getting it. On March 19, 1993, CAB informed DD that they would be agreeable to DD creating the Host Broadcaster Signal and also granting DD exclusive right for India without the Star TV getting it and the CAB would charge DD US $800,000 (US Dollars eight lakh] only] for the same. The CAB, however, made it clear that they would reserve the right to sell/li- cense the right world-wide, excluding India and Star TV. The CAB also stated that DD would be under an obligation to provide a picture and commentary subject to payment of DD’s technical fees. On March 31, 1993, DD sent its bid as ’Host Broadcaster’ for a sum of Rs. 1 crore stating inter alia, that CAB should grant signals to it exclusively for India without the Star TV getting it. The DD also stated that they would be in a position to create the ’Host Broadcaster Signal’ and offer a live telecast of all the matches in the tournament. Thereafter, on May 4, 1993, the DD by a fax message reminded the President of CAB about its offer of March 31, 1993. To that CAB replied on May 12, 1993 that as the Committee of CAB had decided to sell/allot worldwide TV rights to one party only, they would like to know whether DD would be interested in the deal and, if so, to send their offer for worldwide TV rights latest by May 17, 1993, on the following basis, namely, outright purchase of TV rights and sharing of rights fee. On May 14, 1993 DD by its fax addressed to CAB stated that it was committed to its earlier bid of Rs. 1 crore, namely, exclusive TV right in India alone. The DD also stated that as there was a speculation that Pakistan may not participate in the tournament, which may affect viewership and consequent commercial accruals, DD would have to rethink on the said bid also, in such an even- tuality and requested CAB to reply to the said letter at the earliest.

88. On June 14, 1993, according to the NUB, without obtaining the required clearances from the Government for telecasting, the CAB entered into an agreement with the World Production Establishment (W/PE) representing the interests of TWI [Trans World International], for telecasting all the matches. The said agreement provided for the grant of sole and exclusive right to sell/licence or otherwise exploit throughout the world ’Exhibition Rights’ in the tournament. CAB shall only retain radio rights for the territory of India. The CAB under the agreement was to receive not less than US $550,000 as guaranteed sum. If any income from the rights fee is received in excess of the guaranteed sum, it was to be retained wholly by WPE until it was eventually split into 70:30 per cent as per the agree- ment. If the rights fee/income received was less than guaranteed sum, WPE was to pay the difference to CAB. The WPE was to pay, where possible, television license fee in advance of the start of the tournament.

89. On June 18, 1993, DD sent a fax to CAB stating therein that from the press reports, it had learnt that CAB had en- tered into an agreement with TWI for the TV coverage of the tournament, and the DD had decided not to telecast the matches of the tournament by paying TWI, and that DD was not prepared to enter into any negotiations with TWI to obtain the television rights for the event. On June 30, 1993, DD also informed similarly to International Management Group, Hong Kong.

90. On September 2, 1993, the Department of Youth Affairs and Sports, Ministry of Human Resources Development, addressed a letter to the CAB informing it that the Government had no objection to the proposed visit of the Cricket Teams of Pakistan, South Africa, Sri Lanka, West Indies and Zimbabwe, to India for participation in the tournament. The Department further stated that no foreign national shall visit any restricted/protected/prohibited area of India without permission from the Ministry of Home Affairs. It was also clarified that the sanction of foreign exchange was subject to the condition that CAB would utilize only the minimum foreign exchange required for the purpose and shall deposit foreign exchange obtained by it by way of fee, sponsorship, advertisements, broadcasting rights, etc. through normal banking channels under intima- tion to the Reserve Bank of India. On September 17, 1993 on the application of CAB made on September 7, 1993, VSNL ad- vised CAB to approach the respective Ministries and the Telecom Commission for approval (a) regarding import of earth station and transmission equipment and (b) for frequency clearance from Telecom Commission. The satellite to be used for the transmission coverage, was also required to be specified. It was further stated that CAB should approach VSNL for uplinking signal to INTELSAT at Wash- ington. The TWI was advised to apply VSNL for necessary coordination channels and DD phone facility covering each location. On October 9, 1993, TWI wrote to VSNL seeking frequency clearance from the Ministry of Communications. The TWI informed VSNL that they will be covering the tournament and that they were formally applying for its per- mission to uplink their signal as per the list attached to the letter. They also sought frequency clearance for the walkie-talkie .On October 13, 1993, the Ministry of Home Affairs informed the CAB that the Ministry had ’no objection’ to the filming of the cricket matches at any of the places mentioned in the CAB’s letter and that the ’no objection’ pertains to the filming of the matches on the cricket grounds only. The Ministry also gave its ’no objec- tion’ to the use of walkie-talkie sets in the play grounds during the matches subject to the permission to be obtained from WPC.

91. On October 18, 1993, the CAB addressed a letter to DD for telecasting rights for telecasting matches mentioning its earlier offer of rights for telecasting and pointed out that the offer of Rs.10 million made by DD vide its fax message dated March 31, 1993 and on the condition the CAB should not grant any right to Star TV was uneconomical, and considering the enormous organizational cost, they were looking for a minimum offer of Rs.20 million. The CAB also pointed out that the offers received by them from abroad including from TWI, were much higher than Rs.20 million and that the payment under the offers would be made in foreign exchange. The CAB also stated that they were given to understand that DD was not interested in increasing their offer and hence they entered into a contract with TWI for telecasting the matches. However, they were still keen that DD should come forward to telecast the matches since otherwise people in India would be deprived of viewing the same. Hence they had made TWI agree to co-production with DD and they also prayed the DD for such co-production. The CAB’s letter further stated that during a joint meeting the details were worked out including the supply of equipment list by the respective parties, and it was decided in principle to go for a joint production. The CAB stated that it was also agreed that DD would not claim exclusive right and CAB would be at liberty to sell the rights to Star TV. Thereafter CAB learnt from newspaper reports that DD had decided not to telecast the matches. Hence they had written a letter to DD dated September 15, 1993 to confirm the authenticity of such news, but they had not received any reply from DD. It was pointed that in the meanwhile they had been repeatedly approached by Star TV, Sky TV and other network to telecast matches to the Indian audience and some of them on an exclusive basis. But they had not taken a decision on their offers, since they did not want to deprive DD’s viewers. It was further recorded that the CAB had also learnt recently that DD would be interested in acquiring the rights of telecast provided it was allowed to produce the matches directly, and the matches produced by TWI were made available to it live, without payment of any technical fees. After recording this, the CAB made fresh set of proposals, the gist of which was as follows:

1. TWI and Doordarshan would cover 9 (nine) matches each in the tournament independently, which are as follows:

Trans World International November

08 South. Africa v. Zimbabwe (Bangalore)

11 India v. S. Africa (Delhi Chandigarh)

13 W.Indies v. S.Africa (Bombay, Brabourne)

16 Pakistan v. S.Africa (Cuttack)

19 S.Africa v.Sri Lanka (Guwahati)

21 India v. Pakistan (Chandigarh)

23 First Semi Final (Calcutta)

– Second Semi Final (Calcutta)

– Final (Calcutta) Doordarshan November

07 India v. Sri Lanka (Kanpur)

09 W.Indies v. Sri Lanka (Bombay,Wankhede)

15 Sri Lanka v. Zimbabwe (Patna)

16 India v. W. Indies (Ahmedabad)

18 India v. Zimbabwe (Indore)

21 W. Inidies v.Zimbabwe (Hyderabad)

2. TWI will do the coverage of thesematches with their own equipment, crew and commentators. Similarly, Doordarshan will also have their own crew, equipment and commentators for the matches produced by them.

3. Doordarshan will be at liberty to use their own commentators for matches produced by TWI for telecast in India. Similarly, TWI may also use their own commentators if they televised matches produced by Doordarshan in other networks.

4. TWI will allow Doordarshan to pick up the Signal and telecast live within India, free of charges. Similarly, Doordarshan will allow TWI to have the Signal for live/recorded/highlights telecast abroad, free of charges.

5. Doordarshan will not pay access fees to CAB, but shall allow 4 minutes advertising time per hour (i.e. 28 minutes in 7 hours). The CAB will be at liberty to sell such time slot to the advertisers and the proceeds so received will belong to CAB.

6. Contract will be entered upon by the CAB and Doordarshan directly for the above arrangements. TWI will give a written undergoing for the coverage breakup as
mentioned in point 1.

7. Score Card and Graphics shall be arranged by CAB and the expenses for such production or income derived from sponsorship shall be on the account of CAB. Both TWI and Doordarshan will use such Score Cards and Graphics as arranged by CAB.

92. The CAB requested the DD to communicate their final decision in the matter before October 21, 1993.

93. On October 26, 1993 VSNL sent a communication to INTESLSAT at Washinton seeking information of uplinking timings for TV transmission asked for by CAB/TWI. On October 27, 1993 the Telecommunications Department sent a letter to the Central Board of Excise and Customs on the question of temporarily im- porting electronic production equipment required for transmission of one-day matches of the tournament and conveying ’ no objection’ of the Ministry of Communications to the proposal, subject to the organizers coordinating with WTC (DoT) for frequency clearance, from the “Standing Advisory Committee on Frequency Allocation (SACFA)”, for TV up-linking from different places and coordinating with VSNL, Bombay for booking TV transponders.

94. On October 27, 1993, DD informed CAB with reference to its renewed offer of October 18, 1993 that the terms and conditions of the offer were not acceptable to it and that they have already intimated to them that DD will not take signal from TWI – a foreign Organisation. They also made it clear that they had not agreed to any joint production with TWI. On October 29, 1993, CAB replied to DD that they were surprised at the outright rejection of the various alternative proposals they had submitted. They had pointed out that the only reason given for rejection was that DD will not take signals from TWI, which was a foreign organi- zation. Since they had also suggested production of live matches by DD the question of taking signal from TWI did not arise. CAB further stated that purely in deference to DD’s sensitivity about taking signal from TWI, CAB would be quite happy to allow DD to produce its own picture of matches and DD may like to buy rights and licenses from CAB at ’a price which will be mutually agreed upon, and that these rights would be on nonexclusive basis on Indian territory. On October 30, 1993, DD sent a message to CAB stating that DD will not pay access fee to CAB to telecast the matches. However, for DD to telecast the matches live, CAB has to pay technical charges/ production fee at Rs.5 lakh per match. In that case DD will have exclusive rights for the signal generated and the parties interested to take the signal will have to negotiate directly with the DD. On October 31, 1993 DD sent a fax message to CAB to the same effect.

95. On November 1, 1993 VSNL deputed its engineers/staff to be at the venues where the matches were being played to coordinate with TWI for TV coverage. On November 2, 1993, TWI paid US $29,640 and [Pounds] 121,400 to VSNL as fees for INTELSAT charges. On the same day, the Finance Ministry permitted the equipment of TWI to be imported on certain conditions by waiving the customs and additional duties of customs. On November 4, 1993, CAB addressed a letter to DD referring to DD’s fax message of October 31, 1993 asking for certain clarification on the offer made by DD. In this letter, CAB stated that since, DD had asked for fees for production and telecast of matches, it was presumed that all revenue generated from the matches or entire timeslot for advertisements, would belong to CAB and that they shall have the right to charge access fees including other charges from parties abroad, and DD would telecast those matches for which CAB will pay the charges. The choice of the matches to be telecast by DD would be determined by CAB. On No- vember 5, 1993, the DD rejected the terms.

96. On November 8, 1993, CAB filed a writ petition in the Calcutta High Court praying, among others, that the respondents should be directed to provide telecast and broadcast of all the matches and also provide all arrangements and facilities for telecasting and broadcasting of the matches by the agency appointed by the CAB, VI_., TWI. Interim reliefs were also sought in the said petition. On the same day, the High Court directed the learned advocate of the Union of India to obtain instruc- tions in the matter and in the meanwhile. passed the interim orders making it clear that they would not prevent DD from telecasting any match without affecting the existing arrangements between CAB and TWI. The writ petition was posted for further hearing on November 9, 1993 on which day, the learned Single Judge confirmed the interim orders passed on November 8, 1993 and respondents were restrained from interfering with the frequency lines given to respondents NO.10 [TWI]. On 10th November, 1993, VSNL advised INTELSAT at Washington seeking cancellation of its request for book- ing. On November 11, 1993, the learned Judge partly allowed the writ by directing All India Radio to broadcast matches. On November 12, 1993 in the appeal filed by the Union of India against the aforesaid orders of the Division Bench, the High Court passed interim order to the following effect: (a)that CAB would pay DD a sum of Rs.5 lakh per match and the revenue collected by DD on account of sponsorship will be kept in separate account.

(b) that DD would be the host broadcaster.

(c) that Ministry of Telecommunication would consider the question of issuing a license to TWI under the Telegraphs Act and decide the same within three days.

97. On November 12, 1993, the Film Facilities Officer of the MIB informed the Customs Department at New Delhi, Bombay and Calcutta airports, that as TWI had not obtained required clearances from the Government for the coverage of the tournament, they should not be permitted to remove exposed film outside India till it was cleared by the Government. On the same day, DD asked the CAB providing various facilities at each match venue as this was pre-requisite for creating host broadcaster signal in India. CAB sent a reply on the same day and called upon the DD to telecast matches within India pursuant to the High Court’s order. On the same day again the Collector of Customs, Bombay called upon CAB to pay customs duty on the equipment as there was a breach in the terms of the, exemption order.

98. On the same day, i.e., November 1993, again the Committee of Secretaries decided that the telecast of all sporting events would be within the exclusive purview of the DD/MIB. It was also decided that for the purposes of obtaining necessary clearances for telecasting different types of events for the country, a Single Window service would be followed where the concerned Administrative Min- istry would be the ’Nodal’ Ministry to which’ the application will be submitted and it would thereafter be the function of the ’Nodal’ Ministry to obtain permissions from the concerned Ministry/Agencies.

99. On 14th November, 1993, the High Court in clarification of its order of November 12, 1993 directed, among others, as follows:

[a] In case the signal is required to be generated by TWI separately, such necessary permission should be given by DD and/or other competent authorities. .

[b] The differences with regard to the placement of cameras etc., if any, between cricket authority and DD should be mutually worked out, and if this cannot be done, the dispute should be decided by the Head of the Police in the place where the match was being played.

[c] The equipment of TWI which had been seized by the Customs Authority should be released upon undertaking that the same would not be used for any. other purpose and

[d] The VSNL should take proper steps for uplinking, and should not take any steps to defeat the orders of the Court. The TWI should comply with all financial commitments to VSNL.

100. On November 15, 1993, the CAB and another filed the present Writ Petition No. 836 of 1993. On November 15. 1993, this Court passed an order directing the Secretary Ministry of Communications to hold meeting on the same day by 4.30 P.M. and communicate his decision by 7.30 P.M. The Customs Authorities were directed to release the equipments. On the same day at night another order was passed partly staying the orders of the Chairman, Telecommunications and Secretary, Dot. TWI was permitted to generate its own signals and Customs Authorities were directed to release the goods forthwith.

101. , The DD filed Contempt Petition in the High Court on the same day against CAB and another, for noncompliance with the orders of the High Court. The DD also filed the present Special Leave Petitions in this Court on the same day.

102. What emerges from the above correspondence is as follows. The CAB as early as on 15th March, 1993, had offered to the DD two alternatives, viz., either the DD would create host broadcaster signal and undertake live telecast of all the matches in the tournament or any other party may create the host broadcaster signal and DD would purchase from the said party the rights to telecast the said signal in India. The CAB made it clear that in either case, the foreign TV rights would remain with it. The CAB also asked the DD to indicate the royalty that it will be willing to pay in either case. To that, on 18th March, 1993, the DD rejoined by asking in turn the amount of royalty that the CAB expected if the rights were given to it exclusively for India without the. Star TV getting it. On 19th March, 1993, the CAB informed the DD that they would charge US $8 lakhs for giving the DD the right to create the host broadcaster signal and also for granting it exclusive right for India without the Star TV getting it It was however, emphasised that the CAB would reserve the right to sell/license the right of broadcasting worldwide excluding India and the Star TV. The CAB also stated that the DD would be under an obligation to provide a picture and commentary subject to payment of DD’s technical fees. On 31st March, 1993, the DD sent its bid as host broadcaster for a sum of Rs.1 crore [i.e.. about US $3.33 lakhs at the then exchange rate]. Obviously, this was less than 50 per cent of the royalty which was demanded by the CAB. The CAB was, therefore, justified in looking for other alternatives and that is what they did before the DD by a fax message of 4th May, 1993 reminded the CAB about DD’s offer of Rs. 1 crore [i.e., US $3.33 lakhs]. To that message, the CAB replied on 12th May, 1993 that it had decided to sell/allot worldwide TV rights to only one party and, therefore, they would like to know whether the DD would be interested in the said deal and if so, to send their offer for worldwide TV rights, latest by 17th May, 1993. To this, on 14th May, 1993, the DD by Fax, replied that it was interested only in exclusive TV rights for India alone without the Star TV getting it and that it stood by its earlier offer of Rs. 1 crore [i.e., US $3.33 lakhs]. The DD went further and stated that as there was a speculation that-Pakistan might not participate in the tournament which eventuality was likely to affect viewership and commercial accruals, it will have to rethink on that bid also meaning thereby that even the offer of Rs. 1 crore may be reduced.

103. According to the MIB, the CAB, thereafter, entered into an agreement with World Production Establishment representing the interests of TWI for telecasting all the matches without obtaining clearance from the Government for telecasting, and granted TWI sole and exclusive right to sell or otherwise exploit all exhibition rights of the tournament. Under the agreement with TWI, the CAB was to receive US $ 5.50 lakhs as guaranteed sum and in addition, if any rights fee income was received in excess of the guaranteed sum, it was to be. split in the ratio of 70:30 between the parties, i.e. 70 per cent to the CAB and 30 per cent to TWI. Learning of this, the DD informed the CAB that it had decided not to telecast the matches of the tournament by paying TWI TV rights fee and that it was not prepared to enter into any negotiations with TWI for the purpose.

104. Again on 18th October, 1993, CAB addressed a letter to DD for telecasting the matches mentioning its earlier offer of rights for telecasting and pointed out that the offer of Rs. 1 crore made by DI) on the condition that the CAB should not grant any right ’to Star TV was uneconomical. CAB also pointed out that considering the enormous organisational costs involved, they were looking for a minimum offer of Rs.20 million.In this connection, they pointed out that the offers received by them from abroad-including from TWI were much higher than Rs.20 million and under those offers, the payment was also to be received in foreign exchange. The CAB further stated in that letter that they were given to understand that DD was not interested in increasing their offer and hence they entered into a contract with TWI for telecasting the matches. Yet, they were keen that DD should telecast the matches since otherwise people in India would be deprived of viewing the same. They had, therefore, made the TWI agree for co-production with DD. They, therefore, requested the DD to agree to such co-production. The CAB also stated in the said letter that in fact in a joint meeting, details of such arrangement were worked out including the supply of equipment list by the respective parties and it was decided in principle to go in for joint production. In the meeting, it was further agreed that DD would not claim exclusive rights and the CAB would be at liberty to sell the rights to Star TV. However, since subsequently they had learnt from newspaper reports that DD had decided not to telecast the matches, by their letter of 15th September, 1993 they had asked DD to confirm the authenticity of the news items. The DD, however, had not responded to the said letter. In the meanwhile, many other networks had repeatedly approached them for telecasting matches to the Indian audience and some of them on exclusive basis. But they had still kept the matter pending since they did not want to deprive the viewers of the DD of the matches. They further added that they had also learnt that DD would be interested in acquiring rights of telecast provided it was allowed to produce some matches directly and the matches produced by TWI are made available to it live without payment of any technical fee. The CAB, therefore, in the circumstances, suggested a fresh set of proposals for DD’s consideration and requested response be- fore 21st October, 1993. On 27th October, 1993, DD responded to the said letter in the negative and stated that the offer made was not acceptable to it and they had already communicated to that effect earlier, stating that they will not take any signal from TWI. DD further denied that they had agreed to any joint production with TWI. The CAB by its letter of 29th October, 1993 pointed out, in response to this letter, that since they had also suggested production of live matches by DD, question of taking signals from TWI did not arise, and in deference to DD’s sensitivity about taking signals from TWI, CAB would be quite happy to allow DD to produce its own picture of matches and DD may buy rights and licences from it at a price which will be mutually agreed upon.

105. Thus, the controversy between the parties was with regard to the terms for the telecasting of the matches. It must be noted in this connection that the DD had never stated to the CAB that it had no frequency to spare for telecasting the matches. On the other hand, if the CAB had accepted the terms of the DD, DD was ready to telecast the matches. Therefore, the argument based on resource crunch as advanced on behalf of the MIB/ DD, is meaningless in the present case.

106. All that we have to examine in the present case is whether the MIB/DD had stipulated unreasonable conditions for telecasting the matches. It is apparent from the above correspondence between the parties that CAB wanted a minimum of U.S. $8 lakhs, i.e., Rs.2.40 crores. However, DD insisted that it would be the host broadcaster and will have exclusive telecasting rights for India and for these rights. it will pay only Rs. 1 crore. i.e. US $3.33 lakhs. It had also threatened to reduce the said offer of Rs. one crore because Pakistan was not likely to participate in the tournament. When it was pointed out by the CAB that this offer was uneconomical taking. into consideration the enormous costs involved and that they were looking for a minimum of Rs. 2 crores and had received higher offers from other parties under which the payments will also be made in foreign exchange, DD stuck to its earlier offer and refused to raise it. In the meanwhile, the CAB received an offer of U.S. $5.50 lakhs, i.e., Rs. 1.65 crores from TWI as guaranteed sum plus a share to the extent of 70 per cent in the rights income fee. The CAB being the sole organiser of the event had every right to explore the maximum revenue possible and there was nothing wrong or improper in their negotiating with TWI the terms and conditions of the deal. However, the only response of DD to these arrangements which were being worked out between the CAB and TWI was that it would not telecast the matches of the tournament by paying TWI the fees for purchasing the rights from that Organisation. Even then the CAB did not shut its doors on DD, and by its letter of 18th October, 1993 informed the DD that it was keen that DD should telecast the matches so that people in India are not deprived of viewing the matches. They also informed the DD that it was with this purpose that they had made TWI agree for co-production with the DD and had made a fresh set of proposals. However, these proposals were on materially different terms. To this, the DD replied by its letters of 27th October, 1993 that the terms and conditions of the offer were not ac- ceptable to it. The CAB by its letter of 29th October, 1993 again offered the DD that if their only objection was to taking signals from TWI, since they had suggested production of live matches by DD in their fresh proposals, there was no question of taking signals from TWI and they should reconsider the proposals. To this, the only reply of the DD was that they will not pay any Access Fee to CAB to telecast the matches and if DD were to telecast the matches, the CAB will have to pay Technical/Production Fee at the rate of Rs.5 lakhs per match, and in that case the DD will have exclusive rights for the signal generated, and the parties interested will have to take the signals from the DD after negotiating directly with it. In other words, the DD took the stand that not only it will not pay any charges to the CAB for the rights of telecasting the matches, but it is CAB which will have to pay the charges, and that the DD will be the sole producer of signals and others will have to buy the signals from it..

107. Thus the correspondence between the parties shows that each of the parties was trying to score over the other by taking advantage of its position. The blame for the collapse of the negotiations has to be shared by both. The difference, if any, was only in the degree of unreasonableness. If anything, this episode once again emphasises the need to rescue the electronic media from the government monopoly and bureaucratic control and to have an independent authority to manage and control it.

108. Coming now to the change in the, stand of the other Departments of the Government for granting facilities to the agency engaged by the CAB, the facts make a revealing reading. The actions of the various Departments of the Government, referred to earlier, show firstly, that the Min- istries of Human Resources Development, of Home Affairs, of Finance, of Communications, and the VSNL had no objection whatsoever to the arrangements which the CAB had entered into with TWI, the foreign agency, for covering the cricket matches. In fact they granted all the necessary permissions and facilities to the CAB/TWI in all respects subject to certain conditions with which neither the CAB nor TWI had any quarrel. Secondly, these various Departments had accepted TWI as the agency of CAB for the purposes of the said coverage and they had no objection to the TWI covering the matches on the ground that it was a foreign agency. This was the situation till the writ petition was filed by the CAB in the Calcutta High Court on 8th November, 1993. It is necessary to remember in this connection that the decision or the DD to intimate CAB that it will not pay even access fee to the CAB to telecast the tournament and that it was for the CAB to pay the technical/pro- duction fee of Rs. 5 lakhs per match with DD having exclusive right for the signal generated, and others will have to buy it after negotiating directly with the DD, was taken on 30th/31st October, 1993. It is in that context that further developments which are relevant for our purpose and which took place during the pendency of the Court proceedings, have to be viewed. It is only on 12th November, 1993 that the Committee of Secretaries came out with the concept of the ! nodal ministry. By itself, the decision to form the nodal ministry to coordinate the activities of all the concerned ministries and departments is unexceptional. But the time of taking the decision and its background was not without its significance. However, there is no adequate material on record to establish a nexus between the MIB/DD and the aforesaid actions of the other authorities.

109. The nexus in question was sought to be established by the CAB by pointing out to the letter addressed by the Deputy Secretary in MIB with the approval of the Secretary, of that Ministry to Department of Youth Affairs and Sports of the Ministry of Human Resources Development. It in terms refers to the meeting of the committee of Secretaries on 12th November, 1993 and states that according to the so- called “extant policy” of the Government, as endorsed by the Committee of Secretaries, the telecasting of sporting events is within the exclusive purview of DD/MIB. Accordingly, the NIB opposes the grant of any permission to M/s. WPE or its agency TWI or any Indian company to cover the matches for general reception in India through uplinking facility except in collaboration with DD with only the latter being the sole agency entrusted with the task of generating TV signal from the venue of the matches. It further states that the MIB opposes [i] import of any satellite earth station for the coverage of the series, [ii] the grant of any ad-hoc exemption for the import of equipment by WTE or TWI without their first producing the approval of the competent authority permitting its use within India, in terms of the provisions of Indian Telegraph Act, 1885 and the Wireless Telegraph Act, 1933 in the absence of which possession of such equipment within India constitutes an offence, [iii] M/s. WTE or TWI being permitted to undertake shooting of the cricket matches at different places and grant of visa or RAP to its personnel for visiting India, and [iv] the grant of any permission to any aircraft leased by M/s. WPE/TWI for landing at any international or national airport.

110. It was urged that the question of the absence of permission/licence of the requisite authorities under the Indian Telegraph Act and the Wireless Telegraph Act was never raised or made a ground for denial of the right to the BCCI/CAB to telecast the matches or to uplink the signal through TWI till after CAB had approached the Calcutta High Court on 8th November, 1993. It was contended that the MIB woke up suddenly to the relevant provisions of the statute after the Court proceedings. We are, however, not satisfied that these events conclusively establish that the other Departments acted at the behest of the DD/MIB.

111. The circumstances in which the High Court case to pass its interim order dated 12th November, 1993 may now be noticed. The MIB and DD’s appeals are directed against the said order ’and writ petition is filed by the CAB for direction to respondent Nos. 1 to 9, which include, among others, Union of India.

112. In the writ petition filed by the CAB before the High Court on 8th November, 1993, the learned Single Judge on the same day passed an order of interim injunction commanding the respondents to provide all adequate facilities and cooperation to the petitioner and/or their appointed agency for free and uninterrupted telecasting and broadcasting of the cricket matches in question to be played between 10th and 20th November, 1993, and restrained the re- spondents from tampering with, removing, seizing or dealing with any equipment relating to transmission, telecasting or broadcasting of the said matches, belonging to the CAB and their appointed agency, in any manner whatsoever. On the next day, i.e., 9th November, 1993 the said interim order was made final. On the 11th November, 1993, on the application of the CAB complaining that the equipment brought by their agency, viz., TWI [respondent No. IO to the petition] were seized by the Bombay Customs authorities under the direction issued by the Ministry of Communications and the MIB, another order was passed by the learned Judge directing all Government authorities including Customs authorities to act in terms of the interim orders passed earlier on 8th/9th November, 1993. While passing this order in the presence of the learned counsel for the respondents who pleaded ignorance about the seizure of the equipment by the Customs authorities, the learned Single Judge observed, among other things, as follows:

“It is submitted by the learned Counsel on behalf of the respondent that since Doordarshan has been denied telecasting of the tournament by the respondent No. 6, Akasliban has also decided to stop broad- casting and in support of his contention has produced a letter dated 10th of November, 1993 issued by the Station Director, Calcutta, for Director General, All India Radio to Shri S.K. Kundu, Central Government’s Advocate whereupon it appears that it was admitted, that All India Radio had planned to provide running commentary of the matches of the above tournament organised by the Cricket Association of Bengal, but as Doordarshan was denied the facility of nominating the Host Broadcaster’s Signal and it consequently decided not to cover those matches, All India Radio also had decided to drop the coverage of those matches since the principles on which Doordarshan based its decision, viz.,, the protection of inherent interest of the National Broad- casters to generate the signal of sports, applied equally to the All India Radio.

I fail to understand the logic behind the said letter and the stand taken by the All India Radio in the matter which appears to me wholly illogical and ridiculous, Doordarshan might have some dispute with the…. regarding the right to be the Host Broadcasters Signal including financial questions, but the All India Radio, which itself volunteered to broadcast the matches themselves, and when, admittedly, no financial transaction is involved between the All India Radio and the respondent No.6, denial of the All India Radio to broadcast the said matches only on the ground that since Doordarshan was denied by the respondent No.6 to be 1 the Host Broadcaster’s Signal, the All India Radio stopped broadcasting the matches following the same principle, ap- pears to be absolutely whimsical and capricious.
x x x x x x

Such denial by the All India Radio certainly is an act done against the public interest and thus cannot be supported and/or upheld to deprive the general people of India of such small satisfaction…

x x x x x x

Accordingly, I find the action of the All India Radio in stopping the broadcasting of aforesaid tournament is wholly illegal, arbitrary and mala fide….
This writ application accordingly succeeds and allowed to the extent as stated above, and let a writ in the nature of mandamus to the extent indicated above be issued.”

113. The Union of India preferred an appeal against the said decision and in the appeal moved an application for staying the operation of the orders passed by the learned Single Judge on 8th/9th November, 1993. Dealing with the said application, the Division Bench in its order dated
other things, as follows:

“Mr. R.N. Das, learned Counsel appearing for and on behalf of the Union of India and others including the Director General of Doordarshan, appearing with Mr. B. Bhattacharya and Mr. Prodosh Mallick submitted inter alia, that the Doordarshan authority is very much inclined and keen to telecast the Hero Cup matches in which several parties from abroad are participating including India. But it was pointed out that the difficulties have been created by Cricket Association of Bengal in entering into an agreement with Trans World International [UK] Inc. World Production the respondent No.10 of the writ petition wherein the Cricket Association of Bengal has given exclusive rights to telecast to that authority. It was submitted by Mr. Das that under Section 4 of the Indian Telegraph Act, 1885 the Central Government have the exclusive privilege of establishing, maintaining and working telegraph and that it was further submitted that the expression telegraph includes telecasts through Doordarshan. it was further provided that proviso to Section 4 [1] of the said Act provides that the Central Government may grant a licence on such conditions and in consideration of such payments as it thinks fit to any person to establish, maintain or work a telegraph within any part of India. Relying upon the provisions it was submitted that neither the CAB nor the TWI respondent No. 10 of the writ application have obtained any licence for the purpose of telecasting the matches direct from India.”

114. The Court then referred to the correspondence between the CAB and the DD between 31st March, 1993 and 31st Octo- ber, 1993 and the letters of no objection issued to the CAB by the Ministry of Communications and the VSNL and to the acceptence by the VSNL of the payments from TWI as per the demand of the VSNL itself for granting facilities of uplinking the signal and recorded its primafacie finding that the DD was agreeable to telecast matches live for India on a consideration of Rs.5 lakhs per match which was ac- cepted under protest and without prejudice by the CAB and the only dispute was with regard to the revenue to be earned through advertisements during the period of the matches. The Court said that it was not adjudicating on as to what and in what manner the revenue through advertisements would be created and distributed between the parties. It left the said points to be decided on merits in the appeal pending before it and proceeded to observe as follows:

“… but it present having regard to the interest of millions of Indian viewers who are anxiously expecting to see such live telecast, we record as Doordarshan is inclined to telecast the matches for the Indian viewers on receipt of Rs.5 lakh per match and to enjoy the exclusive right of signalling within the country being host broadcaster, we direct the CAB to pay immediately a sum of Rs.5 lakhs per match for this purpose and the collection of revenue on account of sponsorship or otherwise in respect of 28 minutes which is available for commercial purpose be realised by the Doordarshan on condition that such amount shall be kept in a separate account and shall not deal with and dispose of the said amount until further orders and we make it clear regarding the entitlement and the manner in which the said sum will be treated would abide by the result of the appeal or the writ appli- cation. Accordingly, it is made clear that Doordarshan shall on these conditions start immediately telecasting the live matches of the Hero Cup for the subsequent matches from the next match in India. Mr. Das Id. counsel appearing on behalf of the appellant submits that they were in a position technically or otherwise to telecast immediately. With regard to the right of TWI to telecast the matches outside India is concerned, we also record that on time of hearing the counsel appearing on behalf of the appellant showed an order in three lines that the authority concerned has summarily and without giving any reason and/or any hearing whatsoever directed to VSNL not to allow the TWI to transmit or to telecast from India in respect of the Hero Cup matches but it was submitted by the learned Counsel appearing for the appellant that they are very much keen to consider the matter in proper perspective in accordance with laws, having regard to the national impact on this question. It appears that on the basis of the representation made by VSNL, TWI came into the picture and subsequently TWI entered into an agreement with the CAB. At this stage, we are not called upon to decide the validity or otherwise of such an agreement entered into by the parties. As a matter of fact, we are refer- ring this without prejudice to the rights and contentions of the parties. It further appears that the Government of India through the Department of Communication stated that the said department had no objection with regard to the permission to the CAB for temporarily importing electronic product equipments required for transmitting one day matches of the Hero Cup as a part of Diamond Jubilee Celebration to be started from November 7 to 27, 1993, the Ministry has no objection to proposal “subject to the organisers Co-ordinating with WPC [DOT] for frequency clearance from the Standing Advisory Committee on frequency allocation {SACFA} for TV uplinking from different places and coordinating with VSNL, Bombay for booking of TV transponders etc. It appears that the said no objection certificate has created a legitimate expectation, particularly in view of the fact that the money demanded by VSNL in this behalf was duly paid by TWI and all ar- rangements have been made by TWI for performing the job. As we find that no formal permission is required under proviso to Section 4 [1] of Indian Telegraph Act is there in favour of the party, having regard to the facts stated above and having regard to National and International impact on this question and having regard to the fact that any decision taken will have the tremendous impact on the International sports, we direct the appellant No.5 who is respondent No.6 in the writ application. The Secretary, Ministry of Telecommunication, Sanchar Bhavan, New Delhi, Government of India to consider the facts and circumstances of the case clearly suggesting that there had already been an implied grant of permission, shall grant a provisional permission or licence without prejudice to the rights and contentions of the parties in this appeal and the writ application and subject to the condition that the respondent No.6 in the writ application will be at liberty to impose such reasonable terms and condi- tions consistent with the provision to Section 4 [1]of the Indian Telegraph Act, having regard to the peculiar facts and circumstances of the case. If TWI comply with such terms and conditions that may be imposed without prejudice to their rights and contentions in the interest of sports and subject to the decision in this appeal or the writ application shall be entitled to telecast for International viewers outside India. The Secretary, Ministry of Telecommunication, Sanchar Bhavan, New Delhi, Government of In- dia, is directed to decide this question as directed by us within three days from today and all the parties will be entitled to be heard, if necessary. We must put in on record our anxiety that the matter should be taken in the spirit of sports not on the spirit of prestige or personal interest and should approach the problem dispassionately rising above all its narrow interest and personal ego….. In order to comply with this order any order of detention of the equipments of TWI should not be given effect to.”

115. The Court also made it clear that in order to comply with its order, any order of detention of the equipments of TWI should not be given effect to. Notwithstanding this order or probably in ignorance of it, the Collector of Customs, Bombay wrote to the CAB that it had given an undertaking to fulfill all the conditions of the ad hoc order dated 2nd November, 1993 under which exemption was given to it for importing the equipments. However, it had not fulfilled the conditions laid down at [1] and [iii] of para 2 of the said ad hoc exemption order and, therefore, it should pay an amount of Rs.3,29,07,711/as customs duty on the equipment imported by TWI. They also threatened that if no such duty was paid, the goods would be confiscated. In view of the said show cause notice, the CAB moved the Division Bench and on 14th November, 1993. The lawyer of TWI also wrote a letter in the meanwhile on 13th November, 1993 to the Customs authorities at Bombay stating therein that as TWI had sent a letter enclosing a copy of the order of the Division Bench passed on 12th November, 1993
directing them not to give effect to the detention of the equipments and complaining that in spite of it they had not released the goods and, therefore, they had committed a con- tempt of the Court. This grievance of CAB and TWI along with the complaint of the DD for not permitting them to place their cameras at the requisite places, were heard by the Division Bench on 14th November, 1993 when the match was already being played in Bombay. The Bench observed that the Court was given to understand that none of the parties was inclined to go higher up against its earlier order and that what was required was certain clarification of that order in the changed circumstances. The learned counsel for the CAB stated that they were not going to oppose the DD placing their cameras but the dispute had arisen as to the signalling to be made for the telecast. According to the learned counsel for the Union of the India, there could be only one signalling from the field and DD should be treated as host broadcaster and the TWI should take signal from it. This was opposed by the learned counsel for the CAB who con- tended. that DD had been given exclusive right as host broadcaster so far as the telecasting of matches in India was concerned. The telecasting of matches abroad was to be done by TWI. The Division Bench held that the DD will have the exclusive right of signalling for the purposes of telecasting within the country, and they were to be treated as host broadcasters so far as telecasting within India was concerned. As far as TWI is concerned, if it was authorised and permitted in terms of their earlier order, it would be entitled to telecast outside the country and to send their signal accordingly. They also stated that in case the signalling was required to be made by the TWI separately the necessary permission should be given by the DD or other competent authorities. They resolved the dispute with regard to the placement of cameras by directing that DD will have first priority and if there was any dispute on that account it would be resolved by the local head of the Police Administration at the venue concerned. They also directed the Customs authorities, Bombay to release the equipments imported for the purposes of TWI with the condition that the said equipments will be used only for transmission of the matches and they shall not deal with or dispose of the said equipments or remove it outside the country without the permission of the Court. In particular, they also directed the VSNL to take proper steps for uplinking and not to take any step to defeat the purpose.

116. Against the said order of the Division Bench, the present appeals are preferred by the Ministry of Information and Broadcasting and others whereas the writ petition is filed by the CAB for restraining the respondents, (which include, among others, Union of India [No. 1], Secretary, Ministry of Information & Broadcasting [No.2], Director General, Doordarshan [No.3], Secretary, Ministry of Communi- cations [No.5], Director, Department of Telecommunications [No.6], and Videsh Sanchar Nigam Limited [No.9], from pre- venting, obstructing and interfering with or creating any hurdles in the implementation of agreement dated 14.6.1993 between the petitioner-CAB and respondent No. 10, i.e., TWI.

117. The matter was heard by this Court on 15th November, 1993. It appears from the record that although the High Court had directed the Secretary, Ministry of Communications to decide the question of granting of licence under Section 4 [1] of the Telegraph Act within 3 days from 12th November, 1993 by its order of the same day, the Secretary had fixed the meeting for consideration of the application only on the 16th November, 1993. ’Mat itself was a breach of the High Court’s order. This Court, therefore, directed the Secre- tary to hear the matter at 4.30 p.m. on 15th November, 1993 and communicate its decision to TWI or its counsel or to the CAB or its counsel immediately thereafter but before 7.30 p.m. on the same day. This Court also directed the Customs authorities to release the equipment forthwith which they had not done in spite of the High Court’s order. The TWI and CAB were, however, restrained from using the said equipment till the licence was issued by the Secretary, Department of Telecommunication.

118. Pursuant to the direction given by this Court, the Secretary by his order of 15th November, 1993 after referring to the judgment of the High Court and its impli- cation and after taking into consideration the arguments of the respective parties, held as follows:

“In this connection, we have to take into account an important point brought to our notice by the Director General Doordarshan. It is true that Section 4 of the Indian Telegraph Act of 1885 enables the government to give licences to agencies other than Doordarshan or the government departments to telecast. In fact, such a permission had been given in January 1993 when the cricket matches were telecast by the same TWI. However, subsequently, I am given to understand that the government policy in the Ministry of I&B has been that the uplinking directly by private parties/foreign agencies from India for the purpose of broadcasting should not be permitted.

It is true that in a cricket match we are not considering security aspects. But, the point to be considered is whether uplinking. given in a particular case will have its consequences on other such claims which may not be directly linked to sports and which will have serious implications. Within the government, as per Allocation of Business Rules, it is the Ministry of I&B which has the responsibility for formulation and implementation of the policies relating to broadcasting/telecasting.

As was made clear earlier, in this case, we are considering two aspects. One is the generation of signals and the second is their communication. The Department of Telecommunication comes in the picture so far as the communication aspect is concerned.

Taking into account the facts mentioned above, the only reasonable conclusion I reach is that permission may be given to TWI for telecast overseas through the VSNL, while Doordarshan will be telecasting within the country. The TWI will have to get the signals from Doordarshan for uplinking through the VSNL by making mutual arrangements. So far as VSNL is concerned, there should be no difficulty in transmitting the signals through Intelsat as already agreed upon.

In my view, the above decision takes into account the needs of the millions of viewers both within the country and abroad who are keen to watch the game and at the same time ensures that there is no conflict with the broad government policy in the Ministry of I&B which is entrusted with the task of broadcasting. It also takes into account the overall aspects and the reasonable expectation created within the TWI by the series of clearances given by the different authorities of the Government of India”.

119. This order which was passed around 7.30 p.m. was challenged by the CAB, and being an urgent matter, was heard by the Court late at night on the same day. The Court stayed the order of the Secretary to the extent that it imposed a condition that the TWI will have to get the signals from the DD for uplinking through the VSNL by making mutual arrangements. The Court directed that the TWI can generate its own signal by focusing its cameras only on the ground where the matches were being played, as directed by the Ministry of Home Affairs and that they will take care not to focus their cameras anywhere else.

120. For telecasting the triangular series and the West Indies tour to India in 1994 season, the same disputes arose between the parties. By their letter of 25th August, 1994, the BCCI requested the Director, Sports, of the Ministry of Human Resources Development, Department of Youth Affairs and Sports to grant permission to it or TWI/SPN to telecast the triangular series and matches to be played between India and West Indies. By their letter of 30th August, 1994 written to the Secretary, Department of Sports, the MIB opposed the grant of uplinking facilities to any foreign agency. On 14th September, 1994, Ishan Television India Ltd. [with a tie-up with ESPN which had contract with BCCI, applied to the VSNL for uplinking facilities for telecasting of the said matches. The VSNL thereafter wrote to the NM for their “no objection” and the NUB opposed the grant of “no objection” certificate and objected to VSNL writing to the MIB directly for the purpose. The MM also stated that their view in the matter was very clear that satellite uplinking from Indian soil would be within the exclusive competence of the MIB/DoT/DOS-and that the telecast of sporting events would be the exclusive privilege of DD. By their letter of 26th September, 1994, the ’nodal’ Ministry, i.e., Ministry of Human Resources Development [Department of Youth Affairs and Sports addressed to all the Ministries and Departments including the MIB called for the remarks on the letter of the BCCI addressed to the nodal Ministry. The MIB again wrote to the Sports Department of the nodal Ministry, opposing grant of Single Window service to the BCCI. On 3rd October, 1994, the VSNL returned the advance which it had received from Ishan TV for uplinking facilities. On 7th October, 1994, this Court passed the following order:

“Pending the final disposal of the matters by this interim order confined to telecast the International Cricket Matches to be played in India from October 1994 to December 1994, we direct respondent Nos. 1 and 6 to 9 in Writ Petition No.836/ 93 to grant forthwith necessary permission/sanctions and uplinking facilities for production, transmission and telecasting of the said matches.

We also direct respondent Nos.2, 3 and 4 in writ petition No.836/93 and all other Government Agencies not to obstruct/restrict in any manner whatsoever production, transmission and telecasting of the said matches for the said period by the petitioner-applicant only on the ground where the Cricket Matches would be played and the signals are generated under the direct supervision of the VSNL personnel.

So far as the production, transmission and telecasting of these matches in India is concerned, the Doordarshan shall have the exclusive right in all respects for the purpose, and the petitioner-applicant shall not prevent Doordarshan from doing so, and in particular shall afford all facilities for Doordarshan to do so.

So far as the placement of cameras are concerned both petitioner-applicant as well as Doordarshan shall have equal rights. This shall be ensured by Shri Sunil Gavaskar in consultation with such technical experts as he may deem necessary to consult. He is requested to do so. As far as the remuneration for Shri Sunil Gavaskar and the technical expert is concerned, both Doordarshan as well as the petitioner- applicant will share the remuneration equally which will be fixed by this Court.

As regards the revenue generated by the advertisement by Doordarshan is concerned, Doordarshan will deposit the said amount in a separate account and preferably in a nationalised Bank. The Doordarshan will have the exclusive right to advertisement. All the IAs are disposed of accordingly”.

121. Since certain disputes arose between the parties, on 18th October, 1994, this Court had to pass the following order:
“The BCCI will ensure that all Cricket Associations and staging Centres shall extend every facility to the personnel authorised by the Doordarshan to enter into the Cricket Ground for production, transmission and telecasting of the matches without any late or hindrance.

The BCCI will also ensure that all Cricket Associations staging the matches will make available every facility and render such assistance as may be necessary and sought by the Doordarshan for effective telecasting of the matches at the respective grounds and stadia.

The BCCI shall not permit the ESPN to enter into any contract either with A.T.N. or any other Agency for telecasting in any manner all over India, whether through the Satellite footprints or otherwise, Cricket Matches which are being telecast in India by the Doordarshan. If the ESPN has entered into any such contract either with A.T.N. or any other Agency, that contract should be cancelled forthwith.

Since this Court is seized of the present matter, no court should entertain any writ petition, suit or application which is connected in any manner with the discharge of obligation imposed on the respective parties to the present proceedings. If any such writ petition suit or application is already entertained, the Courts should not proceed with the same till further orders of this Court.

The BCCI and the Doordarshan will mutually solve the problem of the Control Room and Storage Room facilities needed by the Doordarshan, preferably in one meeting La Bombay on 20th October, 1994”.

122. The law on the subject discussed earlier makes it clear that the fundamental right to freedom of speech and expression includes the right to communicate effectively and to as large a population not only in this country but also abroad, as is feasible. There are no geographical barriers on
communication. Hence every citizen has a right to use the best means available for the purpose. At present, electronic media, viz., T.V. and radio, is the most effective means of communication. The restrictions which the electronic media suffers in addition to those suffered by the print media, are that [i] the airwaves are a public property and they have to be used for die benefit of the society at large, [ii] the frequencies are limited and [iii] media is subject to pre-censorship. The other limitation, viz., the reasonable restrictions imposed by law made for the purposes mentioned in Article 19 [2] is common to all the media. In the present case, it was not and cannot be the case of the NM that the telecasting of the cricket matches was not for the benefit of the society at large or not in the public interest and, therefore, not a proper use of the public property. It was not the case of the MIB that it was in violation of the provisions of Article 19 [2].

There was nothing to be pre-censored on the grounds mentioned in Article 19 [2]. As regards the limitation of resources, since the DD was prepared to’telecast the cricket matches, but only on its terms it could not plead that there was no frequency available for telecasting. The DD could also not have ignored the rights of the viewers which the High Court was at pains to emphasise while passing its orders and to which we have also made a reference. The CAB/BCCI being the organisers of the event had a right to sell the telecasting rights of its event to any agency. Assuming that the DD had no frequency to spare for telecasting the matches, the CAB could certainly enter into a contract with any agency including a foreign agency to telecast the said matches through that agency’s frequency for the viewers in this country [who could have access to those frequencies] as well as for the viewers abroad. The orders passed by the High Court in effect gave a right to DD to be the host broadcaster for telecasting in this country and for the TWI, for telecasting for the viewers outside this country as well as those viewers in this country who have an access to the TWI frequency. The order was eminently in the interests of the viewers whatever its merits on the other aspects of the matter.

123. The orders passed by the High Court have to be viewed against the backdrop of the events and the position of law discussed above. The circumstances in which the High Court passed the orders and the factual and legal considerations which weighed with it in passing them speak for themselves. However, since the cricket matches have already been telecast, the question of the legality or otherwise of the orders has become academic and it is not necessary to pronounce our formal verdict on the same. Hence we refrain from doing so.

124. We, therefore, hold as follows:

[i] 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 in- built restriction on its use as in the case of any other public property.

[ii] The right to impart and receive information is a species of the right of free-
the best means of imparting and receiving information and as such to have an access to telecasting for the purpose. However, this right to have an access to telecasting has limitations on account of the use of the public property, viz., the airwaves, involved in the exercise of the right and can be controlled and regulated by the public authority. This limitation imposed by the nature of the public property involved in the use of the electronic media is in addition to the restrictions imposed on the right to freedom of speech and expression under Article 19 [2] of the Constitution.

[iii] The Central Government shall take immediate steps to establish an independent autonomous public authority repre- sentative of all sections and interests in the society to control and regulate the use of the airwaves.

[iv] Since the matches have been telecast pursuant to the impugned order of the High Court, it is not necessary to decide the correctness of the said order.

[v] The High Court ’will now apportion between the CAB and the DD the revenues generated by the advertisements on T.V. during the telecasting of both the series of the cricket matches, viz., the Hero Cup, and the International Cricket Matches played in India from October to December 1994, after hearing the parties on the subject.

125. The civil appeals are disposed of accordingly.

126. In view of the disposal of the civil appeals, the writ petition filed by the Cricket Association of Bengal also stands disposed of accordingly.

B.P. JEEVAN REDDY, J.

127. Leave granted in Special Leave Petitions.

128. While I agree broadly with the conclusions arrived at by my learned brother Sawant,J. in Para 24 of his judgment, I propose to record my views and conclusions on the issues arising in these matters in view of their far- reaching importance.

129. Cricket is an interesting game. Radio, and more particularly the television has made it the most popular game in India. It has acquired tremendous mass appeal. Television has brought the game into the hearths and homes of millions of citizens across the country, enhancing its appeal several-fold. Men, women and children who had no interest in the game earlier have now become its ardent fans – all because of its broadcast by radio and television. This has also attracted the attention of business and commerce. They see an excellent opportunity of advertising their products and wares. They are prepared to pay huge amounts therefor. The cricket clubs which conduct these cricket matches have come to see an enormous opportunity of making money through these matches. Previously, their income depended mainly upon the ticket money. Now, it probably does not count at all. The real income comes from the advertisements both in-stadia as well as the spot advertisements over radio and television. The value of in- stadia advertisement has increased enormously on account of its constant exposure on television during the progress of the game. Lured by this huge revenues, organisers of these events now propose to sell the broadcasting rights used compendiously to denote both radio and television rights – of these events to the highest bidder, be he foreign agency or a local one. They find that Doordarshan is not in a position to or willing to pay as much as the foreign agencies are. Accordingly, they have sold these rights to foreign agencies. But – and here lies the rub – broadcasting the event, particularly telecasting, requires import, installation and operation of certain equipment by these foreign agencies for which the law (Indian Telegraph Act) requires a prior permission – licence – to be granted by Government of India. Earlier, they wanted uplinking facility too through Videsh Sanchar Nigam Ltd., a Government of India-owned company. Now they suggest, it may not be necessary. They say, they can uplink directly from their earth station installed, or parked, as the case may be, near the playing field to their designated communication satellite which will beam it back to earth The revolution in communications/ information technology is throwing up new issues for the courts to decide and this is one of them.

130. The Doordarshan says that all these years it has been telecasting the cricket events in India and has helped it popularise. So also is the plea of All India Radio (AIR). They are Government agencies – departments of Government. AIR and Doordarshan enjoy a monopoly in this country in the matter of broadcasting and telecasting. They cannot think of any other agency doing the same job. They are not prepared to reconcile themselves to any other agency, more particularly, a foreign agency being invited to broadcast/ telecast these events and they themselves being asked to negotiate and purchase these rights from such foreign agencies. They say, they alone should be allowed to telecast and broadcast these events; that they alone must act as the ’host broadcaster’, which means they alone shall generate the host broadcasting signal, which the interested foreign agencies can purchase from them. They are, of course, not prepared to pay as much amounts as the foreign agencies. They are seeking to keep away the foreign agencies with the help of the legal provisions in force in this country. If they are successful in that, it is obvious, they may – they can – dictate terms to the organisers of these events. If they cannot, the organisers will be in a position to dictate their terms. But here again, there is another practical, technological, problem. The foreign agencies do beam their programmes over Indian territory too, but for receiving these programmes you require – period – a dish antenna, which costs quite a bit. Our TV sets cannot receive these programmes through the ordinary antenna. Doordarshan alone has the facility of telecasting programmes which can be received through ordinary antennae. Millions in this country, who arc deeply interested in the game, cannot afford these dish antennae but they want to watch the game and that can be provided only by the Doordarshan. And this is its relevance. Doordarshan says, if the organisers choose to sell their telecasting rights to a foreign agency, they would have nothing to do with the event. They would not telecast it themselves. If the foreign agencies can telecast them, well and good – they can do so in the manner they can, but Doordarshan would not touch the event even by a long barge- pole. But, the Doordarshan complains, they are being compelled by the courts to telecast these events in public interest; such orders have been passed in writ petitions filed by individuals or groups of individuals purporting to represent public interest; the 1995 (2) Doordarshan is thus made to lose at both ends – and the organisers are laughing all the way; telecasting an event requires good amount of preparation; advertisements have got to be collected well in time; it cannot be done at the last minute; without advertisements, telecasting an event results in substantial loss to public exchequer – it says. These are the problems which have given rise to these appeals and writ petitions. They raise inter alia grave constitutional questions touching the freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. The in- terpretation of Section 4(1) of the Indian Telegraph Act, the right to establish private broadcasting and telecasting facilities/ stations – in short, the, whole gamut of the law on broadcasting and telecasting has become involved in the issues arising herein.

FACTUAL CONSPECTUS-
131. Cricket Association of Bengal (CAB) organised an international cricket tournament under the name and style of “Hero Cup Tournament” to commemorate and celebrate its diamond jubilee celebrations. Apart from India, national teams of West Indies, South Africa, Sri Lanka and Zimbabwe to participate though the national team of Pakistan withdrew therefrom having agreed to participate in the first instance. The Hero Cup Tournament comprised several one day matches and its attraction was not confined to India but to all the cricket loving countries which, in effect, means all the commonwealth countries. The tournament was to be held during the month of November, 1993. Until 1993, Doordarshan was acting as the host broadcaster in respect of all the cricket matches played in India. It generated the ’host broadcaster signal’, which signal could be assigned or sold to foreign television organisations for being broadcast in their countries. However, an exception was made by the Government of India – for reasons we do not know – in respect of an earlier tournament; a foreign agency was permitted to telecast the matches in addition to Doordarshan. This exception appears to have set a precedent. On March 15, 1993 the Cricket Association of Bengal wrote to Doordarshan asking it to send their detailed offer which could be any one of the two alternatives mentioned in the letter. The two alternatives mentioned were: “(a) that you (Doordarshan) would create ’host broad- caster signal’ and also undertake live telecast of all the matches in the tournament or (b) that’any other party may create the ’host broadcaster signal’ and you would only purchase the rights to telecast in India.” The Doordarshan was requested to clearly spell in their offer the royalty amount they were willing to pay. It was further made clear that “in either case it may also please to noted that foreign T.V. rights will be retained by this association”. The letter also suggested the. manner in which and by which date the royalty amount was to be paid to it. The offer from Doordarshan was requested to be sent by March 31, 1993. On March 18, 1993 Doordarshan wrote to CAB asking it to send in writing the amount it expects as rights’ fee payable to it for granting exclusive telecasting rights “without the Star T.V. getting it”. On March 19, 1993, CAB wrote to Doordarshan stating that “we are agreeable to your creating the Host Broadcaster Signal and also granting you exclusive rights for India without the Star TV getting it. And we would charge you US $ 800,000 (US Dollars Eight Hundred Thousand only) for the same. We ’Will, however, reserve the right to sell/licence right worldwide, excluding India and Star TV. You would be under an obligation to provide the picture and commentary, subject to the payment of your technical fees”. On March 31, 1993 Doordarshan replied back stating that the exclusive rights for India without Star TV getting it may be granted to Doordarshan at a cost of Rupees one crore. Evidently, because no response was forthwith coming from CAB, the Doordarshan sent a reminder on May 4, 1993. On May 12, 1993, CAB wrote to Doordarshan. By this letter, CAB informed Doordarshan that they have now decided “to sell/allot worldwide TV Rights for the tournament to one party only, instead of awarding separate areawise and companywise contracts”. In view of this revised decision, the CAB called upon Doordarshan to let them know whether Doordarshan is in the deal and if so to submit its detailed offer for worldwide TV rights by May 17, 1993. The Doordarshan was given an option either to purchase TV rights outright or to purchase TV rights on the basis of sharing of rights fee. Even before receiving this letter of CAB dated May 12, 1993, Doordarshan addressed a letter to CAB on May 14, 1993 stating that while Doordarshan is still committed to its bid of Rupees one crore, there is speculation that Pakistan may not participate in the tournament which would adversely affect the viewership and commercials. In such an eventuality, the Doordarshan said, it will have to re-think its bid.

132. On June 18, 1993 Doordarshan sent a fax message to CAB referring to the press reports that CAB has entered into amendment with Transworld Image (TWI) for the TV coverage of the said tournament and that, therefore, Doordarshan has decided not to telecast the tournament matches organised by paying TWI. It stated that Doordarshan is not prepared to enter Into any negotiation with TWI to obtain TV rights for the event. will not

133. Months passed by and then on October 18, 1993, CAB wrote a detailed letter to Doordarshan. In this letter, CAB stated that though they were expecting an offer Doordarshan was offering only a sum of Rupees one crore and that they have received offers from agencies abroad including TWI which were much higher than Rupees two crores and that too in foreign exchange. Since Doordarshan was not interested in increasing its offer, the letter stated, CAB entered into a contract with TWI for the telecast of matches. Even so, the letter stated, the CAB is still keen that Doordarshan comes forward to telecast the matches since it does not wish to deprive 800 millions people of this country and that accordingly they have made TWI agree for co-production with Doordarshan. It was also stated that Doordarshan should not claim exclusive rights and the CAB would be at liberty to sell the rights to Star TV. The letter further stated that the Doordarshan has not been responding to their letters and that meanwhile several foreign TV organisations and networks have been approaching them to telecast their matches to the Indian audience. The letter also referred to their information received from some other sources that Doordarshan is interested in acquiring the rights of tele cast provided its allowed produce some matches directly and that matches produced by TWI are made available to Doordarshan without payment of technical fees. The letter indicated the matches which Doordarshan would be allowed to telecast directly and the matches which TWI was to telecast directly. This offer was, however, subject to certain conditions which inter alia included the condition that Doordarshan will not pay access fee to CAB but shall allow four minutes’ advertising time per hour 9i.e. a total of twenty eight minutes in seven hours) and that CAB will be at liberty to sell such time slots to advertisers and receive the proceeds therefor by itself.

134. On October 27, 1993 Doordarshan replied that they are not interested in the offer made by CAB in its letter dated October 18, 1993. They stated that they have never agreed to any joint production with TWI. On October 29, 1993, CAB again wrote to Doordarshan expressing their regret at the decision of the Doordarshan conveyed in their letter dated September 27, 1993 and stated………. purely in deference to your sensitivity about taking a signal from TWI, CAB would be quite happy to allow you production of your own picture of matches; you may like to buy rights and licence from CAB, at a price to be mutually agreed upon. We would also like to clarify that these rights will be on non- exclusive basis for Indian territory”. Doordarshan’s response was requested at the earliest. On October 30, 1993, Doordarshan confirmed its message sent that day expressing their refusal to pay any access fee to CAB and stating further that if Doordarshan has to telecast the matches live, CAB has to pay technical charges/ production fee at the rate of Rupees five lacs per match and that Doordarshan shall have exclusive rights for the signal generated. There was a further exchange of letters, which it is unnecessary to refer.

135. While the above correspondence was going on between CAB and Doordarshan, the CAB applied for and ob- tained the following permissions from certain departments. They are:

(a) On September 2, 1993, the Government of India, Ministry of Human Resource Development (Department of Youth Affairs and Sports) wrote to CAB stating that government has no objection to the proposed visit of the cricket teams of the participating countries in November 1993. The government also expressed its no objection to provide the conversion facility for guarantee money and prize money for foreign players subject to a particular cell’ing.

(b) Videsh Sanchar Nigam Limited (VSNL) indicated its charges for providing uplinking facility to INTELSAT and accepted the said charges when paid by the CAB/TWI.

(c) On October 13, 1993 the Government of India, Ministry of Home Affairs wrote to CAB expressing its no objection to the filming of cricket matches and to the use of walkie- talkie sets in the playground during the matches. It also expressed its no objection in principle to the production and technical staff of TWI visiting India.

(d) On October 20, 1993, the Department of Telecommunications addressed a letter to the Central Board of Excise and Customs expressing its no objection to tem- porary import of electrical production equipment required for transmission of the said matches between November 7-27, 1993 subject to the organisers coordinating with wireless planning committee for frequency clearance and also with VSNI.

(e) On November 2, 1993, the Ministry of Finance (Department of Revenue) addressed a letter to Collector of Customs, Sahar Airport, Bombay intimating him of the grant of exemption from duty for the temporary import of electrical equipment by TWI, valued at Rs.4.45 crores subject to certain conditions.

136. Inasmuch as no agreement could be arrived at between CAB and Doordarshan, the Department of Telecom- munications addressed a letter to VSNL on November 3, 1993 (on the eve of the commencement of the matches) to the fol- lowing effect: “Refer to your letter No. 18IP(TWI)/93-TG dated 13.10.1993 and discussion of Shri V.Babuji with W.A. on 2.11.1993 regarding uplink facility for telecasting by TWI of C.A.B. Jubilee Cricket matches. You are hereby advised that uplink facilities for this purpose should NOT repeat NOT be provided for T.W.I. This has the approval of Chairman (TC) and Secretary, DoT. Kindly confirm receipt.” The VSNL accordingly intimated CAB of its inability to grant uplinking facility and also returned the amount received earlier in that behalf

137. Faced with the above developments, the CAB approached the Calcutta High Court by way of a writ petition being Writ Petition No.F.M.A.T.Nil of 1993 asserting that inspite of their obtaining all permissions including the TV uplinking facilities from VSNL as contemplated by the proviso to Section 4 of the Indian Telegraph Act, Doordarshan – and other governmental authorities at the instance of Doordarshan – are seeking to block and prevent the telecast of the matches by TWI.

The reliefs sought for in the writ petition are the following:
(1) A mandamus commanding Respondents 1, 3 and 4 (Union of India, Director General, Information and Broadcasting and Director General, Doordarshan) and other respondents to ensure uninterrupted and unobstructed telecast and broadcast of Hero Cup tournament between November 1028, 1993 and to take all appropriate measures for such telecast and broadcast.

(ii) A mandamus to the respondents to provide all arrangements and facilities for telecast and broadcast of the Hero Cup tournament by the appointed agencies of the petitioners.

(iii) A mandamus restraining the respondents from- seizing, tempering with, removing or dealing with any equipment relating to transmission telecast and broadcast of the said tournament; and

(iv) Restraining the respondents from interfering or disrupting in any manner the live transmission and broadcast of the said tournament by the petitioners and their agents.

138. A learned Single Judge of the Calcutta High Court heard the matter on November 8, 1993. The learned Judge directed the matter to come up on the next day with a view to enable the Advocate for the Union of India to obtain necessary instructions in the matter. At the same time, he granted an interim order of injunction in terms of prayers (i) and (j) in the writ petition effective till the end of the next day. Prayers (i) and (j) in the writ petition read as follows:

(i) Interim order commanding the Respondents, their servants, agents, employees or otherwise to provide all adequate assistance and cooperation to the Petitioners and/or their appointed Agency for free and uninterrupted telecast and broadcast of HERO CUP TOURNAMENT between 10th November, 1993 and 28th November, 1993;

(i) An interim order of injunction restrain- ing the Respondents their servants, agents, employees and others from tempering with, removing, seizing or dealing with any equipments relating to transmission telecast and broadcast of HERO CUP TOURNAMENT belonging to and/or their appointed agency in any manner whatsoever.

139. The order made it clear that the said order shall not prevent Doordarshan from telecasting any match without affecting any arrangement arrived at between CAB and TWI. 140.On the next day, i.e., November 9, 1993, the learned Single Judge heard the Advocate for the Union of India but declined to vacate the interim order passed by him on the previous day. He further restrained the respondents to the writ petition from interfering with the frequency lines given to the Respondent No.10, i.e., TWI as per request made by VSNL to SAT in view of the fact that VSNL had accepted the proposal of CAB and TWI and had also received the fees therefor. On November 11, 1993, the learned Judge passed another order, on the representation of the learned counsel for the writ petitioners, that the equipment brought by TWI for the purpose of production of transmission and telecasting of cricket matches which was seized by the Bombay customs authorities, allegedly under the instructions of the Ministry of Telecommunications and Ministry of Information and Broadcasting, be released. The learned Judge directed that all the governmental authorities including the customs authorities shall act in accordance with the interim orders dated 8/9th November, 1993. Meanwhile, it appears, certain individuals claiming to be interested in watching cricket matches on television filed independent writ petitions for a direction to the Doordarshan to telecast the matches. The learned Judge expressed the opinion that by their internal fight between Respondents 1 to 5 on one hand and Respondent No.6 (reference is to the ranking in the writ petition) on the other, millions of viewers in India are deprived of the pleasure of watching the matches on television. He then referred to the representation that at the instance of Doordarshan and others, All-India Radio (AIR) too has stopped broadcasting the matches. The learned Judge observed that there is no reason for AIR to do so and accordingly directed the Union of India and others including the Ministry of Information and Broadcasting to broadcast the remaining cricket matches on AIR as well.

141. Aggrieved by the orders of the learned Single Judge aforementioned, the Union of India and other governmental agencies filed a writ appeal (along with an application for stay) which came up for orders on November 12, 1993 before a Division Bench of the Calcutta High Court. It was submitted by the learned counsel for the Union of India that though the Doordarshan is very much keen to telecast the matches, the CAB has really created problems by entering into an agreement with TWI. He submitted that under Section 4 of the Telegraph Act, 1885, the Central Government has the exclusive provilege of establishing, maintaining and working telegraph and that the definition of the expression “telegraph” includes telecast. He submitted that neither CAB nor TWI have obtained any licence or permission as contemplated by the proviso to Section 4(1) of the Indian Telegraph Act and, therefore, TWI cannot telecast the matches from any place in Indian territory. After referring to the rival contentions of the parties and the correspondence that passed between them, the Division Bench observed that there were two dimensions to the problem arising before them, viz., (i) the right to telecast by Doordarshan within India and (2) right of TWI to telecast outside India for viewers outside India. Having regard to the urgency of the matter and without going into the merits of the rival contentions, and keeping in view the interest of millions of viewers, the Division Bench observed: “we record, as Doordarshan is inclined to telecast the matches for the Indian viewers on receipt of Rs.5 lakhs per match and to enjoy the exclusive right of signalling within the country being the host broadcaster, we direct the CAB to pay immediately a sum of Rs.5 lakhs per match for this purpose and the collection of revenue on account of sponsorship or otherwise in respect of 28 minutes which is available for commercial purpose be realised by the Doordarshan on condition that such amount shall be kept in a separate account and shall not be dealt with and dispose of the said amount until further orders” to be passed in the said writ appeal. The Doordarshan was accordingly directed to immediately start telecasting the matches. The Bench then took up the question whether TWI is entitled to telecast the matches from Indian territory. It noted that no formal order as required under the proviso to Section 4(1) of the Telegraph Act has been granted in favour of either CAB or TWI. Purporting to take notice of the national and international impact of the issue, the Bench directed the 5th appellant before them, viz.., the Secretary, Ministry of Telecommunications, Government of India “to consider the facts and circumstances of the case clearly suggesting that there had already been an implied grant of permission, shall grant a provisional permission or licence without prejudice to the rights and contentions of the parties in this appeal and the writ application and subject to the condition that Respondent No.6 (5th appellant in appeal) in the writ application will be at liberty to impose such reasonable terms and conditions consistent with the provision to Section 4(1) of the Indian Telegraph Act having regard to the peculiar facts and circumstances of the case.” (emphasis added). The Secretary was directed to decide the said question within three days from the date of the said order after hearing all the parties before the Division Bench, if necessary,

142. On November 14, 1993, the matter was again taken up by the Division Bench, on being mentioned by the parties. The first problem placed before the Bench was placement of cameras. The Doordarshan authorities complained that they have not been given suitable place for the purpose of telecasting. Doordarshan further submitted that there can only be one signalling from the field and that in terms of the orders of the Division Bench, Doordarshan should be the host broadcaster and TWI should take the signal from Doordarshan. This request was opposed by the CAB and TWI. The Bench directed that according to their earlier order the TWI is entitled to telecast outside the country and to send their signal accordingly and in case the signalling is required to be made by TWI separately, the necessary permission should be given by the Doordarshan and other competent authorities therefor. Regarding placement of cameras, certain directions were given.

143. Aggrieved by the orders of the Division Bench dated 12/14th November, 1993, the Secretary, Ministry of Informa- tion and Broadcasting, Government of India, Director General, Doordarshan and Director General, Akashvani filed two Special Leave Petitions in this court, viz., S.L.P.(C)Nos.18532-33 of 993. Simultaneously, CAB filed an independent writ petition in this court under Article 32 of the Constitution being W.P.(C) No.836 of 1993. The prayers in this writ petition are practically the same as are the prayers in the writ petition filed in the Calcutta High Court. The additional prayer in this writ petition related to release of equipment imported by TWI which was detained by customs authorities at Bombay. On November 15, 1993, this court directed the Secretary, Ministry of Telecommunications, Government of India to hold the meeting, as directed by the Calcutta High Court, at 4.30P.M. on that very day (November 15, 1993) and communicate the decision before 7.30P.M. to TWI or its counsel or to CAB or its counsel. The customs authorities were directed to release the equipment forthwith. The TWI was, however, restrained from using the equipment for telecast purpose unless a licence is issued by the Secretary, Ministry of Telecommunications in that behalf.

144. Pursuant to the orders of this court, Shri N.Vithal, Chairman, Telecommunications and Secretary, DoT passed orders on November 15, 1993 which were brought to the notice of this court on that very day. This court stayed the said order to the extent it imposed a condition that TWI will get their signal from Doordarshan for uplinking through VSNL. The TWI was permitted to generate their own signal by focussing their cameras on the ground. It was observed that the said order shall not be treated as a precedent in future since it was made in the particular facts and circumstances of that case.

145. The matches were telecast in accordance with the directions given by this court and the High Court but the Special Leave Petitions and the Writ Petition remained pending. While so, a new development took place in 1994 which now requires to be mentioned.

146. In connection with World Cup Matches scheduled for the year 1996, certain correspondence took place between Doordarshan and the Board of Cricket Control, India (BCCI). While the said correspondence was in progress, each side re- affirming their respective stand, BCCI arranged certain international cricket matches to be played between the national teams of India, West Indies and New Zealand during the months of October-December, 1994. BCCI entered into an agreement with ESPN, a foreign agency, for telecasting all the cricket matches organised by BCCI in India for the next five years for a consideration of US $30 million. Doordarshan was totally excluded. ESPN in turn made an offer to Doordarshan to purchase the right to telecast the matches in India from ESPN at a particular consideration which the Doordarshan declined.

147. On September 20, 1994, we commenced the hearing of these matters. While the hearing was in progress, the BCCI filed a writ petition, being Writ Petition No.628 of 1994, for issuance of a writ, order or direction to the respondents (Government of India and its various departments and agencies) to issue and grant the necessary licences and/or permissions in accordance with law to BCCI or its appointed agencies for production, transmission and live, telecast of the ensuing international cricket matches to be played during the months of October-December, 1994 and to restrain the Doordarshan and other authorities from interfering with or obstructing in any manner the transmission, production, uplinking and telecast of the said matches. This writ petition was occasioned because the au- thorities were said to be not permitting ESPN to either bring in the necessary equipment or to telecast the matches from the Indian territory. The said writ petition was withdrawn later and Interlocutory Applications filed by the BCCI in the pending special leave petition and writ petition seeking to be impleaded in those matters and for grant of reliefs similar to those prayed for in Writ Petition No.628 of 1994. Since the hearing was yet to be concluded, we passed certain orders similar to those passed by this court earlier – confined, of course, to the matches to be played during the months of October-December, 1994.

CONTENTIONS URGED BY THE PARTIES AND THE QUESTIONS ARISING FOR CONSIDERATION.

148. The CAB and BCCI have taken a common stand, were represented by the same counsel and have also filed common written submissions. It is not possible to reproduce all their contentions as put forward in their written submissions because of the number of pages they run into. It would suffice if I set out their substance. The submissions are:

(a) CAB and BCCI are non-profit-making sporting organisations devoted to the promotion of cricket and its ideals. They organise international cricket tournaments and series from time to time which call for not only good amount of Organisation but substantial expense. Payments have to be made to the members of the teams participating. Considerable amount of money has to be expended on the training of players and providing infrastructural facilities in India. All this requires funds which have to be raised by these organisations on their own. Accordingly, CAB entered into an agreement with TWI for telecasting the Hero Cup Tournament matches to be played in the year 1993. The necessary permissions were applied for and granted by the Ministries of Home, Defence, Human Resource Development and Telecommunications. The Ministry of Telecommunications/VSNL accepted the monies for the purpose of providing uplinking facilities, which does amount to implied grant of permission under the proviso to Section 4(1) of the Telegraph Act. In any event, the acceptance of the monies made it obligatory upon the ministries to grant the said licence. It is only on account of the interference and lobbying by Doordarshan and Ministry of Information and Broadcasting that the other ministries went back and refused to permit the telecast. The action of the Doordarshan and the Ministry of Information and Broadcasting is malafide, unreasonable and authoritarian besides being illegal.

(b) The game of cricket provides entertainment to public. It Is a form of expression and is, therefore, included within the freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. This right includes the right to telecast and broadcast the matches. This right belongs to the organiser of the matches which cannot be interfered with by anyone. The organiser is free to choose such agency as it thinks appropriate for telecasting and broadcasting its matches. The Doordarshan or the Ministry of Information and Broadcasting can claim no right whatsoever to telecast or broadcast the said matches. If they wish to do so, they must negotiate with the organiser and obtain the right. They have no inherent right, much less a monopoly, in the matter of telecasting and broadcasting these matches. It is not their events. If the organisers, CAB and BCCI herein, choose to entrust the said rights to a foreign agency, such foreign agency is merely an agency of the organisers and the mere fact that it happens to be a foreign agency is no ground for depriving the organisers, who as Indian citizens, are entitled to the fundamental right guaranteed by Article 19(1)(a). The said right can be restricted or regulated only by a law made with reference to the grounds mentioned in clause (2) of Article 19 and on no other ground.

(c) Section 4 of the Indian Telegraph Act must be understood and construed in the light of Article 19(1)(a). So read and understood, it is only a regulatory provision. If a person applies for a licence for telecasting or broadcasting his speech and expression – in this case the game of cricket – the appropriate authority is bound to grant such licence unless it can seek refuge under a law made in terms of clause (2) of Article 19. The appropriate authority cannot also impose such conditions as would nullify or defeat the guaranteed freedom. The conditions to be imposed should be reasonable and relevant to the grant.

(d) Doordarshan or AIR has no monopoly in the matter of telecasting/broadcasting. Radio and television are only a medium through which freedom of speech and expression is expressed. Article 19(2) does not permit any monopoly as does clause (6) in the matter of Article 19(1)(g). Section 4, which contemplates grant of telegraph licences is itself destructive of the claim of monopoly by Doordarshan/AIR.

(e) Right to disseminate and receive information is a part of the right guaranteed by Article 19(1)(a). Televising the cricket match is a form of dissemination of information. The mere fact that the organisers earn some income from such activity does not make it anytheless a form of expression. It has been held repeatedly by this court in the matter of freedom of press that the mere fact that publication of newspaper has also certain business features is no ground to treat it as a business proposition and that it remains an activity relatable to Article 19(1)(a). Business activity is not the main but only an incidental activity of CAB/BCCI,. the main activity being promotion of cricket. It follows that whenever any citizen of this country seeks to exercise this right, all necessary permissions have to be granted by the appropriate authorities. The only ground upon which it can be refused is with reference to law made in the interest of one or the other ground mentioned in Article 19(2) and none else.

(f) With the technological advance and the availability of a large number of frequencies and channels, being provided by the increasing number of satellites, the argument of limited frequencies and/or scarce resource is no longer tenable. The BCCI does not want allotment of frequency – not even the uplinking facility, since it has the facility to uplink directly from the earth station to Gorizon-Russian satellite with which ESPN has an arrangement All that the BCCI wants is a licence/permission for importing and operating the station, wherever the match is played. In such an eventuality, Doordarshan does not come into picture at all. Of course, in connection with Hero Cup matches, the CAB wanted uplinking facility for the reason that it wanted uplinking to INTELSAT, which is provided only through VSNL. If an organiser does not want uplinking to INTELSAT, he need not even approach VSNL. As a matter of fact, major networks in United States have their own satellites.

149. On the other hand, the submissions on behalf of the Doordarshan and the Ministry of Information and Broadcasting are the following:
(i) The CAB or for that matter BCCI did not even apply for a licence under the proviso to Section 4(1) nor was such li- cence granted by the appropriate authority at any time or on any occasion. The grant of permission by other departments including the collection of fees by VSNL does not amount to and cannot take the place of licence under the proviso to Section 4(1). In the absence of such a licence, the CAB/BCCI or their agents had no right to telecast or broadcast the matches from the Indian territory. The argument of implied permission – or the alternate argument that the authorities were bound to grant such permission – is misconceived, more particularly, in the absence of even an application for grant of licence under Section 4 of the Telegraph Act.

(ii) The Calcutta High Court was not right in giving the directions it did. Particularly the direction given in its order dated November 12, 1993 to the Secretary, Ministry of Telecommunications, Government of India, was contrary to law. While directing the Secretary to consider the facts and circumstances of the case, the High Court expressly opined that there was already an implied grant of permis- sion. After expressing the said opinion, the direction to consider was a mere formality and of little significance. The charge of malafides and arbitrary and authoritarian conduct levelled against Doordarshan and the Ministry of Information and Broadcasting is wholly unfounded and unsustainable in the facts and circumstances of the case. In the absence of a licence under Section 4 of the Telegraph Act, VSNL could not have granted uplinking facility and it is for that reason that the Department of Telecommunications wrote its letter dated November 3, 1993 to VSNL.

(iii) Realising the lack of coordination among the various ministries concerned in granting permission in such a matter, the Government of India has since taken a policy decision in the meeting of the Committee of Secretaries held on November 12, 1993. It has been decided that satellite uplinking from the Indian soil should be within the exclusive competence of the Ministry of Information and Broadcasting/ Department of Space/Department of Tele- communications and that similarly the telecast of sports events shall be within the exclusive purview of the Doordarshan/Ministry of Information and Broadcasting who in turn could market their rights to other par-ties on occasion in whole or in part. It has been further decided that in respect of any such event, the organiser shall contact the specified nodal ministry which in turn will coordinate with all other concerned departments. In short, what may be called a ’single window system’ has been evolved which is indeed in the interest of organisers of such events.

(iv) So far as the contention based upon Article 19(1)(a) is concerned, the contentions of CAB/BCCI are misleading and over-simplistic. The right guaranteed by Article 19(1)(a) is not limited to organisers of such sports events. The said right is guaranteed equally to the broadcaster and the viewers. Among them, the right of the viewers is the more important one. The decisions rendered by this court in the matter of freedom of press are not strictly relevant in the matter of broadcast/telecast. Telecasting a sports event is distinct from the event itself It is evident that the CAB/ BCCI are seeking to earn as much as possible by selling the telecasting rights. It is nothing but commerce and an activity solely relatable to Article 19(1)(g) and not to Article 19(1)(a). Inviting bids from all over the world and selling the telecast rights to the highest bidder has nothing to do with Article 19(1)(a). In any event, the predominant element in such activity is that of business. The interest of general public is, therefore, a relevant consideration in such matters. The public interest demands that foreign agencies should not be freely permitted to come and set up their telecasting facilities in India in an unrestricted fashion. The occasion for inviting foreign agencies may possibly arise only if Doordarshan and AIR refuse to telecast or broadcast the event which they have never done. The Doordarshan was and is always ready to undertake the telecasting on reasonable terms but the CAB and BCCI were more interested in deriving maximum profit from the event. Doordarshan cannot certainly compete with foreign agencies who are offering more money not merely for obtaining the right to telecast these events but with the real and ultimate object of gaining a foothold in the Indian telecasting scene. Through these events, the foreign telecasting organisations, particularly ESPN, are seeking entry into Indian market and it is for this reason that they are prepared to pay more. Their interest is something more than mere commercial.

(v) The present situation is that the Doordarshan and AIR has got all the facilities of telecasting and broadcasting the events in India. They have been doing it for over the last several decades and they have the necessary infrastructure. The Doordarshan is taking all steps for updating its equipment and for training its technicians to handle the latest equipment. It is also entering into tic,-ups with certain foreign agencies for the purpose. They have always been prepared for any reasonable terms. Both Doordarshan and AIR are agencies of the State. Until recently, 97% of the telecasts made by Doordarshan did not earn any income. They only involved expense. Its income was derived mainly from the remaining three per cent of its activities including sports events like cricket. Recently, there has been a slight change in policy but the picture largely remains the same. There is nothing illegitimate or unreasonable in Doordarshan seeking to earn some money in the matter of telecast of such events.

(vi) The very nature of television media is such that it necessarily involves the marshaling of the resource for the greatest public good. The state monopoly is created as a device to use the resource for public good. It is not violative of the right of free speech so long as the paramount interest of the viewers is subserved and access to media is governed by the ’fairness doctrine’. Section 4 of the Telegraph Act cannot be faulted on any ground. Indeed, in none of the petitions filed by the CAB/BCCI has the validity of the monopoly of Doordarshan questioned. If the argument of the CAB/BCCI is accepted it would mean a proliferation of television stations and telecasting facilities by all and sundry, both domestic and foreign, which would not be in the interest of the country. Indeed, the other side has not placed any material to show that such free grant of licences would serve the public interest. (vii)Section 4 of the Telegraph Act is in no way inconsistent with the monopoly of Doordarshan/AIR. Indeed, it supports it. The American decisions are not really relevant to the Indian context. The availability of more or unlimited number of frequencies or channels is no ground to permit free and unrestricted import, establishment and operation of Radio/Television stations, earth stations or other such equipment.

150. In the light of the contentions advanced, the following questions arise for consideration:

1.(a) Whether a licence or permission can be deemed to have been granted to CAB under the proviso to Section 4 of the Indian Telegraph Act, 1885 for telecasting the Hero Cup Tournament matches played in November, 1993?

(b) If it is found that there was no such permission, was it open to the Calcutta High Court to give the impugned directions?

(c) Whether the charge of malafides and arbitrary and authoritarian conduct attributed to Doordarshan by CAB justified?

2.(a) Whether organising a cricket match or other sports event a form of speech and expression guaranteed by Article 19(1)(a) of the Constitution?

(b) If the question in clause (a) is answered in the affirmative, the further question is whether the right to telecast such event is also included within the right of free speech and expression?

(c) Whether the organiser of such sports events can claim the right to sell the telecasting rights of such events to such agency as they think proper and whether they have the right to compel the government to issue all requisite permissions, licences and facilities to enable such agency to telecast the events from the Indian soil? Does the right in Article 19(1)(a) take in all such rights?

(d) If the organiser of sports does have the rights mentioned in (c), whether the government is not entitled to impose any conditions thereon except charging technical fees or service charges, as the case may be?

3. Whether the impact of Article 19(1)(a) upon Section 4 of the Telegraph Act is that. whenever a citizen applies for a licence under the proviso to Section 4(1) it should be granted unless the refusal can be traced to a law within the meaning of Article 19(2)?

4. Whether the virtual monopoly existing in favour of Doordarshan in the matter of telecasting from Indian soil violative of Article 19(1)(a) of the Constitution?

ANSWERS TO THE QUESTIONS
QUESTION NO. 1:

151. The facts narrated in Part-II show that neither CAB nor BCCI ever applied for a licence under the first proviso to sub-section (1) of Section 4 of the Telegraph Act. The permissions obtained from other departments, viz., from the Ministry of Human Resource, VSNL, Ministry of Home Affairs, Ministry of Finance or the Central Board of Excise and Customs cannot take the place of licence under Section 4(1). Indeed, this fact was recognised by the Division Bench of the Calcutta High Court and it is for the said reason that it directed the Secretary to the Telecom Department to decide the question whether such licence should be granted to CAB in connection with Hero Cup matches. But while directing the Secretary to consider the said question, it chose to make certain observations which had the effect of practically foreclosing the issue before the Secretary. The Division Bench observed that the Sec- retary should proceed on the assumption that there was an implied grant of permission. As a matter of fact, the Secretary was directed to grant the licence in so many words, thus leaving no discretion in him to examine the matter in accordance with law. It became an empty formality. I am of the opinion that while asking the Secre- tary to decide the issue under proviso to Section 4(1), his discretion and judgment could not have been restricted or forestalled in the above manner. Be that as it may, in pursuance of the said directions and the directions of this Court – the Secretary passed certain orders, the legality of which has now become academic for the reason that both the events, viz., the Hero Cup matches as well as the recent international matches (October- December, 1994) are over. The only thing that remains to be considered is whether the charge of malafides and arbitrary and authoritarian conducted attributed to the Doordarshan by CAB and BCCI is justified. Firstly neither the CAB nor its foreign agent had applied for or obtained the licence/permission under Section 4(1). The permissions granted by other departments are no substitute for the licence under the proviso to Section 4(1). ’Mere is nothing to show that seizure of imported equipment by customs authorities was at the instance of Doordarshan; it appears to be for non-compliance with the requirements subject to which permission to import was granted. Secondly, this issue, in my opinion, cannot be examined in isolation but must be judged in the light of the entire relevant context. The Doordarshan did enjoy monopoly of telecasting in India which is the product of and appears to be sustained by Section 4(1) of the Telegraph Act. There was no occasion when a foreign agency was allowed into India without the consent of or without reference to Doordarshan to telecast such events. All these years, it was Doordarshan which was telecasting these matches. On one previous occasion, a foreign agency was allowed but that was by the Doordarshan itself or at any rate with the consent of and in cooperation with the Doordarshan. It is for this reason that the Doordarshan was asserting its exclusive right to telecast the event taking place on Indian soil and was not prepared to purchase the said right from a foreign agency to whom the CAB and BCCI sold all their rights. It is also worth noticing that neither CAB nor BCCI or for that matter any other sports organisation had ever before invited a foreign agency to telecast or broadcast their events – at any rate, not without the consent of Doordarshan. The agreement with TWI entered into by CAB and the agreement with ESPN entered into by the BCCI were unusual and new developments for all concerned. Like the bureaucracy everywhere, the Indian bureaucracy is also perhaps slow in adjusting to the emerging realities, more particularly when they see a threat to their power and authority in such developments. In the circumstances, their objection to a foreign agency coming in and telecasting such events without even obtaining a licence under the proviso to Section 4(1) of the Telegraph Act cannot be termed malafide or arbitrary. So far as the charge of authoritarianism is concerned, it is equally unsustainable for the reason that the CAB/ BCCI had no legal right nor any justification in insisting upon telecasting their events through foreign agencies without even applying for and/or obtaining a licence required by law. The correspondence between them shows that each was trying to get the better of the other; it was like a game of fencing. In my opinion, therefore, the charge of malafides or for that matter, the charge of arbitrary or authoritarian conduct levelled against the Doordarshan and/or other governmental authorities is unacceptable in the facts and circumstances of this case.

QUESTION NOS. 2.3 AND 4:

152. The contentions of Sri Kapil Sibal, learned counsel for the BCCI/CAB have been set out hereinbefore. What do they really mean and imply? It is this: the game of cricket provides entertainment to public at large. The entertainment is organised and provided by the petitioners. Providing entertainment is a form of expression and, therefore, covered by Article 19(1)(a) of the Constitution. Except in accordance with a law made in terms of clause (2) of Article 19, no restriction can be placed thereon. The organiser of the game has the right to telecast and broadcast the game. None can stop it – neither the Doordarshan nor AIR. The monopoly in favour of Doordarshan and AIR is inconsistent with Article 19(1)(a) as well as Section 4 of the Telegraph Act. If Section 4(1) is construed as conferring or affirming such monopoly, it is void and unconstitutional may fall foul of Article 19(1)(a). The first proviso to Section 4(1) is bad for the added reason that it or the Act does not furnish any guidance in the matter of exercise of discretion conferred upon the Central Government thereunder. The organiser of the Same is free to choose such agency as he thinks appropriate for telecasting and broadcasting the game – whether domestic or foreign – and if the organiser asks for a licence under the proviso to Section 4(1) for importing and operating the earth station or other equipment for the purpose, it must be granted. No conditions can be placed while granting such permits except collection of technical fees. This in sub- stance is the contention. It must be said at once that this may indeed be the first decision in this country, when such an argument is being addressed, though such arguments were raised in certain European courts and the European Court of Human Rights, with varying results as we shall indicate in a little while.

153. There may be no difficulty in agreeing that a game of cricket like any other sports event provides entertainment – and entertainment is a facet, a part, of free speech. [See Burstyn v. Wilson (96 L.Ed.1098)], subject to the caveat that where speech and conduct are joined in a single course of action, the free speech values must be balanced against competing societal interests. [Los Angeles v. Preferred Communications (1986 – 476 U.S.488 = 90 L.Ed.2d.480)]. It attracts a large audience. But the question is whether the organiser of the event can say that his freedom of expression takes in the right to telecast it from the Indian soil without any restrictions or regulations. The argument really means this, I have a right to propagate my expression, viz., the game, by such means as I think appropriate, I may choose to have a television station of my own or I may invite a foreign agency to do the job. Whatever I wish, the State must provide to enable me to propagate my game. I may make money in the process but that is immaterial’. In effect, this is an assertion of an absolute and unrestricted right to establish private radio and television stations, since there is no distinction in principle between having a mobile earth station (which beams its programmes to a satellite via VSNL or directly to another satellite which in turn beams it back to earth) and a stationary television station. Similarly, there is no distinction in law between a permanent telecasting facility and a facility for a given occasion. Question is, is such a stand acceptable within the framework of our Constitution? (The question relating to interpretation of Section 4(1), 1 will deal with it separately.) I may clarify that I am concerned herein with ’live telecast’ which requires the telecast equipment to be placed at or near the field where the event is taking place, i.e., telecasting from the Indian territory. This clarification is appended in view of the contention urged that nothing prevents the organisers – 1 or for that matter, anybody – from video recording the event and then take the video cassette out of this country and telecast it from outside stations. Undoubtedly, they can do so. Only thing is that it will not be a live telecast and it would also not be a telecast from the Indian soil.

154. Article 19(1)(a) declares that all citizens shall have the right of freedom of speech and expression. Clause (2) of Article 19, at the same time, provides that nothing in sub-clause (1) of clause (1) shall affect the operation of any existing law or prevent the State from making any law, insofar as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with the foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement of an offence. The grounds upon which reasonable restrictions can be placed upon the freedom of speech and expression are designed firstly to ensure that the said right is not exercised in such a manner as to threaten the sovereignty and integrity of India, security of the State, friendly relations with the foreign States, public order, decency or morality. Similarly, the said right cannot be so exercised as to amount to contempt of court, defamation or incitement of an offence. Existing laws providing such restrictions are saved and the State is free to make laws in future imposing such restrictions. The grounds aforesaid are conceived in the interest of ensuring and maintaining conditions in which the said right can meaningfully ad peacefully be exercised by the citizens of this country.

155. The freedom of speech and expression is a right given to every citizen of this country and not merely to a few. No one can exercise his right of speech in such a manner as to violate another man’s right of speech. One man’s right to speak ends where the other man’s right to speak begins. Indeed, it may be the duty of the State to ensure that this right is available to all in equal measure and that it is not hijacked by a few to the detriment of the rest. This obligation flows from the preamble to our Constitution, which seeks to secure. to all its citizens liberty of thought, expression, belief and worship. State being a product of the Constitution is as much committed to this goal as any citizen of this country. Indeed, this obliga- tion also flows from the injunction in Article 14 that “the State shall not deny to any person equality before the law” and the direction in Article 38(2) to the effect: “the State, shall, in particular – endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people…….. Under our Constitutional scheme, the State is not merely under an obligation to respect the fundamental rights guaranteed by Part-III but under an equal obligation to ensure conditions in which those rights can be meaningfully and effectively enjoyed by one and all.

156. The fundamental significance of this freedom has been stressed by this Court In a large number of decisions and it is unnecessary to burden this judgment with those decisions. Freedom of speech and expression, it has been held repeatedly, is basic to and indivisible from a democratic polity. It encompasses freedom of press. It includes right to impart and receive information. The question now in issue is: does it include the freedom to broadcast and telecast one’s views, ideas and opinions and whether, if one wishes to do so, is the State bound to provide all necessary licences, permits and facilities therefor? This requires an examination of the history of broadcasting and telecasting in this country as well as in certain leading democracies in the world. In this judgment, the expression “broadcasting media” wherever used denotes the electronic media of radio and television now operated by AIR and Doordarshan – and not any other radio/TV services

INDIA:

157. Though several countries have enacted laws on the subject of broadcasting, India has not. The Indian Telegraph Act, enacted in 1885 (as amended from time to time) is the only enactment relevant in this behalf Clause
(1) of Section 3 defines the expression “telegraph” in the following words:
“”Telegraph” means any appliance, instrument material or apparatus used or capable of use for transmission or reception of signs signals,writing, images and sounds or intelligence of any nature by wire, visual or other electromagnetic emissions, Radio waves or Hertzian waves, galvanic, electric or magnetic means.

Explanation.- “Radio waves” or “Hertzian waves” means electromagnetic waves of frequencies lower than 3,000 giga-cycles per second propagated in space without artificial guide.

158. Sub-section (1) of Section 4 which occurs in Part-11 entitled “Privileges and Powers of the Government” confers the exclusive privilege of establishing, maintaining and working telegraphs In India upon the Central Government. At the same time, the first proviso to sub-section empowers the Central Government itself to grant a licence on such conditions and in consideration of such payments as it thinks fit, to establish, maintain or work a telegraph within any part of India. Section 4 may be set out for ready reference:

“4.(1) Within India the Central Government shall have the exclusive privilege of establishing, maintaining and working telegraphs:
Provided that the Central Government may grant a licence, on such conditions and in consideration of such payments as it thinks fit, to any person to establish, maintain or work a telegraph within any part of India: Provided further that the Central Government may, by rules made under this Act and published in the Official Gazette, permit, subject to such restrictions and conditions as it thinks fit, the establishment, maintenance and working-
(a) of wireless telegraphs on ships within Indian territorial waters and on aircraft within or above India, or Indian territorial waters, and
(b) of telegraphs other Om wireless telegraphs within any part of India.
(2) The Central Government may, by notification in the Official Gazette, delegate to the telegraph authority all or any of its powers under the first proviso to sub-section (1).

The exercise by the telegraph authority of any power so delegated shall be subject to such restrictions and conditions the Central Government may, by the notification, think fit to impose.”

159. The arguments before us have proceeded on the footing that the radio broadcasting and telecasting fall within the definition of “telegraph”, which means that according to Section 4, the Central Government has the exclusive privilege and right of establishing, maintaining and working the radio and television stations and/or other equipment meant for the said purpose. The power to grant licence to a third party for a similar purpose is also vested in the Central Government itself the monopoly-holder. The first proviso says that the Central Government may grant such a licence and if it chooses to grant, it can impose such conditions and stipulate such payments therefor as it thinks fit. The section is absolute in terms and as rightly pointed out by the petitioners’ counsel, it does not provide any guidance in the matter of grant of licence, viz., in which matters the Central Government shall grant the licence and in which matters refuse. The provision must, however, be understood in the context of and having regard to the times in which it was enacted.

160. In Life Insurance Corporation of India etc. v. Manubhai D.Shah (1992 (3) S.C.C.637), Ahmadl,J. (as the learned Chief Justice then was) held that the refusal of Doordarshan to telecast a film “Beyond Genocide” on Bhopal gas disaster (which film was certified by censors and had also received the Golden Lotus Award) on the ground of lacking moderation, restraint, fairness and balance is bad. The court noted that while the Doordarshan conceded that the film depicted the events faithfully, it failed to point out in what respects it lacked in moderation etc. Merely because it was critical of government, it was held, Doordarshan cannot refuse to telecast it. It was pointed out pertinently that the refusal to telecast was not based upon the ground that the list of award-winning films was long and that having regard to inter se priorities among them, it was not possible to telecast the film or that the film was not consistent with the accepted norms evolved by Doordarshan. In this connection, the learned Judge, speaking for the Bench, observed:

“The words “freedom of speech and expression” must, therefore, be broadly construed to include the freedom to circulate one’s views by words of mouth or in writing or through audio-visual instrumentalities. 11, therefore, includes the right to propagate one’s views through the print media or through any other communication channel e.g. The radio and the television. Every citizen of this free country, therefore, has the right to air his or her views through the printing and/or the electronic media subject of course to permissible restrictions imposed under Article 19(2) of the Constitution. The print media,
public educators, so VItal to the growth of a healthy democracy. Freedom to air one’s views is the lifeline of any democratic institution and any attempt to stifle, suffocate or gag this right would sound a death-knell to de- mocracy and would help usher in autocracy or dictatorship. It cannot be gainsaid that modern communication mediums advance public interest by informing the public of the events and developments that have taken place and thereby educating the voters, a role considered significant for the vibrant functioning of a democracy. Therefore, in any set-up, more so in a democratic set-up like ours, dissemination of news and views for popular con- sumption is a must and any attempt to deny the same must be frowned upon unless it falls within the mischief of Article 19(2) of the Constitution. It follows that a citizen for propagation of his or her ideas has a right to publish for circulation his views in periodicals, magazines and journals or through the electronic media since it is well known that these communication channels are great purveyors of news and views and make consid- erable impact on the minds of the readers and viewers and are known to mould public opinion on vital issues of national importance. Once it is conceded, and it cannot indeed be disputed, that freedom of speech and expression includes freedom of circulation and propagation of ideas, there can be no doubt that the right extends to the citizen being permitted to use the media to answer the criticism levelled against the view propagated by him. Every free citizen has an undoubted right to lay what sentiments he pleases before the public; to forbid this, except to the extent permitted by Article 19(2), would be an inroad on his freedom. This freedom must, however, be exercised with circumspection and care must be taken not to trench on the rights of other citizens or to jeopardise public interest. It is manifest from Article 19(2) that the right conferred by Article 19(1)(a) is subject to’ imposition of reasonable restrictions in the interest of, amongst others, public order, decency or morality or in relation to defamation or incitement to an offence. It is, therefore, obvious that subject to reasonable restrictions placed under Article 19(2) a citizen has a right to publish, circulate and disseminate his views and any attempt to thwart or deny the same would offend Article 19(1)(a).”
(Emphasis added)

161. Similarly, it was held in Odyssey Communications Pvt.Ltd. v. Lokvidayan Sanghatana & Ors. (1988 Suppl.(1) S.C.R.486):
“It can no longer be disputed that the right of a citizen to exhibit films on the Doordarshan subject to the terms and con- ditions to be imposed by the Doordarshan is a part of the fundamental right of freedom of expression guaranteed under Article 19(1)(a) of the Constitution of India which can be curtailed only under circumstances which are set out in clause (2) of Article 19 of the Constitution of India. The right is similar to the right of a citizen to publish his views through any other media such as newspapers, magazines, advertisement boardings etc. sub- ject to the terms and conditions of the owners of the media. We hasten to add that what we have observed here does not mean that a citizen has a fundamental right to establish a private broadcasting station, or television centre. On this question, we reserve our opinion. It has to be decided in an appropriate case.”

The- Court held that since the Union of India and Doordarshan have failed to produce any material to show that “the exhibition of the serial was prima facie prejudicial to community”, the refusal cannot be sustained.

162. Be that as it may, by virtue of Section 4, radio and television have remained a monopoly of the Central Government Though in the year 1990, Parliament enacted the ’Prasar Bharati (Broadcasting Corporation of India) Act, 1990, it never came into force because the Central Gov- ernment did not choose to issue a notification appointing the date (from which the Act shall come into force) as contemplated by Section 1(3) of the said Act. Be that as it may, Government monopoly over broadcasting media is nothing unusual and it is not solely because of the fact that India was not an independent country, or a democracy, until 1947-50. Even in well-established democracies, the position has been the same, to start with, as would be evident from a brief resume of the broadcasting history in those countries which we may now proceed to examine. It would help us understand how the freedom of speech and expression is understood in various democracies with reference to and in the context of right to broadcast and telecast – compendiously referred to here-inafter as broadcasting. Broadcasting Law in other Countries:

163. The history of broadcasting in United States and other European countries has been basically different, perhaps because of historical factors besides constitutional principles. In the United States, courts have regarded freedom of speech almost entirely as a liberty against the State, while the constitutional courts in Europe have looked upon it as a value which may sometimes compel the government to act to ensure the right. Constitutions of most of the countries in western Europe, e.g Germany, Italy and France are of post World War-II vintage whereas the First Amendment to the United States Constitution is more than 200 years old. These modem European Constitutions cast an obligation upon their governments to promote broadcasting freedom and not merely to refrain from interfering with it. The Constitution of Germany expressly refers to the right to broadcast as part of freedom of speech and expression. So far as the United Kingdom is concerned, the development there has to be understood in the context of its peculiar constitutional history coupled with the fact that it has no written constitution. Even so, freedom of thought and expression has been an abiding faith with that nation. It has been a refuge for non-conformists and radical thinkers all over the world – a fact, which does not beg any proof And yet broadcasting in all these countries was a State or a public monopoly to start with. Only much later have these countries started licensing private broadcasting stations. The main catalyst for this development has been Article 10 of the European Convention on Human Rights which guarantees freedom of expression to all the citizens of the member countries and refers specifically to radio and television. It says:

“10(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and import information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

(2)The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of na- tional security, territorial integrity or pub- lic safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
(Emphasis added) More about this provision later.

164. In the United States, of course, radio and television have been operated by private undertakings from the very beginning. As pointed out by the United States Supreme Court in Columbia Broadcasting System v. Democratic National Committee [(1973) 412 U.S.94 – 36 L.Ed.2d.772], at the advent of the radio, the government had a choice either to opt for government monopoly or government control and that it chose the latter. The role of the government has been described as one of an overseer” and that of the licensee as a “public trustee”. The position obtaining in each country may now be noted briefly.

UNITED KINGDOM*:

165. The first licence to operate eight radio stations was granted to British Broadcasting Company (BBC) in 1922. In 1927, British Broadcasting Company was replaced by British Broadcasting Corporation. The Sykes Committee, appointed in 1920s, considered the overall state control of radio essential in view of its influence on public opinion but rejected operation of the medium by the State. The other committee appointed in 1920s, viz., Crawford Committee, also recommended that radio should remain a public monopoly in contra-distinction to the United States system of ’free and uncontrolled transmission’. It, however, recommended that the government company should be reorganised as a commission either under *This part of the judgment dealing with the broadcasting law obtaining in United Kingdom and other European countries is drawn largely from the Book “Broadcasting Law A Comparative Study” (1993 Edition) by Eric Barendt, Goodman Professor of Media Law, University College, London and his article “The influence of the German and Italian Constitutional courts on their National Broadcasting systems”, published in ’Public Law, Spring 1991’. a statute or as a public company limited by guarantee. In 1927, a Royal Charter was granted with a view to ensure the independence of BBC, which charter has been renewed from time to time. It prohibits the BBC from expressing its own opinion on current political and social issues and from receiving revenue from advertisement or commercial sponsorship. The power to give directions is reserved to the government. In 1935, the Corporation was licensed by the Post-Master General to provide a public television service, which was introduced in the following year. The monopoly of BBC continued till 1954. In that year, the British Parliament enacted the Television Act, 1954 es- tablishing the Independent Television Authority (ITA) to provide television broadcasting services additional to those of the BBC. The function of the Authority was to enter into contracts with programme companies for the broadcast of commercial programmes. In 1972, ITA was redesignated as Independent Broadcasting Authority (IBA). In 1984, IBA acquired powers in respect of direct broadcasting by satellite.

166. The Peacock Committee appointed in 1980s to examine the question whether BBC should be compelled to take adver- tising, rejected the idea but advocated deregulation of radio and television. The government accepted the proposal and, accordingly, the Parliament enacted the Broadcasting Act, 1990. Section 1 established the Independent Television Commission (ITC) with effect from January 1, 1991 in the place of IBA and the Cable Authority. The ITC is vested with the power to licence and regulate non-BBC television services including Channels 3 and 4 and the proposed Channel 5 besides cable and satellite services. Section 2 requires that the ITC discharge its functions in the manner it considers best to ensure a wide range of TV programme services and also to ensure that the programmes are of high quality and cater to a variety of tastes and interests. In 1991, ITV decided to grant 16 new channels 3 licences to private bodies with effect from January 1, 1993. The allocation was to be made by calling for tenders – the highest bidder getting it – subject, of course, to the bidder satisfying the qualifying criteria. The eligibility criteria prescribed guards against granting licences to non- EEC nationals, political bodies, religious bodies and ad- vertising agencies. It also guards against concentration of these licences in the hands of few individuals or bodies. Sections 6 and 7 impose strict programme controls on the licencees while Sections 8 and 9 regulate the advertisements. The programme controls include political impartiality, eschewing of excessive violence, due regard for decency and good taste among others. The programmes should not also offend religious feelings of any community. Section 10 provides for government control over licenced services. Section 11 provides for monitoring by ITC of the programmes broadcast by licenced services. It is obvious that this Act has no application to BBC, which is governed by the Royal Charter, as stated hereinabove. The Act has also set up a Radio Authority to exercise comparable powers over radio services. It is said that this Act ultimately imposed as many restraints on broadcasters freedom as there were in force earlier.

FRANCE:

167. Para II of the Declaration of the Rights of Man adopted by the National Assembly in 1789** – affirmed in the pre- amble to the Constitution of the Fifth Republic (1958) and treated as binding on all branches of the government – guar- antees freedom of dissemination of thought and opinion. This provision – the child of the French Revolution – has greatly influenced the development of broadcasting freedom in that country. Initially, licences were granted to private radio stations to function along side the public network but with the out-break of the WorldWar 11, the licences of private broadcasters were suspended and later revoked. From 1945 to 1982, broadcasting remained a State monopoly. The government exercised tight control over the radio. An ordinance issued in 1959 legalised government control. In 1964, public monopoly was re-affirmed by law. In 1974, the State Organisation, Office de la radiodiffusion-television Francaise (ORTF) was divided into seven separate institutions catering to radio and television broadcasts in the country. This was done with a
**Para 11 reads: “XI. The unrestrained com- munication of thoughts and opinions being one of the most precious rights of man, every citizen may speak, write and publish freely, provided he is responsible for the abuse of this liberty in cases determined by law. ” At the same time, Para 4 sets out the limitation implicit in all freedoms comprised in the concept of political liberty. It says: ……. The exercise of the natural rights of every man has no other limits than those which are necessary to secure to every other man the free exercise of the same rights; and these limits are determinable only by the law.”

view to introduce competition among the public television companies. The government exercised a significant degree of control over all these units. No private broadcasting was allowed since broadcasting services were regarded as essentially public. The State monopoly in the matter of broadcasting was upheld by Conseil constitutionnel (Constitutional Court) in 1978. In 1982, however, a significant change took place. The State recognised the right of citizens to have a “free and pluralist broadcasting system”. Even so, permission to institute a private broadcasting station was dependent on prior authorization of the government. This provision was upheld by the Conseil Constitutionnel as compatible with Para 11 of the Declaration of the Rights of Man, In 1985, the law was amended providing for private broadcasting and television stations. In 1986, the government sought to privatise one of the public television channels which immediately provoked controversy. The Conseil constitutionnel ruled (in 1986) that principle of pluralism of sources of opinion was one of constitutional significance, against which the concrete provisions of the proposed Bill must be assessed II observed that access to a variety of views was necessary for the ef- fective guarantee of the freedom of speech protected by the Declaration of the Rights of man. At the same time, it found nothing wrong with the decision to favour private television but held that it was for the Parliament to determine the appropriate structure for broadcasting in the light of freedom of communication and other relevant constitutional values, like public order, rights of other citizens and pluralism of opinion. The law was accordingly amended. Wherever private broadcasting is allowed it is governed by a contract between the applicant and the administrative authority.

GERMANY.

168. After the occupying authorities withdrew from West Germany in 1949, the pattern that emerged was one of nine regional public broadcasting organisations. They formed into an association, the Arbeitsgemeinschaft der offentlich- techtlichen Rundfunkanstalten der Bundersrepublik Deutschland (ARD), in 1950 and under its auspices the first public television channel was formed. Article 5 of the Basic Law of 1949 states, “(E)very one shall have the right freely to express and disseminate his opinion by speech, writing, and pictures and freely to inform himself from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films are guaranteed. There shall be no censorship.” In a decision rendered in 1961, the Federal Constitutional Court held inter alia that in view of the shortage of frequencies and the heavy cost involved in establishing a TV station, public broadcasting monopoly is justifiable, though not constitu- tionally mandatory. It held further that broadcasting, whether public or private, should not be dominated by State or by commercial forces and should be open for the transmission of a wide variety of opinion. [(12 BVerfGE 205- 196)]. There was a long battle before private commercial broadcasting was introduced. Many of the States in West Germany were opposed to private commercial broadcasting. The Constitutional Court ruled in 1981 The Third Television Case – 57 BVer EfG 295) that private broadcasting was not inconsistent with Article 5 of the Basic Law but it observed that unlike the press, private broadcasting should not be left to market forces in the interest of ensuring that a wide variety of voices enjoy access to it. It recognised that the regulation of private broadcasting can be different in content from the regulation applying to public broadcasting. In course of time, private television companies came into existence but in the beginning they were confined to cable. In the Fourth Television Case decided in 1986 (73 BVerfGE 118), the court held in the present circumstances, the principal public service functions of broadcastings are the responsibility of the public institutions whereas private broadcasters may be subjected to less onerous programme restrictions. Only after the decision of the Constitutional Court in 1987 were the private companies allocated terrestrial frequencies. It appears that notwithstanding the establishment of private companies , it is the public broadcasting companies which dominate the scene and attract more advertisement revenue. The German constitutional court has exercised enormous influence in shaping the contours of broadcasting law. It has interpreted the broadcasting freedom in a manner wholly different from the United States Supreme Court casting an obligation upon the State to act to ensure the right to all citizens.

ITALY:

169. In Italy too, the broadcasting was under State control, to start with. In 1944, Radio audizioni Italia (RAI) was created having a monopoly in broadcasting. It still holds the concession for public radio and broadcasting. Article 21(1) of the Italian Constitution, 1947 provides that “(E)veryone has the right to express himself freely verbally, in writing, and by any other means”. This provision was relied upon by potential private broadcasters in support of their claim for setting up private commercial stations. In a decision rendered in 1960 (Decision 59/60 (1960) Giurisprudenza Constituzionale 759) the Constitutional Court of Italy upheld RAI’s monopoly with reference to Article 43 of the Constitution which enables legislation to reserve (or expropriate subject to com- pensation) for the state, businesses which are concerned with vital public service or are natural monopolies and which are of pre-eminent public interest. It denied the right of applicants to establish private radio or television stations. it-opined that private broadcasting would inevitably be dominated by a few corporations and, therefore, not in public interest, an aspect which was reaffirmed in a decision in 1974. (Decision 225/74 (1974) Giurisprudenza Constituzionale 1775). It held that broadcasting provides an essential service in a democratic society and could legitimately be reserved for a public institution, provided certain conditions were met. In particular, it said that radio and television should be put under parliamentary, and not executive control to ensure their independence and that rules should be drawn up to guarantee the access of significant political and social groups. Accordingly, the Parliament enacted the Legge in April, 1975 which provided for a greater control by a Parliamentary Commission over the programmes and their content. In 1976, the Constitutional Court ruled (Decision 202/76 (1976) Giurisprudenza Constituzionale 1276) that while at the national level, the monopoly of RAI is valid, at the local level, it is not, since at the local level there is no danger of private monopolies or oligopolies emerging a hope belied by subsequent developments.

This ambiguous decision resulted in establishment of a large number of private radio stations in Italy notwithstanding the re-affirmation of RAI’s national monopoly in 1981 by the court. One of the major rather the largest – private television and radio networks which thus came into existence is the $7 billion Fininvest Company, controlled by Silvio Berlusconi (the Ex-Prime Minister of Italy, who resigned in December, 1994). It owns three major TV networks in Italy.

This development prompted the Constitutional Court, in 1988, to call for a prompt and comprehensive regulation of private broadcasting containing adequate anti-trust and other anti- monopolistic provisions to safeguard pluralism. Accordingly, a law was made in 1990 which devised a system for licensing private radio and television stations.

AUSTRIA:

170. Broadcasting has been a State monopoly in Austria throughout. This monopoly was challenged -as inconsistent with Article IO of the European Convention before the Austrian Constitutional Court which repelled the attack with reference to clause (2) of Article 10. It held that inasmuch as a law made by the State, viz., Constitutional Broadcasting Law had introduced a licencing system within the meaning of the last sentence in Article 10(1) of the Convention and since the said system was intended to secure objectivity and diversity of opinions, no further need be done. It held that the Austrian Broadcasting Corporation with the status of an autonomous public law corporation is a sufficient compliance not only with the national laws but also with Article 10 of the Convention and that granting licence to every applicant would defear the objectives of pluralism, diversity of views and range of opinions underlying the said Austrian law. Several individuals and organisations, who were refused television/radio licences, lodged complaints with the European Human Rights Commission, which referred the matter for the opinion of the European Human Rights Court [EHRC] (at Strasbourg). The court held that the refusal to consider the applications for licence amounted to a violation of Article 10 (Informationsverein Lentia & Ors. v. Austria – 15 Human Rights law Journal 31 – judgment dated 24th November, 1993). The reasoning of the Court is to be found in paragraphs 38 and 39 which read thus:

“38. The Court has frequently stressed the fundamental role of freedom of expression in a democratic society, in particular where, through the press, it serves to impart information and ideas of general interest, which the public is moreover entitled to receive (see, for example, mutatis mutandis, the Observer and Guardian v. the United Kingdom judgment of 26 November 1991, Series A no.216, pp. 29-30, $59 – 13 HRLJ 16 (1992)).

Such an undertaking cannot be successfully accomplished unless it is grounded in the principle of pluralism, of which the State is the ultimate guarantor. This observation is especially valid in relation to audio-visual media, whose programmes are often broadcast very widely.

39. 0 ’all the means of ensuring that these values are respected, a public monopoly is the one which imposes the greatest restrictions on the freedom of expression, namely the total impossibility of broadcasting otherwise than through a national station and, in some cases, to a very limited extent through a local cable station. The far reaching character of such restrictions means that they can only be justified where they correspond to a pressing need.

As a result of the technical progress made over the last decades, justification of these restrictions can no longer today be found in considerations relating to the number of frequencies and channels available; the Government accepted this. Secondly, for the purposes of the present case they have lost much of their raison d’etre in view of the multiplication of foreign programmes aimed at Austrian audiences and the decision of the Administrative Court to recognise the lawfulness of their retransmission by cable (see paragraph 21 above). Finally and above all, it cannot be argued that there are no equivalent less restrictive solutions; it is sufficient by way of example to cite the practice of certain countries which either issue licences subject to specified conditions of variable content or make provision for forms of private participation in the ac- tivities of the national corporation.”

The Court then dealt with the argument that “Austrian market was too small to sustain a sufficient number of stations to avoid regroupings and the constitution of the private monopolies” and rejected it in the following words:

“42. The court is not persuaded by the Government’s argument. Their assertions are contradicted by the experience of several European States, of a comparable size of Austria, in which the coexistence of private and public stations, according to rules which vary from country to country and accompanied by measures preventing the development of private monopolies, shows the fears expressed to be groundless.”

171. The Court finally concluded;

“43. In short, like the Commission, the Court considers that the interferences in issue were disproportionate to the aim pursued and were, accordingly, not necessary in a democratic society. There has therefore been a violation of Article IO.”

172. In our opinion, the reasoning of EHRC is unacceptable for various reasons which we shall set out at the proper stage.

OTHER WESTERN EUROPEAN COUNTRIES.

173. In Denmark, private broadcasting was permitted by Legislation enacted in 1985. In Portugal, private broadcasting was allowed only in 1989, by amending the Constitution. In Switzerland too, private broadcasting has been allowed only recently. Private broadcasting is, however, subject to strict programme control.

UNITED STATES OF AMERICA:

174. In the United States, there was no law regulating the establishment and working of broadcasting companies till 1927. In that year, Radio Act, 1927 was enacted by Congress creating the Federal Radio Commission with authority to grant three year licences to operate radio stations on an assigned frequency. In the year 1934, the Congress enacted the Federal Communications Act. This Act placed the tele- phone and wireless communications under one authority, viz., Federal Communications Commission (FCC). The Commission had the authority to assign frequency for particular areas, to prescribe the nature of the service to be provided for different types of stations and to decide licence ap- plications. The only guideline issued to the Commission was that it should exercise its powers keeping in view the “public interest, convenience and necessity”.. It is under these guidelines that the FCC evolved the Fairness Doctrine in 1949. Notwithstanding the First Amendment, the United States Supreme Court held that the freedom of speech did not entail a right to broadcast without a licence. It held: “unlike other modes of expression, radio inherently is not available to all” vide N.B.C. v. U.S. [319 US 190 (1943)]. The Fairness Doctrine was approved by the Supreme Court in Red Lion Broadcasting Company v. F.C.C. [395 US 367 (1969)]. The Court observed: “Although broadcasting is clearly a medium affected by a First Amendment interest, differences in the characteristics of news media justify differences in the First Amendment standards applied to them Where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle lo posit an unbridgeable First Amendment right to broadcast com- parable to the right of every individual to speak, write or publish … those who are licenced stand no better than those to whom licences are refused A license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizens The people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters which is paramount. It is the right of the public to receive suitable access to social, political, esthetic moral and other ideas and expe- riences which is crucial here In 1967’70, public broadcasting was established on a national basis through the institution of the Corporation for Public Broadcasting (CPB), viz., the Public Broadcasting Service (PBS) for television and National radio service. The CPB is funded by appropriations made by the Congress. In 1978, the Supreme Court affirmed in FCC. v. National Citizens Committee for Broadcasting (436 U.S.775) that:

“in making [its] licensing decisions between competing applicants, the Commission has long given “primary significance” to “diversification of control of the media of mass communications.” This policy is consistent with the statutory scheme and with the First Amendment goal of achieving “the widest possible dissemination of information from diverse and antagonistic sources.”*** Pe- titioners argue that the regulations are in- valid because they seriously restrict the opportunities for expression of both broad- casters and newspapers. But as we stated in Red Lion, “to deny a station licence because ’the public interest’ requires it ’is not a denial of free speech’.” The regulations are a reasonable means of promoting the public interest in diversified mass communications; thus they do not violate the First Amendment rights of those who will be denied broadcast licenses pursuant to them.

175. It is significant to notice the statement that “to deny a station licence because ’the public interest’ requires it ’is not a denial of free speech”’ – a holding to which we shall have occasion to advert to later. Yet another relevant observation of Burger,C.J. is to the following effect: *** As far back as 1948, the Court held in US v. Paramount Pictures (92 L. Ed. 126 1) that no monopoly can be countenanced in the matter of First Amendment rights. “The Commission (F.C.C.) was justified in concluding that the public interest in providing access lo market place of “ideas and expressions ” would scarcely be served by a system so heavily weighted in favour of the financially affluent or those with access to wealth……..
(Emphasis added)

176. In 1970s, however, it was argued that programming restraints were contrary to the First Amendment besides being unproductive. and that broadcasting licencees should enjoy the same rights as newspaper editors and owners. In course of time. the government moved towards deregulation of broadcasting and ultimately in 1987 the Fairness doctrine was repealed by FCC. An attempt by Congress to restore the said rule by an enactment was vetoed by the President.

177. Having examined the systems obtaining in the United States and major west European countries, Eric Barendt says: “These developments illustrate the widely divergent approaches to broadcasting regulation in the United States and (for the most part) in Europe. This is partly an aspect of the more sceptical attitude to government and to administrative regulation which has prevailed in the USA, at any rate. in the last twenty years. The First Amendment has been interpreted as conferring on broadcasters rights, which have not been derived from the comparable provisions in continental countries. Another explanation is that in the USA private commercial broadcasting enjoyed for a long time a de facto monopoly, while in Britain, France, Germany and Italy there was a public monopoly. It is interesting that there has been a continuity to US broadcasting law, which (perhaps sadly) is not found in these European jurisdictions. The Federal Communications Act has remained in force since its passage in 1934, though it has been amended on a handful of occasions.”
(Eric Barendt: Broadcasting Law – Page31)

178. We may now proceed to examine what does “Broadcasting freedom” mean and signify? BROADCASTING FREEDOM Meaning and content of.

179. There is little doubt that broadcasting freedom is implicit in the freedom of speech and expression. The European Court of Human Rights also has taken the view that broadcasting like press is covered by Article 10 of the Convention guaranteeing the right to freedom of expression. But the question is what does broadcasting freedom mean? Broadly speaking, broadcasting freedom can be said to have four facets, (a) freedom of the broadcaster, (b) freedom of the listeners/viewers to a variety of view and plurality of opinion, (c) right of the citizens and groups of citizens to have access to the broadcasting media, and (d) the right to establish private radio/TV stations. We shall examine them under separate heads.

(a) FREEDOM OF THE BROADCASTER:

180. The first facet of the broadcasting freedom is freedom from State or Governmental control, in particular from the censorship by the Government. As the Peacock Committee put it, pre-publication censorship has no place in a free society. Pre-publication censorship is prohibited in Ger- many by Article 5 of the Basic Law. This principle applies in equal measure both to public and private broadcasting. It is, however, necessary to clarify here that public broadcasting is not to be equated with State broadcasting. Both are distinct. Broadcasting freedom in the case of pub- lic broadcasting means the composition of these bodies in a manner so as to genuinely guarantee their independence. In Germany, the Constitutional Court has ruled that freedom from State control requires the legislature to frame some basic rules to ensure that Government is unable to exercise any influence over the selection, content or scheduling of programmes. Laws providing to the contrary were held bad. Indeed, the court also enunciated certain guidelines for the composition and selection of the independent broadcasting authorities on the ground that such a course is necessary to ensure freedom from Government control. It should be noted that an unfettered freedom for licensees to select which programmes appear on their schedule to the complete disregard of the interests of public appears more like a property right than an attribute of freedom of speech. It is for this reason that the German constitutional court opined in 1981 (57 BVerfGE 295) and in 1987 (73 BVerfGE II 8) that television and radio is an instrument of freedom serving the more fundamental freedom of speech in the in- terest of both broadcasters and the public. The court opined that broadcasting freedom is to be protected insofar as it’s exercise promotes the goals of free speech, i.e., an informed democracy and lively discussion of a variety of views. The freedom of broadcaster cannot be understood as merely an immunity from government intervention but must be understood as a freedom to safeguard free speech right of-all the people without being dominated either by the State or any commercial group. This is also the view taken by the Italian and French courts.

(b) LISTENERS/VIEWERS RIGHT.

181. Broadcasting freedom involves and includes the right of the viewers and listeners who retain their interest in free speech. It is on this basis that the European courts have taken the view that restraints on freedom of broadcasters are justifiable on the very ground of free speech. It has been held that freedom of expression includes the right to receive information and ideas as well as freedom to impart them. “The free speech interests of viewers and listeners in exposure to a wide variety of material can best be safe- guarded by the imposition of programme standards, limiting the freedom of radio and television companies. What is important according to this perspective is that the broadcasting institutions are free to discharge their responsibilities of providing the public with a balanced range of programmes and a variety of views. These free speech goals require positive legislative provision to prevent the domination of the broadcasting authorities by the government or by private corporations and advertisers, and perhaps for securing impartiality……..

182. The Fairness Doctrine evolved by FCC and approved by the United States Supreme Court in Red Lion protected the interest of persons by providing a right of reply to personal attacks. But difficulties have arisen in the matter of enforcing the listeners’/viewers’ rights through courts.

(c) ACCESS TO BROADCASTING:

183. The third facet of broadcasting freedom is the freedom of individuals and groups of individuals to have access to broadcasting media to express their views.

The first argument in support of this theory is that public is entitled to hear range of opinions held by different groups so that it can make sensible choices on political and social issues. In particular, these views should be exposed on television, the most important contemporary medium. It is indeed the interest of audience that justified the imposition of impartiality rules and positive programme standards upon the broadcasters. The theoretical foundation for the claim for access to broadcasting is that freedom of speech means the freedom to communicate effectively to a mass audience which means through mass media. This is also the view taken by our court as pointed out supra.

184. An important decision on this as’pect is that of the United States Supreme Court in Columbia Broadcasting System v. Democratic National Committee [412 US 94 (1973)]. The CBS denied to Democrats and a group campaigning for peace in Vietnam any advertising time to comment upon contemporary political issues. Its refusal was upheld by the FCC, but the District of Columbia Circuit Court of Appeals ruled that an absolute ban on short pre-paid editorial advertisements infringed the First Amendment and constituted impermissible discrimination. The Supreme Court, however, allowed the plea of CBS holding that recognition of a right of access of citizens and groups would be inconsistent with the broadcasters’ freedom. They observed that if such right were to be recognised, wealthy individuals and pressure groups would have greater opportunities to purchase advertising time. It rejected the “view that every potential speaker is ’the best judge of what the listening public ought to hear “. (Burger,C.J.) Some Judges expressed the opinion that the broadcaster enjoyed the same First Amendment rights as the newspapers whereas the minority represented by Brennan and Marshall,JJ. was of the view that freedom of groups and individuals to effective expression justified recognition of some access rights to radio and television.

185. It appears that this aspect has been debated more intensively in Italy. The Italian constitutional court held that the monopoly of RAI can be justified only on certain conditions, one of them being that access must be allowed so far as possible to the political, religious and social groups, representing various strands of opinion in society. It opined that statutory provision for access was required by Article 21 of the Constitution guaranteeing freedom of expression. The Italian courts viewed access as a goal or a policy rather than a matter- of fundamental right while at the same time protecting the individual’s right of reply. On this aspect, Barendt says: There are also practical objections to access rights. It may be very difficult to decide, for example, which group are to be given access, and when and how often such programmes are shown. There is a danger some groups will be unduly privileged……..

(d) THE RIGHTS TO ESTABLISH PRIVATE BROADCASTING STATIONS:

186. The French Broadcasting Laws of 1982 and 1989 limit the right of citizens to establish private broadcasting stations in the light of the necessity to respect individual rights, to safeguard pluralism of opinion and to protect public interests such as national security and public order. No private radio or television channel or station can be established without prior authorisation from the regulatory body, Conseil superieur de l’audiovisuel. In Britain, the ITC and the Radio Authority must grant the necessary licence for establishing a private television or radio station. In none of the European countries is there an unregulated right to establish private radio/television station. It is governed by law. Even in United States, it requires a licence from FCC.

187. Let us examine the position obtaining in Italy and Germany where constitutional provisions corresponding to Article 19(1)(a) – indeed more explicit in the case of Germany – obtain. Notwithstanding Article 21, referred to hereinbefore, the Italian Constitutional Court continues to hold that public monopoly of broadcasting is justified, atleast at national level till adequate anti-trust laws are enacted to prevent the development of private media oli- gopolies. In fact, this principle has been applied in the case of local broadcasting and private broadcasting allowed at local level. The Italian Constitutional Court is of the view that Article 21 of the Italian Constitution does no doubt confer right to speak freely but this right is to be exercised by “using means already at one’s disposal, not a right to use public property, such as the airwaves “. The analogy with the right to establish private schools was held to be a weak one and rejected by the Constitutional Court. More particularly, it is of the view that it is impossible to justify recognition of a right which only a handful of individuals and media companies can enjoy in practice.

188. In Germany too, the Constitutional Court has not recognised a right in the citizens to establish private television/radio stations at their choice. The question was left open in what is called the Third Television case. This question has, however, lost its significance in view of the laws made in 1980s permitting private broadcasting. What is relevant is that even after the enactment of the said laws, the Constitutional Court held in Sixth Television case (decided in 1991) that establishment of private broadcasting stations is not a matter of right but a matter for the State (legislature) to decide. If the State, legislation does permit such private broadcasting, it has been held at the same time, it cannot impose onerous programme and advertising restrictions upon them so as to imperil their existence.

189. So far as the United States is concerned,where licencing of private broadcasting stations has been in vogue since the very beginning, the Supreme Court said in C.B.S. v. Democratic Committee [36 L.Ed.2d.772 (1973)] that “(B)ecause the broadcast media utilize a valuable and lim- ited public resource, there is also present an unusual order of First Amendment values”. It then affirmed the holding in Red Lion that “no one has a First Amendment right to a license or to monopolize a radio frequency; to deny a station license because ’the public interest’ requires it ’is not a denial of free speech … ****. The **** It is true that reference to “the public interest” in the above extract must be under- stood in the light of the guidance provided to F.C.C., which inter alia directs the F.C.C. to perform its functions consistent with public interest, the fact yet remains that even the guidance so provided was understood to be within the ambit of First Amendment and consistent with the free speech right guaran- teed by it. It was held in National Broad- casting Company v. United States (1943 319 U.S. 190) that the guidance provided to F.C.C. to exercise its powers “as public convenience, interest or necessity requires” did not violate the First Amendment. court also affirmed that “it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write or pub- lish.” It is relevant to mention here that the distinction made between the Press and the broadcasting media vis-a-vis the First Amendment has been justified by an American jurist Bollinger as based on First Amendment values and not on notions of expediency. He says that in “permitting different treatment of the two institutions. (the) Court has imposed a compromise – a compromise, however, not based on notions of expediency, but rather on a reasoned and principled accommodation of competing First Amendment val- ues”. [75 Michigan law Review 1, 26-36 (1976) quoted in “Constitutional Law” by Stone, Seidman and others (Second Edition) at 1427-28].

190. It is true that with the advances in technology, the argument of few or limited number of frequencies has become weak. Now, it is claimed that an unlimited number of frequencies are available. We shall assume that it is so. Yet the fact remains that airwaves are public property that they are to be utilised to the greatest public good; that they cannot be allowed to be monopolised or hijacked by a few privileged persons or groups; that granting license to everyone who asks for it would reduce the right to nothing and that such a licensing system would end up in creation of oligopolies as the experience in Italy has shown – where the limited experiment of permitting private broadcasting at the local level though not at the national level, has resulted in creation of giant media empires and media magnates, a development not conducive to free speech right of the citizens. It would be instructive to note the lament of the United States Supreme Court regarding the deleterious effect the emergence of media empires had on the freedom of Press in that country. In Miami Herald Publishing Company v. Tor- nillo (1974 – 418 U.S. 24 1), the Court said:

“Access advocates submit that …. the press of today is in reality very different from that known in the early years of our national existence…..
The elimination of competing newspapers in most of our large cities, and the concentration of control of media that results from the only newspaper’s being owned by the same interests which own a television station and a radio station, are important components of this trend towards concentration of control of outlets to inform the public.

The result of these vast changes has been to place in a few hands the power to inform the American people and shape public opinion. Much of the editorial opinion and commentary that is printed is that of syndicated columnists distributed nationwide and, as a result, we are told, on national and world issues there tends to be a homogeneity of editorial opinion, commentary, and interpretive analysis. The abuses of bias and manipulative reportage are, likewise, said to be the result of the vast accumulations of unreviewable power in the modem media empires.

In effect, it is claimed, the public has lost any ability to respond or to contribute in a meaningful way to the debate on issues….
The obvious solution, which was available to dissidents at an earlier time when entry into publishing was relatively inexpensive, today would be to have additional newspapers. But the same economic factors which have caused the disappearance of vast numbers of metropolitan newspapers, have made entry into the market place of ideas served by the print media almost impossible. It is urged that the claim of newspapers to be “surrogates for the public” carries with it a concomitant fiduciary obligation to account for that stewardship. From this premise it is reasoned that the only effective way to insure fairness and accuracy and to provide for some accountability is for government to take affirmative action. The First Amendment
interest of the public in being informed is said to be in peril because the “marketplace
of ideas ” is today a monopoly controlled by the owners of the market……..
(Emphasis added)
Of course, there is another side to this picture: the media gaints in United States are so powerful that Government cannot always manipulate them – as was proved in the Pentagon Papers’ case [New York Times v.United States – (1971) 403 U.S.713)] and in the case of President’s Claim of Privilege [United States v. Nixon – (1974) 418 U.S.683)]. These considerations – all of them emphasised by Consti- tutional Courts of United States and major west-European countries – furnish valid grounds against reading into Article 19(1)(a) a right to establish private broadcasting stations, whether permanent or temporary, stationary or mobile. Same holding holds good for earth stations and other telecasting equipment which the petitioners want to bring in through their chosen agencies. As explained hereinbefore, there is no distinction in principle between a regular TV station and an earth station or other telecasting facility. More about this aspect later.

191. Having noticed the judicial wisdom of the Constitutional Courts in leading democracies, we may turn to the issues arising herein.
The Nature of grounds specified in Article 19(2) of the Constitution

192. A look at the grounds in clause (2) of Article 19, in the interests of which a law can be made placing reasonable restrictions upon the freedom of speech and expression goes to show that they are all conceived in the national interest as well as in the interest of society. The first set of grounds, viz., the sovereignty and in- tegrity of India, the security of the State, friendly relations with foreign States and public order are grounds referable to national interest whereas the second set of grounds, viz., decency, morality, contempt of court, defamation and incitement to offence are conceived in the interest of society. The inter-connection and the inter- dependence of freedom of speech and the stability of society is undeniable. They indeed contribute to and promote each other. Freedom of speech and expression in a democracy ensures that the change desired by the people, whether in political, economic or social sphere, is brought about peacefully and through law. That change desired by the people can be brought about in an orderly, legal and peaceful manner is by itself an assurance of stability and an insurance against violent upheavals which are the hall- mark of societies ruled by dictatorships, which do not permit this freedom. The stability of, say, the British nation and the periodic convulsions witnessed in the dictatorships around the world is ample proof of this truism. The converse is equally true. The more stable the society is, the more scope, it provides for exercise of right of free speech and expression. A society which feels secure can and does permit a greater latitude than a society whose stability is in constant peril. As observed by Lord Sumner in Bowman v. Secular Society Ltd. (1917 A.C.406):

“The words, as well as the acts, which tend to endanger society differ from time to time in proportion as society is stable or insecure in fact, or is believed by its reasonable members to be open to assault. In the present day meetings or processions are held lawful which a hundred and fifty’ years ago would have been deemed seditious, and this is not because the law is weaker or has changed, but because, the times having changed, society is stronger than before…..
\. After all, the question whether a given opinion is a danger to society is a question of the times and is a question of fact. I desire to say nothing that would limit the right of society to protect itself by process of law from the dangers of the movement, whatever that right may be, but only to say that, experience having proved dangers once thought real to be now negligible, and dangers once very possibly imminent to have now passed away, there is nothing in the general rules as to blasphemy and irreligion …. which prevents us from varying their application to the particular circumstances of our time in accordance with that experience.

193. It is for this reason that our founding fathers while guaranteeing the freedom of speech and expression provided simultaneously that the said right cannot be so exercised as to endanger the interest of the nation or the interest of the society, the case may be. This is not merely in the interest of nation and society but equally in the interest of the freedom of speech and expression itself, the reason being the mutual relevance and inter-dependence aforesaid.
194. Reference may also be made in this connection to the decision of the United States Supreme Court in F.C.C. v. National Citizens Committee for Broadcasting [(1978) 436 U.S.775], referred to hereinbefore, where it has been held that “to deny a station licence because the public interest requires it is riot a denial of free speech”. It is significant that this was so said with reference to First Amendment to the United States Constitution which guarantees the freedom of speech and expression in absolute terms. The mason is obvious. The right cannot rise above the national interest and the interest of society which is but another name for the interest of general public. It is true that Article 19(2) does not use the words “national interest”, “interest of society” or “public interest” but as pointed hereinabove, the several grounds mentioned in clause (2) are ultimately referable to the interests of the nation and of the society. As observed by White,j., speaking for the United States Supreme Court, in Red Lion:

“It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee. Associated Press v United States, 326 US 1, 20, 89 L Ed 2013, 2030, 65 S Ct 1416 (1945); New York Times Co. v Sullivan, 376 US 254, 270, 11 L Ed 2d 686, 700, 84 S Ct 710, 95 ALR2d 1412 (1964); Abrams v United States, 250 US 616, 630, 63 L Ed 1173, 1180, 40 S Ct 17 (1919) (Holmes,J., dis- senting). “[S]peech concerning public affairs is more Om self-expression; it is the essence of self-government.” Garrison v Louisiana, 379 US 64, 74-75, 13 L Ed 2d 125, 133, 85 S Ct 209 (1964). See Brennan, The Supreme Court and the Meiklejohn interpretation of the First Amendment, 79 Hary L Rev 1 (1965). It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here.”
(Emphasis added)

195. We may have to bear this in mind while delineating the parameters of this freedom. It would also be appropriate to keep in mind the observations in Columbia Broadcasting System v. Democratic National Committee (36 L.Ed.2d.772), Burger,C.J. quoted the words of Prof, Chafee to the following effect:
“Once we -get away from the bare words of the First Amendment, we must construe it as part of a Constitution which creates a government for the purpose of performing several very important tasks. The First Amendment should be interpreted so as not to cripple the regular work of the government.

196. We must also bear in mind that the obligation of the State to ensure this right to all the citizens of the country (emphasised hereinbefore) creates an obligation upon it to ensure that the broadcasting media is not monopolised, dominated or hijacked by privileged, rich and powerful interests. Such monopolisation or domination cannot but be prejudicial to the freedom of speech and expression of the citizens in general – an aspect repeatedly stressed by the Supreme Court of United States and the Constitutional Courts of Germany and Italy.

197. The importance and significance of television in the modern world needs no emphasis. Most people obtain the bulk of their information on matters of contemporary interest from the broadcasting medium.

The television is unique in the way in which it intrudes into our homes. The combination of picture and voice makes it an irresistibly attractive medium of presentation. Call it idiot box or by any other pejorative name, it has a tremendous appeal and influence over millions of people. Many of them are glued to it for hours on end each day. Television is shaping the food habits, cultural values, social mores and what not of the society in a manner no other medium has done so far. Younger generation is particularly addicted to it. It is a powerful instrument, which can be used for greater good as also for doing immense harm to the society. It depends upon how it is used. With the advance of technology, the number of channels available has grown enormously. National borders have become meaningless. The reach of some of the major networks is international they are not confined to one country or one region. It is no longer possible for any government to control or manipulate the news, views and information avail- able to its people. In a manner of speaking, the technological revolution is forcing inter-nationalism upon the world. No nation can remain a fortress or an island in itself any longer. Without a doubt, this technological revolution is presenting new issues, complex in nature – in the words of Burger,C.J., “complex problems with many hard questions and few easy answers”. Broadcasting media by its very nature is different from Press. Airwaves are public property. The fact that a large number of frequencies/channels are available does not make them anytheless public property. It is the obligation of the State under our constitutional system to ensure that they are used for public good.

198. Now, what does this public good mean and signify in the context of the broadcasting medium? In a democracy, people govern themselves and they cannot govern themselves properly unless they are aware – aware of social, political, economic and other issues confronting them. To enable them to make a proper judgment on those issues, they must have the benefit of a range of opinions on those issues. Right to receive and impart information is implicit in free speech. This plurality of opinions, views and ideas is indispensable for enabling them to make an informed judgment on those issues to know what is their true interest, to make them responsible citizens, to safeguard their rights as also the interests of society and State. All the constitutional courts of leading democracies, reference to which has been made hereinbefore, have recognised and reiterated this aspect. This is also the view of the European Court of Human Rights. In Castells v. Spain (14 EHRR 445) – quoted in 1994 Public Law at 524 – the court held that free political debate is “at the very core of the concept of a democratic society”.

199. From the standpoint of Article 19(1)(a), what is paramount is the right of the listeners and viewers and not the right of the broadcaster – whether the broadcaster is the State, public corporation or a private individual or body. A monopoly over broadcasting, whether by government or by anybody else, Is inconsistent with the free speech right of the citizens. State control really means governmental control, which in turn means, control of the political party or parties in power for the time being. Such control is bound to colour the views, information and opinions conveyed by the media. The free speech right of the citizens is better served in keeping the broadcasting media under the control of public. Control by public means control by an independent public corporation or corporations, as the case may be, formed under a statute. As held by the Constitutional Court of Italy, broadcasting provides an essential service in a democratic society and could legitimately be reserved for a public institution, provided certain conditions are met. The corporation(s) must be constituted and composed in such a manner as to ensure its independence from government and its impartiality on public issues. When presenting or discussing a public issue, it must be ensured that all aspects of it are presented in a balanced manner, without appearing to espouse any one point of view. This will also enhance the credibility of the media to a very large extent; a controlled media cannot command that level of credibility. For the purpose of ensuring the free speech rights of the citizens guaranteed by Article 19(1)(a), it is not necessary to have private broadcasting stations, as held by the Constitutional Courts of France and Italy. Allowing private broadcasting would be to open the door for powerful economic, commercial and political interests, which may not prove beneficial to free speech right of the citizens – and certainly so, if strict programme controls and other controls are not prescribed. The analogy with press is wholly inapt. Above all, airwaves constitute public property. While, the freedom guaranteed by Article 19(1)(a) does include the right to receive and impart information, no one can claim the fundamental right to do so by using or employing public property. Only where the statute permits him to use the public property, then only – and subject to such conditions and restrictions as the law may impose – he can use the public property, viz., airwaves. In other words, Article 19(1)(a) does not enable a citizen to impart his information, views and opinions by using the airwaves. He can do so without using the airwaves. It need not be emphasised that while broadcasting cannot be effected without using airwaves, receiving the broadcast does not involve any such use. Airwaves, being public property must be utilised to advance public good. Public good lies in ensuring plurality of opinions, views and ideas and that would scarcely be served by private broadcasters, who would be and who are bound to be actuated by profit motive. There is a far greater likelihood of these private broadcasters indulging in mis- information, disinformation and manipulation of news and views than the government-controlled media, which is at least subject to public and parliamentary scrutiny. The experience in Italy, where the Constitutional Court allowed private broadcasting at the local level while denying it at the national level should serve as a lesson; this limited opening has given rise to giant media oligopolies as mentioned supra. Even with the best of programme controls it may prove counter-productive at the present juncture of our development; the implementation machinery in our country leaves much to be desired which is shown by the ineffectiveness of the several enactments made with the best of the intentions and with most laudable provisions; this is a reality which cannot be ignored. It is true that even if private broadcasting is not allowed from Indian soil, such stations may spring up on the periphery of or outside our territory, catering exclusively to the Indian public. Indeed, some like stations have already come into existence. The space, it is said, is saturated with communication satellites and that they are providing and are able to pro vide any number of channels and frequencies. More technological developments must be in the offing. But that cannot be a ground for enlarging the scope of Article 19(1 (a). It may be a factor in favour of allowing private broadcasting – or it may not be. It may also be that the Parliament decides to increase the number of channels under the Doordarshan, diversifying them into various fields, commercial, educational, sports and so on. Or the Parlia- ment may decide to permit private broadcasting, but if it does so permit, it should not only keep in mind the experience of the countries where such a course has been permitted but also the conditions in this country and the compulsions of technological developments and the realities of situation resulting from technological developments. We have no doubt in our mind that it will so bear in mind the above factors and all other relevant circumstances. We make it clear, we are not concerned with matters of policy but with the content of Article 19(1)(a) and we say that while public broadcasting is implicit in it, private broadcasting is not. Matters of policy are for the Parliament to consider and not for courts. On account of historical fac- tors, radio and television have remained in the hands of the State exclusively. Both the networks have been built up over the years ’With public funds. They represent the wealth and property of the nation. It may even be said that they represent the material resources of the community within the meaning of Article 39(b). They may also be said to be ’facilities’ within the meaning of Article 38, They must be employed consistent with the above articles and consistent with the constitutional policy as adumbrated in the preamble to the Constitution and Parts III and IV. We must reiterate that the Press whose freedom is implicit in Article 19(1)(a) stands on a different footing. The petitioners – or the potential applicants for private broadcasting licenses – cannot invoke the analogy of the press. To repeat, airwaves are public property and better remain in public hands in the interest of the very freedom of speech and expression of the citizens of this country.

200. It would be appropriate at this stage to deal with the reasoning of the European Court of Human Rights in the case of Informationsverein Lentia. The first thing to be noticed in this behalf is the language of Article 10(1) of the European convention, set out hereinbefore. Clause (1) of Article 10 not only says that everyone has the right to freedom of expression but also says that the said right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. The clause then adds that Article 10 shall not, however, prevent the State from requiring the licensing of broadcasting, television or cinema enterprises. Clause (2) of course is almost in para materia with clause (2) of Article 19 of our Constitution. What is, however, significant is that Article 10(1) expressly conferred the right “to receive and impart information and ideas without interference by public authority”. The only power given to public authority, which in the context means the State/Government, is to provide the requirement of license and nothing more. It is this feature of clause (1) which has evidently influenced the decision of the European court. The decision cannot, therefore, be read as laying down that the right of free expression by itself implies and includes the right to establish private broadcasting stations. It is necessary to emphasise another aspect. While I agree with the statement in Para 38 to the effect that freedom of expression is fundamental to a democratic society and that the said right “cannot be successfully accomplished unless it is grounded in the principle of pluralism, of which the State is the ultimate guarantor”, I find it difficult to agree that such pluralism cannot be ensured by a public/statutory corporation of the nature already in existence in Austria and that it is necessary to provide for private broadcasting to ensure pluralism, as held in Para 39. The fact that as a result of technological advances, the argument of limited number of frequencies is no longer available, cannot be a ground for reading the right to private broadcasting into freedom of expression. The decision as such is coloured by the particular language of clause (1) of Article 10, as stated above. I must also say that the last observation in Para 39 viz., that there can be other less restrictive solutions is also not a ground which we can give effect to under the legal system governing us. The question in such cases always is whether the particular restriction placed is reasonable and valid and not whether other less restrictive provisions are possible. I may also mention that the arguments which weighed with other constitutional courts, viz., that airwaves represent public property and that they cannot be allowed to be dominated or monopolised by powerful commercial, economic and political interests does not appear to have been argued or considered by the European Court. As has been emphasised by other constitutional courts, the very free speech interest of the citizens requires that the broadcasting media is not dominated or controlled by such powerful interests.

201. There is yet another aspect of the petitioners’ claim which requires to be explained. According to their own case, they have sold the telecasting rights with respect to their matches to a foreign agency with the understanding that such foreign agency shall bring in its own equipment and personnel and telecast the matches from the Indian territory. Once they have sold their rights, the foreign agency is not their agent but an independent party. It is a principal by itself The foreign agency cannot claim or enforce the right guaranteed by Article 19(1)(a). Petitioners cannot also claim because they have already sold the rights. In other words, the right to telecast is no longer with them but with the foreign firm which has purchased the telecasting rights. For this reason too, the petitioners’ claim must be held to be unacceptable.

202. Having held that Article 19(1)(a) does not encompass the right to establish, maintain or run broadcasting stations or broadcasting facilities, we feel it necessary to clarify the true purport of the said freedom in the context of broadcasting media. This is necessary to ensure that I am not misunderstood or misinterpreted. Indeed, what I propose to say hereafter flows logically from what I have said heretofore.

204. All the Constitutional Courts whose opinions have been referred to hereinbefore have taken the uniform view that in the interest of ensuring plurality of opinions, views, ideas and ideologies, the broadcasting media cannot be allowed to be under the monopoly of any one – be it the monopoly of Government or or an individual, body or Organisation. Government control in effect means the control of the po- litical party or parties in power for the time being. Such control is bound to colour and/or the electronic media subject of and in some cases, may even distort the news, views and opinions expressed through the media. It is not conducive to free expression of contending viewpoints and opinions which is essential for the growth of a healthy democracy. I have said enough hereinbefore in support of the above propositions and we do not think it necessary to repeat the same over again here. I have also mentioned hereinbefore that for ensuring plurality of views, opinions and also to ensure a fair and balanced presentation of news and public issues, the broadcast media should be placed under the control of public, i.e., in the hands of statutory corporation or corporations, as the case may be. This is the implicit command of Article 19(1)(a). I have also stressed the importance of constituting and composing these corporations in such a manner that they ensure impartiality in political, economic and social and other matters touching the public and to ensure plurality of views, opinions and ideas. This again is the implicit command of Article 19(1)(a). This medium should promote the public interest by providing information, knowledge and entertainment of good quality in a balanced way. Radio and Television should serve the role of public educators as well. Indeed, more than one corporation for each media can be provided with a view to provide competition among them (as has been done in France) or for convenience, as the case may be.

205. Now, coming to the Indian Telegraph Act, 1885, a look at its scheme and provisions would disclose that it was meant for a different purpose altogether. When it was enacted, there was neither Radio***** nor, of course, television, though it may be that radio or television fall within the definition of “telegraph” in Section 3(1). Except Section 4 and the definition of the expression “telegraph”, no other provision of the Act appears to be relevant to broadcasting media. Since the validity of Section 4(1) has not been specifically challenged before us, we decline to express any opinion thereon. The situation is undoubtedly unsatisfactory. This is the result of the legislation in this country not keeping pace with the technological developments. While all the democracies in the world have enacted laws specifically governing the broadcasting media, this country has lagged behind, rooted in the Telegraph Act of 1885 which is wholly inadequate and unsuited to an important medium like radio and television, i.e., broadcasting media. It is absolutely essential, in the interests of public, in the interests of the freedom of speech and expression guaranteed by Article 19(1)(a) and with a view to avoid confusion, uncertainty and consequent litigation that Parliament steps in soon to fill the void by enacting a law or laws, as the case may be, governing the broadcasting media, i.e., both radio and television media. The question whether to permit private broadcasting or not is a matter of policy for the Parliament to decide. If it decides to permit it, it is for the Parliament to decide, subject to what conditions and restrictions should it be permitted. (This aspect has been dealt with supra.) The fact remains that private broadcasting, even if allowed, should not be left to market forces, in the interest of ensuring that a wide variety of voices enjoy access to it.

SUMMARY
206. In this summary too, the expres- ***** It was only in 1895 that G.Marconi suc- ceeded in transmitting wireless signals be- tween sending and receiving points without the use of connecting wires over a distance of tw o kilometers. sion “broadcasting media” means the electronic media now represented and operated by AIR and Doordarshan and not any other services.

I (a).Game of cricket, like any other sports event,provides entertainment. Providing entertainment is implied in freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution subject to this rider that where speech and conduct are joined in a single course of action, the free speech values must be balanced against competing societal interests, The petitioners (CAB and BCCI) therefore have a right to organise cricket matches in India, whether with or without the participation of foreign teams. But what they are now seeking is a license to telecast their matches through an agency of their choice – a foreign agency in both the cases – and through telecasting equipment brought in by such foreign agency from outside the country. In the case of Hero Cup Matches organised by CAB, they wanted uplinking facility to INTELSAT through the government agency VSNL also. In the case of later international matches organised by BCCI they did not ask for this facility for the reason that their foreign agent has arranged direct uplinking with the Russian satellite Gorizon. In both cases, they wanted the permission to import the telecasting equipment along with the personnel to operate it by moving it to places all over the country wherever the matches were to be played. They claimed this license, or permission, as it may be called, as a matter of right said to be flowing from Article 19(1)(a) of the Constitution. They say that the authorities are bound to grant such license/ permission, without any conditions, all that they are entitled to do, it is submitted, is to collect technical fees wherever their services are availed, like the services of VSNL in the case of Hero Cup Matches. This plea is in principle no different from the right to establish and operate private telecasting stations. In principle, there is no difference between a permanent TV station and a temporary one; similarly there is no distinction in principle between a stationary TV facility and a mobile one; so also is there no distinction between a regular TV facility and a TV facility for a given event or series of events. If the right claimed by the petitioners (CAB and BCCI) is held to be constitutionally sanctioned one, then each and every citizen of this country must also be entitled to claim similar right in respect of his event or events, as the case may be. I am of the opinion that no such right flows from Article 19(1)(a).

(b)Airwaves constitute public property and must be utilised for advancing public good. No individual has a right to utilise them at his choice and pleasure and for purposes of his choice including profit. The right of free speech guaranteed by Article 19(1)(a) does not include the right to use airwaves, which are public property. The airwaves can be used by a citizen for the purpose of broadcasting only when allowed to do so by a statute and in accordance with such statute. Airwaves being public property, it is the duty of the State to see that airwaves are so utilised as to advance the free speech right of the citizens which is served by ensuring plurality and diversity of views, opinions and ideas. This is imperative in every democracy where freedom of speech is assured. The free speech right guaranteed to every citizen of this country does not encompass the right to use these airwaves at his choosing. Conceding such a right would be detrimental to the free speech rights of the body of citizens inasmuch as only the privileged few – powerful economic, commercial and political interests – would come to dominate the media. By manipulating the news, views and information, by indulging in misinformation and disinformation, to suit their commercial or other interests, they would be harming and not serving – the principle of plurality and diversity of views, news, ideas and opinions. This has been the experience of Italy where a limited right, i.e., at the local level but not at the national level was recognised. It is also not possible to imply or infer a right from the guarantee of free speech which only a few can enjoy.

(c) Broadcasting media is inherently different from Press or other means of communication/information. The analogy of press is misleading and inappropriate. This is also the view expressed by several Constitutional Courts including that of the United States of America.

(d) I must clarify what I say; it is that the right claimed by the petitioners (CAB and BCCI) – which in effect is no different in principle from a right to establish and operate a private TV station – does not flow from Article 19(1)(a); that such a right is not Implicit in it. The question whether such right should be given to the citizens of this country is a matter of policy for the Parliament. Having regard to the revolution in information technology and the developments all around, Parliament may, or may not, decide to confer such right. If it wishes to confer such a right, it can only be by way of an Act made by Parliament. The Act made should be consistent with the right of free speech of the citizens and must have to contain strict programme and other controls as has been provided for example, in the Broadcasting Act, 1991 in the United Kingdom. This is the implicit command of Article 19(1)(a) and is essential to preserve and promote plurality and diversity of views, news, opinions and ideas.

(e) There is an inseparable inter-connection between freedom of speech and the stability of the society, i.e., stability of a nation-State. They contribute to each other. Ours is a nascent republic. We are yet to achieve the goal of a stable society. This country cannot also afford to read into Article 19(1)(a) an unrestricted right to licensing (right of broadcasting) as claimed by the petitioners herein.

(f) In the case before us, both the petitioners have sold their right to telecast the matches to a foreign agency. They have parted with the right. The right to telecast the matches, including the right to import, install and operate the requisite equipment is thus really sought by the foreign agencies and not by the petitioners. Hence, the question of violation of their right under Article 19(1)(a) resulting from refusal of license/permission to such foreign agencies does not arise.

2. The Government monopoly of broadcasting media in this country is the result of historical and other factors. This is true of every other country, to start with. That India was not a free country till 1947 and its citizens did not have constitutionally guaranteed fundamental freedoms till 1950 coupled with the fact that our Constitution is Just about forty five years into operation explains the Government monopoly. As pointed out in the body of the judgment, broadcasting media was a monopoly of the Government, to start with, in every country except the United States where a conscious decision was taken at the very beginning not to have State monopoly over the medium. Until recently, the broadcasting media has been in the hands of public/statutory corporations in most of the West European countries. Private broadcasting is comparatively a recent phenomenon. The experience in Italy of allowing private broadcasting at local level (while prohibiting it at national level) has left much to be desired. It has given rise to powerful media empires which development is certainly not conducive to free speech right of the citizens.

3 (a). It has been held by this Court – and rightly – that broadcasting media is affected by the free speech right of the citizens guaranteed by Article 19(1)(a). This is also the view expressed by all the Constitutional Courts whose opinions have been referred to in the body of the judgment. Once this is so, monopoly of this medium (broadcasting media), whether by Government or by an individual, body or Organisation is unacceptable. Clause (2) of Article 19 does not permit a monopoly in the matter of freedom of speech and expression as is permitted by clause (6) of Article 19 vis-a-vis the right guaranteed by Article 19(1)(g).

(b) The right of free speech and expression includes the right to receive and impart information. For ensuring the free speech right of the citizens of this country, it is necessary that the citizens have the benefit of plurality of views and a range of opinions on all public issues. A successful democracy posits an ’aware’ citizenry. Diversity of opinions, views, ideas and ideologies is essential to enable the citizens to arrive at informed judgment on all issues touching them. This cannot be provided by a medium controlled by a monopoly – whether the monopoly is of the State or any other individual, group or Organisation. As a matter of fact, private broadcasting stations may perhaps be more prejudicial to free speech right of the citizens than the government controlled media, as explained in the body of the judgment. The broadcasting media should be under the control of the public as distinct from Government. This is the command implicit in Article 19(1)(a). It should be operated by a public statutory corporation or corporations, as the case may be, whose constitution and composition must be such as to ensure its/their impartiality in political, economic and social matters and on all other public issues. It/they must be required by law to present news, views and opinions in a balanced way ensuring pluralism and diversity of opinions and views. It/they must provide equal access to all the citizens and groups to avail of the medium.

4. The Indian Telegraph Act, 1885 is totally inadequate to govern an important medium like the radio and television, i.e., broadcasting media. The Act was intended for an altogether different purpose when it was enacted. This is the result of the law in this country not keeping pace with the technological advances in the field of information and communications. While all the leading democratic countries have enacted laws specifically governing the broadcasting media, the law in this country has stood still, rooted in the Telegraph Act of 1885. Except Section 4(1) and the definition of telegraph, no other provision of the Act is shown to have any relevance to broadcasting media. It is, therefore, imperative that the parliament makes a law placing the broadcasting media in the hands of a public/statutory corporate or the corporations, as the case.may be. This is necessary to safeguard the interests of public and the interests of law as also to avoid uncertainty, confusion and consequent litigation.

5. The CAB did not ever apply for a license under the first proviso to Section 4 of the Telegraph Act nor did its agents ever make such an application. The permissions, clearances or exemption obtained by it from the several departments (mentioned in judgment) are no substitute for a license under Section 4(1) proviso. In the absence of such a license, the CAB had no right in law to have its matches telecast by an agency of its choice. The legality or validity of the orders passed by Sri N.Vithal, Secretary to the Government of India, Telecommunications Department need not be gone into since it has become, academic. In the facts and circumstances of the case, the charge of malafides or of arbitrary and authoritarian conduct attributed to Doordarshan and Ministry of Information and Broadcasting is not acceptable. No opinion need be expressed on the allegations filed by BCCI in these matters. Its intervention was confined to legal questions only.

6. Now the question arises, what is the position till the Central Government or the Parliament takes steps as contem- plated in Para (4) of the summary, i.e., if any sporting event or other event is to be telecast from the Indian soil? The obvious answer flowing from the judgment [and Paras (1) and (4) of this summary is that the organiser of such event has to approach the, nodal Ministry as specified in the de- cision of the Meeting of the Committee of Secretaries held on November 12, 1993. I have no reason to doubt that such a request would be considered by the nodal Ministry and the AIR and Doordarshan on its merits, keeping in view the public interest. In case of any difference of opinion or dispute regarding the monetary terms on which such telecast is to be made, matter can always be referred to an Arbitrator or a panel of Arbitrators. In case, the nodal Ministry or the AIR or Doordarshan find such broadcast/telecast not feasible, then they may consider the grant of permission to the organisers to engage an agency of their own for the purpose. Of course, it would be equally open to the nodal Ministry (Government of India) to permit such foreign agency in addition to AIR/ Doordarshan, if they are of the opinion that such a course is called for in the circumstances.

207. For the above reasons, the appeals, writ petition and applications are disposed of in the above terms. No costs.

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JUDGEMENT

B.S. YADAV, J.

( 1 ) THIS order will dispose of both the above titled appeals as they arise out of the same passed by State Consumer Disputes Redressal Commission, Karnataka at Bangalore in Complaint No. 70/92. The said complaint was filed by Mr. S. P. Dhavaskar (appellant in F. A. No. 203 and respondent in F. A. No. 342 and hereinafter referred to as complainant) against Housing Commissioner, Karnataka Housing Board, (respondent in F. A. No. 203 and appellant in F. A. No. 342 and hereinafter referred to as the opposite party ). The case of the complainant before the State Commission was that pursuant to an advertisement issued by the opposite party for allotment of houses under HUDCO scheme he applied for allotment of a house by depositing a sum of Rs. 5,000/- on 10th April, 1987. The opposite party allotted House No. MIG-42, Yelahanka, Bangalore in favour of the complainant on 20th February, 1990. The complainant as per the instructions contained in the allotment letter deposited Rs. 80,000/- in four installment of Rs. 20,000/- each on 19th April, 1990. 17th May, 1990, 20th June, 1990 and 21st July, 1990. The complainant further made a deposit of Rs. 81, 000/- on 25th September, 1990. Thus in all he paid a sum of Rs. 1,66,000/ -.

( 2 ) THE complainant next averred that as per the advertisement issued by the opposite party, the construction of the houses was to be completed within two years from 3rd March, 1987 but the opposite party did not deliver the possession of the allotted house during that period in spite of repeated reminders. The complainant received an intimation on 21st March, 1992 stating that the construction of the houses was not upto the expected level because of the use of low cost technology and so they have developed distress and might not last long and so the opposite party was unable to hand over the possession of the allotted house to the complainant. The opposite party further intimated the complainant and other allottees either to take refund of the amounts already deposited without interest or opt for allotment of new house (ground plus two floor tenements) in lieu of the houses already allotted and agreeing to bear difference in cost. According to the complainant the service rendered by the opposite party is deficient in not delivering possession of a properly constructed house. He claimed compensation in the sum of Rs. 4,65,080/- on various counts including refund of Rs. 1,66,000/ -.

( 3 ) THE case of the opposite party as appears from memorandum filed in First Appeal No. 342, the Karnataka Housing Board (for short the Board) formulated a composite housing scheme of constructing 707 houses adopting a new technology by using soil stablished mud blocks to popularise the low cost technology. Such houses were constructed and one house was allotted to the complainant. However, during the month of September and November, 1991 due to heavy rains in Bangalore it was noticed that the soil stablished mud blocks used for superstructure have shown signs of distress and in the circumstances a three member committee was appointed for inspection and giving report. Thereafter, the Board tentatively decided to give alternative houses or refund the deposits to the allottees without interest as per the Karnataka Housing Board Rules and Regulations. As already noticed above the allotment of new house (ground plus two floor tenements) in lieu of the house already allotted was to be made to the allottee who agreed to bear the difference in the cost.

( 4 ) IT appears that instead of giving his option to the Board, the complainant filed complaint before the State Commission for the relief mentioned above. The State Commission held that the opposite party had collected huge funds of money from the complainant and after lapse of nearly two years the construction was found not upto the mark and the option given to the allottee to take refund of the money deposited without interest was clearly unreasonable and it is a clear case of deficiency in service. The State Commission directed the opposite party to refund the sum of Rs. 1,66,000/- with interest at 18% from the respective date of deposits upto the date of payment. The complainant was not granted any compensation for mental agony, loss etc.

( 5 ) AS noticed above the complainant has filed First Appeal No. 203/93 while the opposite party has filed First Appeal No. 342/93. The complainant in his appeal has prayed for compensation loss and damages for mental agony. According to the complainant, he was staying in rented house and had paid Rs. 600/- per month as rent for a period of four years i. e. from March, 1989 to March, 1992 and also obtained loan of Rs. 1,23,000/- from H. D. F. C. at 14% interest and another sum of Rs. 43,000/- from outside agencies at 24% interest per annum.

( 6 ) THE case of the appellant in Appeal No. 342/93 is that no interest can be allowed on the deposits made by the allottee. It is also pleaded that transaction in question is a contractual obligation and enforcement of such contract or otherwise cannot be entertained by consumer forums constituted under Consumer Protection Act, 1986.

( 7 ) BEFORE proceeding further we may mention here that Appeal No. 203 has been filed after a delay of 13 days while Appeal No. 342/93 has been filed with 8 days delay. In both the cases application for condonation of delay has been filed. Considering the grounds mentioned in these applications and also taking into consideration that delay is of only a few days we condone the delay in both the appeals.

( 8 ) FIRST we take up F. A. No. 342/93 filed by the opposite party. The contention of the appellant in that appeal is that for a constituted under the Consumer Protection Act have no jurisdiction to dispose of such complaints and have to be rejected outrightly. However, this Commission held in (U. P. Avas Evam Vikas Pradhikaran v. Garima Shukla and others) that where the Housing and Development Boards are engaged in serving the public in the matter of providing houses, acquisition of land, development of sites, construction of houses thereon and allotment of plots/houses to the public for consideration are rendering service to the public. This view has been upheld by the Supreme Court in Civil Appeal No. 6237 of 1990 titled (Lucknow Development Authority v. M. K. Gupta) by that order the Supreme Court disposed of some other similar Appeals. Hence, the above objection of the opposite party is overruled.

( 9 ) THE other ground taken in that appeal is that under the Karnataka Housing Board Rules and Regulations allottees are not entitled to interest on deposits. As noticed earlier, the State Commission has held that the opposite party is guilty of deficiency in service as huge sums of money has been collected from the complainant and after lapse of nearly two years, he was informed that the construction of the house was not upto the mark and advised the complainant to take refund of the money deposited without interest or to opt for an alternative flat and agree to pay the difference in the price. The Boards stand is totally unreasonable. Before taking up the construction of the superstructure of the houses with soil stabilised mud blocks the Board ought to have seen whether such houses could withstand the heavy rains. When the Board found that the houses are not upto the mark it offered to the allottee to opt for an alternative house at the increased price or to take refund without interest. The said offer was not in any way a reasonable concession granted to the allottee. A person who has deposited huge sums cannot be asked to take back the refund after two years without interest or to opt for alternative house at increased price which might be beyond his financial capacity. Thus we uphold the finding of the State Commission that the Board has been gross negligent in rendering service and that it was justified in awarding interest to the complainant who had borrowed money from H. D. F. C. and other agencies on interest for depositing with the Board in the hope that habitable house would be allotted to him after a reasonable time. Hence First Appeal No. 342/93 is liable to be dismissed.

( 10 ) NOW we take up First Appeal No. 203/93. The complaint was filed by the complainant in 1992. Upto that time the amount deposited with the Board, was not refunded to him. The argument that the complainant had not given his option asked for vide letter dated 21st March, 1992 has no force. If the complainant has not given his option for the alternative house, the amount ought to have been refunded to him. During all these years the complainant must have suffered mental agony as huge amount borrowed by him from different agencies was lying blocked with the Board and he was not getting any benefit from the deposits. It is common knowledge that the prices of real estate are rising day by day. The complainant cannot now get a house at the amount deposited by him. Considering all these facts we think that the complainant is entitled to some compensation in respect of the various items pleaded in the complaint. We assess the compensation at Rs. 25,000/ -.

( 11 ) FOR the reasons given above First Appeal No. 342/94 is dismissed with costs which we assess at Rs. 1,000/ -. First Appeal No. 203/93 is partly allowed. While maintaining the order of the State Commission we further direct that the opposite party will pay Rs. 25,000/- to the complainant within two months from the date of receipt of the order failing which the said amount will also carry interest at the rate of 18% per annum from the date of this order till realisation. In First Appeal No. 203/93 we leave the parties to bear their own costs. Order accordingly.

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BENCH: VENKATACHALA N. (J) KULDIP SINGH (J) AHMAD SAGHIR S. (J)

CITATION: 1995 AIR 2089 1995 SCC (4) 646 JT 1995 (5) 205 1995 SCALE (4)113

JUDGMENT: THE 2ND DAY OF JULY,1995
present:
Hon’ble Mr.Justice Kuldip singh
Hon’ble Mr.Justice N.Venkatachala
Hon’ble Mr.Justice S.Saghir Ahmad
Mr.Shanti Bhushan,Mr.Tapas Ray, Mr.A.K.Ganguli,
Mr.P.P.Rao and Mr.Dhruv kr.Mukherjee, Sr.Advs.,
Mr.H.Puri, Mr.S.K.Puri,(Mr.Raj Kumar Gupta,Advs.for
Mr.Rajesh,Adv.,(m/s.Dilip Sinha,J.R.Das,Advs for
M/s.Sinha and Das,Advs.,Mr.Indra Makwana,Mr.V.B.Joshi,
Mr. Umesh Bhagwat,Mr.Alok Singh,Mr.Rathin Das,Mr.Abhijit Sengupta,Mr.A.D.Sikri,Mr.A.K.Chakravarti,Mr.A.Mariarputham,
Ms.Aruna Mathur,Mr.Charavorty,Mr.Bijan Kumar Ghosh,
Mr.P.P.Choudhary and Mr.R.K.Gupta,Advs.with them for the appering parties.

J U D G M E N T

The following Judgment of the court was delivered:

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 4434A-34D OF 1986
WITH
CIVIL APPEAL NOs. 4937/85.5676-78/85
WITH
I.A.No.1 IN C.A. Nos.5676-78/85 and CMP NO.23111/86 IN C.A. NO.4937/85

Bramchari Sidheswar Shai & Ors.etc.
Versus
state of West Bengal etc.

J U D G M E N T

VENKATACHALA, J.
The sustainability of the common judgment of Division Bench of the calcutta High Court rendered in appeals preferred against the order of dismissal of a Writ Petition by a learned single judge of the same High Court by which the claim of the followers of Ramakrishna that an educational institution established and administered by their Ramakrishna Mission receives protection under Article 30(1) of the Constitution of India being an educational institution established and administered in exercise of their fundamental right as a minority based on religion and under Article 26(a) of the constitution of India being an educational institution established and maintained in exercise of their fundamental right as a religious denomination or section thereof,is upheld, since arises for our consideration in the present appeals filed against that judgment, all of them could be disposed of by this judgment.
As the writ petition filed in the High Court, which has led to the present appeals related to Ramakrishna Mission Vivekananda Centenary College at Rahra- Ramakrishna Mission College ’,established and administered by Ramkrishna Mission, it would be advantageous to refer to material facts relating to establishment and administration of that college and the controversies thereto which led to the filing of the writ petition, and ultimately the present appeals , for a proper apprisal and appreciation of the points arising for our consideration in deciding the present appeals.Such facts are briefly these:
By letter dated 19th july 1961, the secretary,Education department of Government of West Bengal informed Swami Punnyananda Maharaj of Ramakrishna Mission Boys’ Home of Ramakrishna Mission at Rahra of the willingness of Government of India for granting rupees two lakhs for construction of a college building on a suitable site at Rahra to be made available by Ramakrishna mission and of the willingness of the Chief Minister to meet the additional cost of construction of such college building from funds of State Government,requested him to communicate the acceptance by Ramakrishna Mission of the proposal and further prepare plans and estimated cost of college building early.On Ramakrishna Mission’s acceptance of the said proposal Government of West Bengal, issued Memo dated 27th October ,1961,intimating its Director of Public Instruction of Governor’s approval for setting up a three year degree college under the auspices of Ramakrishna Mission Boy’s Home at Rahra at its site at an estimated cost of Rs.7,25000/- to be borne by the State Government and Government of India. Thereafter,by a letter dated 25 th April,1962 the Deputy secretary to Government of West Bengal addressed to Registrar,Calcutta University intimated him of the three year degree college to be set up at Rahra under the auspices of Ramakrishna Mission and its readiness to manage the college through a Governing Body to be constituted by it. In turn by another letter dated 29th August,1962, the Director of public Instruction intimated to the Registrar, Calcutta University that the said college was being inaugurated under the auspices of Ramakrishna Mission Boy’s Home and will function as a sponsored college with financial assistance from the State Government and Union Government and requested for obtaining University’s affiliation of the college upto B.A/B.Sc. courses and approval of college Governing Body constituted by the Ramakrishna Mission. Calcutta University being of the view, that it was quite in fitness of things that the college was being ushered into existence in commemoration of the birth centenary of Vivekananda, who contributed so much to uplift the down-trodden and the building up of national character and education, not only granted affiliation to the proposed college, but also accorded approval to Governing Body of that College as constituted by Ramakrishna Mission.
Thereafter,Governing Body of the College as constituted by Ramakrishna Mission from time to time with special approval obtained from the state Government and the University, continued to administer the affairs of that College. Ramakrishna Mission College did not, therefore have a Governing Body which was modelled on the common pattern of governing bodies of sponsored colleges as becomes clear even from Government Memo dated 16th January,1971 conveying approval of Governor for common pattern of Governing bodies of sponsored colleges, for it said that the approval given by Governor regarding composition of the governing bodies of the sponsored colleges, did not include Governing Bodies of sponsored colleges run by Missionary Societies on the basis of agreement with respective Missions. Indeed, the letter of Deputy Secretary to Government refering to the said Memo had clarified that the Memo in its application to specially sponsored colleges such as Colleges managed by Ramakrishna Mission, Christian Order Missionary Society Brahma Samaj, Trust Deed etc.would be modified by Government according to exigencies by mutual agreement with Mission/Society/parties concerned. In his Memo dated 18th April, 1978, the Deputy Secretary to Government of West Bengal also clearly stated that the Government had been feeling the necessity of revising the existing pattern for composition of Governing Bodies of Government sponsored colleges on a “standard pattern” excepting where the college concerned had a special constitution on the basis of Trust Deed or where the college was run by the Missionary Societies on the basis of agreement with respective Missions.
When according to the said Memo dated 18th April, 1978, the existing Governing Body of the Ramakrishna Mission College was carrying on the governance of that college, that on 12.8.1980 by a letter of even date. Principal of that college Swami Jitatnanda resigned his post. This situation led to the appointment of Shivamoyananda who was till then head of Ramakrishna Mission Vidya Mandir, Bellurmath, as Principal of Ramakrishna Mission College.
Teachers Council of the Ramakrishna Mission College who were agitated by new Principal’s appointment, by resorting to strike, took over the management of the College and prevented the newly appointed Principal Shivamoyanda from functioning as Principal but also made Prof.A.R. Das Gupta to function as the in-charge Principal of the College. This untoward situation led Ramakrishna Mission and the Secretary of the Governing Body of the College Institute a civil suit -suit No.111 of 1980 in 10th Court of Sub-Judge, Alipore seeking a declaration that the functioning of A.R.Das Gupta as Principal and the functioning of 14 professors in the college was illegal.
When the affairs of the said Ramakrishna Mission College stood as above, that on 18.12.1980 the appellants in Civil Appeal No.4937 of 1985 by filing C.O.No.12837(w) of 1980 in the High Court sought for issue of (i) a writ in the nature of mandamus commanding the Government of West Bengal to reconstitute the Governing Body of the Ramakrishna Mission College according to standard pattern for Governing Bodies of sponsored college as per Government Memo No.752- Edn(cs)/c.s.30-3/77 dated 18th April,1978;(ii) a writ declaring that the Ramakrishna Mission college is governed by W.B. Act of 1975;and W.B. Act 1978;(iii) a writ in the nature of quo warranto restraining Swami Shivmoyananda as Pricipal of Ramakrishna Mission College, and other incidental writs.
The grant of prayers sought for in the said writ petition was resisted by Ramakrishna Mission, Secretary of the Ramakrishna Mission College and Shivamoyanada, who were respondents in that writ petition and are respondents in present Civil Appeal No.4937 of 1985 and other Civil appeals.
However,as three notices were sent by the Calcutta University to Ramakrishna Mission during the pendency of the writ petition for reconstituting the Governing Bodies of the Ramakrishna Mission Residential College, Narendrapur,Ramakrishna Mission Siksha Mandir, Howrah and Ramakrishna Mission Vidya Mandir, Howrah , the sustainability of those notices was questioned by Ramakrishna Mission, by filing an Interlocutory Application in the writ petition itself.
A learned single Judge of the High Court although dismissed the said writ Petition, quashed the said three notices issued by the Calcutta University to the Ramakrishna Mission for reconstituting the Governing Bodies of its three colleges, on his view that the Ramakrishna Mission College and other colleges of Ramakrishna Mission since estasblished and administered by Ramakrishna Mission, comprised of the followers of Ramakrishna religion , being protected under Article 30(1) of the Constitution, the provisions in W.B.Act of 1975 and the W.B. Act of 1978,did not apply . However, he did not accept the claim of the Ramkrishna Mission that Article 26(a) of the Constitution enabled the Ramakrishna Mission to establish educational institutions as a religious denomination.The writ petitioners as a religious denomination. The writ petitioners, who were aggrieved against the order of dismissal of their writ petition by the learned single judge and of quashing of the notices for reconstituting of Governing Bodies of Certain colleges of the Ramkrishna Mission preferred a writ appeal against that order. The State of West Bengal and Calcutta University who also felt aggrieved by the said order of learned single judge ,filed separate writ appeals questioning its correctness. A Division Bench of the High Court, Which clubbed those writ appeals and heard them together, dismissed all of them by a common judgnent having expressed its agreement with the learned single Judge that the Ramakrishna Mission comprised of followers of Ramakrishna, being a minority based on religion, was protected under Article 30(1) of the Constitution, and also its disagreement with the view that Article 26(a) of the Constitution did not protect the Ramakrishna Mission from establishing educational institutions as a religious denomination. Dismissal of the appeals was also based on the view of the Division Bench that both the W.B. Act of 1975 and the W.B. Act of 1978 since did not contain any express provision including their application to educational institutions established and maintained by the Ramakrishna Mission, those Acts would be inapplicable,to the Ramakrishna Mission College and other colleges of Ramakrishna Mission for to hold otherwise would amount to infringement of the rights enjoyed by the Ramakrishna Mission under Articles 26(a) and 26(b) of the Constitution. However, it left open the question of legality or otherwise of the direction contained in the notices issued by the Calcutta University to the Ramakrishna Mission for reconstitution of Governing Bodies of the Ramakrishna Mission Residential College, Narendrapur, Ramakrishna Mission Siksha mandir, Howrah and Ramkrishna Mission Vidya mandir, howrah. doctrines and teachings of Ramakrishna and have become his follwers, claim to belong to a minority based on Ramakrishna religion which was distinct and different from Hindu religion and as such entitled to the fundamental right under Article 30(1) of the Constitution of India , of establishing and administering educational institutions of their choice through Ramakrishna Mission or its branches in that State?
2. Do persons belonging to or owing allegiance to Ramkrishna Mission belong to a religious denomination or any section thereof as would entitle them to claim the fundamental rights conferred on either of them under Article 26 of the Constitution of India?
3. If persons belonging to or owing allegiance to Ramakrishna Mission is a religious denomination or a section there of , have they the fundamental right of estblishing and maintaing institutions for a charitable purpose under Article 26(a) of the Constitution of India.
4. If Ramakrishna Mission as a religious denomination or a section there of establishes and maintains educational institutions, can such institutions be regarded as instituions established and maintained for charitable purpose within the meaning of Article 26(a) of the Constitution of India?
5. Is Ramakrishna Mission College at Rahra established and maintained by Ramakrishna Mission and if so , will the constitution of its governing body by the government of west Bengal amounts to infringment of Ramkrishna Mission’s fundamental right to establish and maintain an educational institution under Article 26(a) of the Constitution of India?
6. Can the court direct the West Bengal Government because of W.B.Act 1975 and W.B.Act 1978, to constitute governing body on standard pattern of sponsored college envisaged under its Memo dated 18th April, 1978 in respect of Ramakrishna Mission College when that Memo itself says that colleges establised and maintained by Missions on the basis of agreements cannot be treated as sponsored colleges for the purpose of constituting governing bodies for them on a standard pattern.
Before taking up the above points for consideration, we may advert to the views of this Court expressed in some of its decisions on matters, such as Hindu religion , religious denomination, to our advantage:
A Constitution Bench of this Court in the commissioner, Hindu Religious Endowments, Madras & sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [(1954) SCR,1005] speaking through Mukherjee, j. (as he then was), who spoke for the Bench while holding that certain provisions of the Madras Hindu Religious and Charitable Endowments Act, 1951 imposing tax on religious trusts and institution were ultra vires Article 26 of the Constitution of India, adverted to the meaning of the word religion and the expression religious denomination found in the Constitution of India, thus: “… The word religion has not been define in the Constitution and it is a term which is hardly susceptible of any rigid definition. In an American case [Davis v. Benson,133 US at 342] it has been said that term religion to his Creator and to the obligations they impose of reverence for His Being and character and of obedience to His will. It is often confounded with cultus of form or worship of a particular ect , but is distinguishable from the latter,. We do not think that the above definition can be regrded as either precise or adequate.Articles 25 and 26 of our Constitution are based for the most part upon asticle 44(2) of the Constitution of Eire and we have great doubt whether a definition of religion as given above could have been in the minds of of faith with individuals or communities and it is not necessarily theis tic. There a are well known religions in India like Buddhism and jainism which do not believe in god or in any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spirtual well being but it would not be correct to say that religion is nothing else but a doctrine or belief.A religion may not only lay down a code of ethical rules for its followers to accepts , it might prescrive rituals and obsevances, cermoniwes and modes of worship which are regarded as integral observances might extend even to matters of food and dress.”

Then dealing with the meaning and connotation of the expression religious denomination and whether a Math could come within this expression , it has been ovserved thus : “….. The word denomination has been defined in the Oxford Dictionary to mean a collection of individuals classed together under the same name : a religious sect or body having a common faith and organisation and designted by a distinctive name it is well know that the practice of setting up Maths as centres of theological teaching was started by Shri Sankaracharya and was followed by various teachers since then. After Sankara, came a galaxy of religious teachers and philosophers who founded the different sects and sub- sects can certainly be called a religious denomination , as it is designated by adistinctive name,- in many cases it is the name of the founder , and has a common faith and common spiritual organisation. The followers of Ramanuja , who are known by the name of Shri Vaishnabas,undoubtedly constitute a religious denomination; and so do the followers of Madhwacharya and other religous teachers .It is a fact well established by tradition that the eight udipi Maths were founded bu Madhwacharya himself and the trustees and the beneficiaries of these Maths profess to be followers of that teaher , The HIgh Court has found thatthe Math in question is in charge of the Sivalli Brahmins who constitute a section the followers of Madhwacharya . As Article 26 contemplates not merely a religious denomination but also a section ther of , the Math or the spiritual fraternity represented by it can legitimately come within the purview of this article. “In Shastri Yagnapurushdasji and others & muldas Bhundardas vaishya and another [AIR 1966 SC 1119]a Constitution Bench of this Court was required to consider the question whether the Bombay High Court was right in holding that Swaminarayan Sampradaya sect to which the appellants before the court belonged is not a religion distinct and separate from the Hindu religion .In that context, Gajendragadkar,c.j who spoke for the Bench considered the questions elaborately as to who are Hindus and What are the broad features of HIndu religion, thus: “(27) Who are Hindus and what are the broad features of Hindu religion, that must be the first part of our enquiry in dealing with the present controversy between the parties. The historical and etymological genesis of the word ’Hindu has given rise to a controversy amongst indo-logists; but the view generally accepted by scholars appears to be that the word ’Hindu’is derived from the river Sindhu otherwise known as Indus which flows from the Punjab. That part of the great Aryan race, says Monier Williams , which immigrated from Central Asia, through the mountain passes into India, settled first in the districts near the river Sindhu (now called the Indus). The perisian pronounced this word Hindu and named their Aryan brethern Hindus. The Greeks, who probably gained their first ideas of india pesians , dropped the hard aspirate, and called the Hindu ’Indii’
(28). The Encyclopaedia of Religion and Ethics,Vol.VI, has described ’Hindusim’as the title applied to that form of religion which prevails among the vast majority of the present population of the Indian Empire (p.686). As Dr. Radhakrishnan has observed: ’The Hindu civilization is so called, since its original founders or earliest followers occupied the territory drained by the Sindhu (the Indus) river system corresponding to the North-West Frontier Provvince and the Punjab. This is recorded in the Rig Veda, the oldest of the Vedas, the Hindu scriputres which give their name to this period of Indian history. The people on the Indian side of the Sindhu were called Hindu by the Persian and the later western invaders [The Hindu view of life by Dr. Radhakrishnan, p.12]. That is the genesis of the word ’Hindu’.e>
(29). When we think of the Hindu religion, we find it difficult, if not impossible, to define Hindu religion or even adequately describe it. Unlike other religions in the world, the Hindu religion does not claim any one prophet; it does not worship any one God; it does not subscribe to any one dogma; it does not believe in any one philosophic concept; it does not follow any one set of religious rites or performances; in fact, it does not appear to satisfy the narrow traditional features of any religion or creed. It may broadly be described as a way of life and nothing more.
(30). Confronred by this difficulty, Dr. Radhakrishnan, realised that to many Hinduism seems to be a name without any content. Is it a museum of beliefs, a medley or rites; or a mere map, a geographical expression [The Hindu View of Life by Dr. Radhakrshnan, P.11]?. Having posed these questions which disturbed foreigners when think of Hinduism, Dr.Radhakrishnan has explained how Hinduism has steadily absorbed the customs and ideas of peoples with whom it has come into contact and has thus been adle to maintain its supremacy and its youth. The term Hindu, according to Dr. Radhakrishnan, had originally a territorial and not a credal significance. It implied residence in a well deficed geographical area. Aboriginal tribes, savage and half- civilized people, the cultured Dravidians and the Vedic Aryans were all Hindus as they were the sons of the same mother. The Hindu thinkers reckoned with the striking fact that the men and women dwellining in India belonged to different communities, worshipped different gods, and practised different rites [the Hindu View of life by Dr. Radhakrishan, p.12] (Kurma Purana). (31). Monier Williams has observed that it must be borne in mind that Hinduism is far more than a mere form of theism resting on Brahmanism. It presents for our investigation a complex congeries of creeds and doctrines which in its gradual accumulation may be compared to the gathering together of the mighty volume of the Gangas, swollen by a continual influx of tributary rivers and rivulets, spreading itself over an everincreasing area of country and finally resolving itself into an intricate Delta of tortuous streams and jungly marshes..The Hindu religion is a reflection of the Hindu religion is a reflection of the composite character of the Hindus, who are not one people but many. It is based on the idea of universal receptivity . It has ever aimed at accommodating itself to circumstances, and has carried on the process of adaptation through more than three thousand years. It has first borne with and then, so to speak, swallowed, digested, and assimilated simething from all creeds (Religious Thought & life in India by Monier Williams ,p.57].”.

Dealing with broad sweep of the Hindu philosophic concept, it has been stated thus: (33). The monistic idealism which can be said to be the general distinguishing feature of Hindu Philosophy has been expressed in four different forms: (1) Non-dualism or Advaitism; (2) pure monism, (3) Modified monism; and (4) Implicit monism. it is remarkable that these different forms of monistic idealism purport to derive support from the same Vedic and Upanishadic texts, Shankar, Ramanuje, Vallabha and Madhva all based their philosophic concepts on what they regarded to be the synthesis between the Upanishads, the Brahmasutras and the Bhagvad Gita. Though philosophic concepts and principles evolved by different Hindu thinkers and philosophers varied in many ways and even appeared to conflict with each other in some particulars, they all had reverence for the past and accepted the Vedas as sole foundation of the Hindu philosophy. Naturally enough, it was realised by Hindu religion from the very beginning of its career that truth was many sided and different views contained different aspeccts of truth which no one could fully express. This knowledge inevitable bred a spirit of tolerance and willingness to understand and appreciate the opponent’s point of view , That is how the several views set forth in India are considered to be the branches of the self-same tree. The short cuts and blind alleys are somehow reconciled with the main road of advance to the truth [ibid,p.48].’when we consider this broad sweep of the Hindu philosophic concepts, it would be realised that under Hindu philosophy, there is no scope for ex-communicaing any notion or principle as heretical and rejecting it as such.

Thereafter, the basic concepts of Hindu religion, are stated thus: (35)…The first amongst these basic concepts is the acceptance of the Veda as the highest authority in religious and philosphic matters, This concept necessary implies that all the systems claim to have drawn their principles from a common reservoir of thought enshrined in the Veda. The Hindu teachers were thus obliged to use the heritage they reeceived from the past in order to make their views readily understood. The other basic concept which is common to the six systems of Hindu philosophy is that all of them accept the view of the great world rhythm. Vast periods of creation, manitenance and dissolution follow each other in endless succession. This theory is not inconsistent with belief in progress: for it is not a question of the movement of the world reaching its goal times without number, and being again forced back to its starting- point…..It means that the race of man enters upon and retravels its ascending path of realization. This interminable succession of world ages has no beginning [Indian Philosophy by Dr. Radhakrishnan, Vol.II, p.26].”It may also be said that all the systems of Hindu philosophy belief in rebirth and pre-existence. Our life is a step on a road, the direction and goal of which are lost in the infinite. On this road, death is never an end or an obstacle but at most the beginning of new steps [Indian philosophy by Dr. Radhakrishnan, Vol.II, p.27]. Thus ,it is clear that unlike other religions and religions and religious creeds, Hindu religion is not tied to any definite set of philosophic concepts as such.”
Adverting to the question whether Hindus worship at their temples the same set or number of gods, it has been observed thus: (36)……. Indeed, there are certain sections of the Hindu community which do not believe in the worship of idols; and as regards those sections of the Hindu community which believe in the worship of idols, Their idols differ from community to commuunity and it cannot be said that one definite idol or a difinite number of idols are worshioped by all the Hindus in general. In the Hindu pantheon the first gods that wete worshipped in Vedic times were manily Indra, Varuna, Vayu and Agni. Later, Brahma, Vishnu and Mahesh came to be worshipped. In course of time, Rama and Krishna secured a place of pride in the Hindu pantheon, and gradually as different philosophic concepts held sway in different sects and in different sections of gods were added, with the result that today the Hindu pantheon presents the spectacle of a very large number of gods who are worshipped by different sections of the Hindus.”
However, dealing with the development of the Hindu religion and philosophy from time to time,it is ovserved thus: (37)….The development of Hindu religion and philosophy shows that from time to time saints and religious reformers attempted to remove from the Hindu thought and practices elements of corruption and superstition and that led to the formation of different sects. Buddha started Buddhism; Mahavir founded Jainism; Basava became the founder of Lingayat religion, Dhyaneshwar and Tukaram initiated the varakari cult; Guru Nanak inspired sikhism; Dayananda founded Arya Samaj, and Chaitanaya became Bhakti cult; and as result of the teachings of Remakrishna and vivekananda, Hindu religion flowered into its most attractive progressive and dynamic form. If we study the teachings of these saints and religious reformers, we would notice an amount of divergence in their respective views; but underneath that divergence, there is a kind of subtle indescribable unity which keeps them within the sweep of the broad and progressive Hindu religion.
“Ultimately, reference is made to the working formula evolved by Tilak and is found to be adequate and satisfactory formula. That working formula is quaoted thus:
“Acceptance of the Vedas with reverence; recognition of the fact that the means or ways to salvation are diverse; and realisation of the truth that the number of gods to be worshipped is large, that indeed is the distinguishing feature of Hindu religion. [B.G.Tilak’s Gitarahasaya].”
In Acharya Jagdishwaranand Avadhuta, etc. & Commissioner of police, Calcutta & Anr.[(1984) 1 scr 447], Ranganath Mishra , J. (as he then was speaking for a three-judge Bench of this Court has held that Anand Margis being a collection of individuals who have a system of beliefs with regard to their conducive spiritual well-being, a common organisation and a definitive name, would be a religious denomination within the Hindu religion, inasmuch that satisfy the tests laid down by the constitution Bench of this Court in that regard in Sri Shirur Mutt’s case (supra).
We could now refer to the points arising for our consideration in these appeals and consider them seriatim.
point-1 :
Point-1:

The learned single Judge of the High Court who decided the Writ Petition, took the view that the followers of Ramakrishna were entitled to protection of Article 30(1) of the constitution of India since the religion preahced and propagated by Thakur Sri Ramakrishna and his great chella Swami Vivekananda, is Ramakrishna religion – a universal religion, different from the Hindu religion. The factors which led the learned single Judge to take the above view in respect of the Ramakrishna religion are the following:
Fundamental tents of Ramakrishna religion set out in the statement of Swami Ramanand in his affidavit filed in opposition to the writ Petition, which according to him made it unique by comprehending all other religions without identifying itself with any of them :
“1. That Thakur Shri Ramakrishna paramhansa Deva practised various religions including Islam and realised the truth underying these religions.
2. That shri Ramkrishna’s spiritual practice culminated in experience that all beings are in essence divine and identical with Eternal Existence, Consciousness and Bliss, and that the ultimate aim of human life is to realise this Truth and attain eternal life.
3. Shri Ramkrishan discovered that the same Eternal Truth underlies all religious, whichis the essence of all scriptures. That all religions are true.
4.According to Shri Ramkrishnan, Religion is not an end in itself but is a means to achieve the said aim of human life.
5. He (Ramkrishan) proclaimed that all religions are only diferent paths leading to the same goal.
6. He (Ramkrishan) preached that sevice to man as the veriable manifestation of God, in a spirit of worship, is a sure way to realise the Truth.
7. Accepting all religion to be true he (Ramakrishna) prohibited condemnation of any of them.”
Most important features of Ramakrishan religion, set out by Swami Ramananda in his affidavit in opposition, which according to him distinguished Ramakrishan religion froma ll other cults or religions including traditional HInduism:
“(i). The religion of Shri Ramkrishna looks upon Sri Ramkrishna as an illustration and emobdiment of the Religion Eternal which constitutes the core of all religious ideals and permits his worship through his image (like portraits, photos, statues, etc.) relics or otherwise with or without any ritual or ceremony. (ii) It not only tolerates all religions, but also accepts them all to be true, and it considers all religions to be only different paths leading to the same goal. whereas other religions claim absolute authority in all maters to the exclusion of all others. (iii) It believes that the underlying truth in all religions is the same Eternal Truth which is the essence of the scriptures of all religions.”
Further statement made in the self-same affidavit by Swami Ramananda: “… that the followers of this religion or cult of Shri Ramkrishan believe in and practise the unversal resligion of all times, as practised and preached by him. They believe in the universal brotherhood of all irrespective of caste, colour, cread community, language or nationality, Amongst the followers of Shri Ramkrishna’s religion. there are persons coming from Hindu fold as well as from the followers of Islam, Christianity and other religions.”
Remark of notable historian Arnold Toyanbee: “Shri Ramkrishna’s message was unique in being expressed in action….Religion is not just a matter for study, it is something that has to be experineced and to be believed, and this is the field in which Shri Ramkrishna manifested his uniqueness…. His religious activity and experience, were, in fact, comprehensive to a degree that had perhaps never before been attained by any other religious genious in India or elseehere.
Statements of Swami Viekananda made at different times:
“What is wanted is power of organisation do you understand me?..We want some disciples fiery youngmen…do you see?.. intelligent and brave who dare to go to the jaws of death and are ready to swin the ocean across. Do you follow me? We want hundreds like that… both men and women. Try your utmost for that and alone.make convers right and left and put them into our purity drilling machine.”
“And together we conceived that this ideal had to spread and not only spread, but made practical. That is to say, we must show the spirituality of the Hindus, the mercifulness of the Buddhists, the activity of the Christians, the brotherhood of Mohammadans, by our practical lives, We shall start a universal religion now an here.”
“Each soul is potentially divine, the goal is to manfest this divinity within, by controlling nature external and internal. Do this either by work or by worship by one or more, or all of them and be free,”
“I have a message and I will give it after my own fashion, will neiter be HInduism, nor Christianism and that is all. Liberty, Mukti is all my religion.”
“I shall inspire men everywhere ,untill the world shall know that it is one with God.”
Swami Jyotishwarananda’s statement:
” The Ramkrishna Mission is preeminently a religious body in service forming a part of Sadhana or spiritual practice, It stands on the universal ideals of religion. Its numerous preaching centres in India and America are trying to spread through the life and thought of their members a true knowledge of religion in its all embracing aspects and also to promote fellowship amongst the followers of different religions of the world, which are in fact as Sri Ramkrishna realised, so many forms of the Eternal and Universal Religion.”

Objects of Ramkrishna Math:
1.The Ramakrishna Math, otherwise called the Belur Math, is an institution of Sannyasins, established to help individuals as to work out their own liveration and also to trai them to serve the world in every possible way along the lines laid down by factors on which the learned single Judge had based his views on the subject. However, the Division Bench has sought to point out how Swami Vivekananda in the latter days of his life changed his thoughts on religion influenced by Western thought and way of life and propounded a world religion, by refferring to what was said of him others:

“42. Unodoubtedly, thoughts of Sri Ramakrishna and Swami Vivekananda were based on Vedanta. But their philosophy and religion were not indetical with the Triditional Vedantabad. Dr, Satish Chandra Chatterjee, romerly Head of the Department of Philosophy, Calcutta University, in his work, ’Classical Indian Philosophers : their Syntheses in the the University of Calcutta, 1963, has Samanvaya Vedanta in the sense of being a synthesis of all the schools of Hindus Law Dr. Chatterjee in Chapter-x of the said book has discussed in detail the said philosophy of Sri Ramakrishna. He has, inter alia, observed that Sri Ramakrishna’s experiences go beyond the Veda and Vedanta. According to him, the impersonal absolute and the personal god are not two different realities unrelated to each other, nor are the different realities insparably related to each other as substance and quality. They are same realities in diffreent states. According to the learned authour,Bramhana is not different from Sakti or Kali in point of Reality. Shri Ramakrishna held that Bramhana is present in every though and being the Universe. Sri Ramakrishna held that Bramahana is present in every thoutht and being the Universe. Sri Ramakrishna’s teachings lay down a rational basis for reconciliation of different and conflicating systams of philosophy and religion. Dr. Chatterjee in his said book observes that religion, according to Sri Ramakrishna,is neither religious knowledge about God, nor philosphical speculation on God; it is the direct experience or realisation of God. Sri Ramkrishna’s conception that the end of man’s life is realization of the divine in him, was not indentical with the tradtitional Hindu view of life. One of the most remarkable traits of Sri Ramakrishna’s religion was his doctrine of harmony of religions. He not only taught University Harmony but he himself demonstrated it.

43. Thus although thoughts of Sri Ramakrishna and Swami Vivekananda were based on Vedanta, thier thought and action did not remian strictly within the limits of ancient Vedantic thought. The writings and speeches of Swami Vivekananda also clearly indicate his gradual transition from a preacher of Hindu thought into a world missionary. Swami Vivekananda’s views on religion did not remain static and unchanged. Therefore. stray quotations given from his various writings and speeches may not depict his true views on religion. With his greater and grater acquantance with the western thought and ways of life, Swami Vivekananda’s own ideas about religion and its significances underwent change. He had began to lay grater and greater stress on the unity of religions. He came gradually to believe in and propunded world religion. Swamiji persistently sought to formulate on the basis of Sri Ramakrishna’s teachings of One Principle behind all religious phenomenon. Miss Marie Louse Burke in her book ’Swami Vevekananda in the West’ Vol. II, had observed that from the summer of 1894 anoward simultaneous development keeping pace with one another were taking place in Swamiji’s thought along three lines. There was an evolution in his message, the change in his plan and work and the increasing degree in which he identified his own message with Vedanta. According to the learned author, all three were aspects of a single event – the emergence of his world mission, According to Miss Burke, Swamiji did not teach the orthodox Vedanta in every respect. He mixed with it, for instance, a great deal of Sankha in order to answar some of the questions posed by modern knowledge. The learned author his answered the question why Swamiji gave the name Vedanta to his Principles pf Religion. She thinks that, on the face of it, it was not necessary,. for as Swami Vovekananda himself often observed, these principle have always existed in greater or lesser degree in every religion. He wrote the real thing is the religion taught by Sri Ramakrishna; let the Hindus call it Hinduism and the other call it in their own way” According to Miss Burke, one obvious andimportant reason of calling his religion by specific name was that the name Vadanta already existed. One religion in all its aspects had been alreaduy formulated for thousands of years and called Vadanta. Miss Burke has given two other reasons, first Swami Vivekananda attempted throughtout to define harmony of religion in the truest sense and had concluded that it consisted in the recongnition of the unity of religions or rather in the recognition of religion. Another reason why Swamiji wanted to give a name to one religion was that he was not only ensuring purity of his principles but to make it possible for any one to follow these principles without first attaching himself to specific creed and burdening himself with some forms and ceremonies not neceassary to him One would become a Vadantic and go straight to the heart of the religion.

Can the aforesaid view of the learned single Judge of Calcutta High Court that there came into existence Ramakrishna religion, distinct and aprt from Hindu religion, as upheld by learned Judges of the Division Bench of the same High Court by its Judgment impugned in the present appeals, be sustained for the reasons stated by them including the special reson put forward by learned Judges of the Division Bench that thoughts of Ramakrishna and Swami Vivgekananda although were based on Vendanta, writings and speeches of Swami Vovekananda show that even thought he had grown as a praccher of Hindus thought (Hindus religion), he converted himself into a preacher of world religion different from Hindu religion, in latter years of this life being influenced by his greater acquaintance with western thought and way of life. In shch view of the learned single Judge, as upheld by the learned Judges of the Division Bench of the High Court came in direct conflict with the view of Hindu religion enunciated by the Constitution Bench of this Court in its Judgment in the case of Shastri Yagnapurushadasji (supra) by according its approval to what is stated in that regard by great philosophers and historians or of broad features of Hindu religion laid down by this Court in that Judgment or with the views hedl by Ramakrishna himself, on Hindu religion and the Hindu way of life led by him or of what was spoken of Ramakrishna as the great saviour, reviver and rejuvenator of Hindu religion by world thinkers, philosophers, historians and his disciples, or the utterances of Sri Ramakrishna and Swami Vivekananda, which show that they alwayds continued as Hindus professing Hindus religion and never discowned or discardefd their Hindu status or Hindu religion.

The Constitution Bench of this Court in Shashtri Yaganapurushadasji (supre) when had occasion to deal with the question what Hindu religion has been, on consideration of diverse aspects of the questions before it, not merely expressed its clear views thereon, viz., (i) that unlike other religouns in the world Hindu religion does not claim any one prophet; it does not worship any one God; it does not follow any one set of religious rites or performances; and thus when it does not appear to satisfy any of the narrow traditional features of any religion or creed, it may broadly be described as a way of life and nothing more; (ii) that unlike other religions Hindu religion is not tied to any definite set of philosophic concepts as such; and (iii) that thought philosophic concepts and principles evolved by diffenrent Hindu thinkers and philosophbers varied in may way and even appeared to conflict with each other in some particulars, they all had reverence for the past and accepted the Vedas as the sole foundation of Hindu philosophy; but also clearly accorded its approval to the views of Hindu religion expressed by Monier Willams to the effect that the Hindu religion is a reflection of the composite character of the Hindus, who are not one people but may based on the idea of universal receptivity ever aimed at accommodating itself to circumstances, having swallowed, digested and assimilated something from all creeds, and to the view of Hindi religion expressed by Dr. S. Radhakrishna ’that Hindu religion because of the teachings of Ramakrishna and Vivekanda has flowered into its mosts attractive, progressive and dynamic form.’

Since the afore-mentioned views that there came into existence Ramakrishna religion, as such , distinct and apart from Hindu Court deciding the writ petition and the learned Judges of the Division Bench of the High Court deciding the appeals are quite contrary to and directly conflict weith afore-referred views of the Constitution Bench of Hindu religion enunciated in the case of shastri Yaganapurushdasji (supra), the views of the learned Judges of the High Court that there came into existence a Ramakrishna religion which was different and distinct from Hindu religio9n cannot, in our view, stand and become unsustainable.

Features of Hindu religion recognised by this Court in shastri Yaganapurashdasji (supra) as coming within its broad sweep are these ;
(i) Acceptance of the Vedas with reverence as the highest authority in religious and philosophic matter and acceptance with reverence of vedas by Hindu thinkers and philosophers as the sole foundation of Hindu philosophy .
(ii) Spirit of tolerance and willingness to understand and appreciate the opponent’s point of view based on the realisation that truth was many-sided.
(iii) Acceptance of great world rhythm, vast period of creation, maintenance and dissolution follow each other in endless succession, by all six systems of Hindu philosophy .
(iv) Acceptance by all systems of Hindu philosophy the belief in rebirth and pre-existence .
(v) Recognition of the fact that the means or ways to salvation are many .
(vi) Realisation of the truth that Gods to be worshipped may be large, yet there being Hindus who do not believe in the worshipping of idols .
(vii) Unlike other religions or religious creeds Hindu religion not being tied-down to any definite set of philosophic concepts, as such .
Ramakrishna – according to Aurobindo : “…. in him the spiritual experiences of the millions of saints who had gone before were renaewed and united . Sri Ramakrishna gave to Inmdia the final message of Hinduism to the world. A new era dates from his birth… Hinduism as summed up in the life of Sri Ramakrishna has to attempt for all….”[World Thinker on Ramakrishna , Vivekananda, p.36 ] Ramakrishna – according to Anold toynbee : ” Sri Ramakrishna’s message was unique in being expressed in action , the message itself was the perennial message of Hinduism.” [Ramakrishna AndHis Unique Message – by Swami Ghananda, p.10 ] Ramakrishna – according to Prof. s. Radhakrishnan : “He has helped to raise from the dust the fallen standard of Hinduism, not in words merly, but in works too.”
[Ramakrishna Ane His Unique Message, p.29]
Ramakrishna’s view of Hindu religion :
“Hindu religion alone is the Sanatan Dharma. Various creeds you hear now a days have come into existence through the will of God and will disappear again through his will. They will not last for ever. Therefore, I bow down at the feet of even the modern Devotees. The Hindu religion has always exixted and will always exist.”
[The Gospel of Sri Ramakrishan, Vol. II, p.642 ]
Swami vevekananda’s view about his Master’s (Ramakrishna’s ) relogion :
” Then it was that Sri Ramakrishna incarnated himself in India to demonstrate what the true religion of the Aryan race is, to whow where amidst all its many divisions and off-shoots, scattered over the land in the course of its immemorial history, lies the true unity of the Hindu relilgion …… ”
” All that I am , all that the world itself will some day be ,is owing to my Master, Sri Ramakrishna, who incarnated and experienced and taught this wonderful unity which under lines everything, having discovered it alike in Hindusim, in Islam and in christianity.”
[Ramakrishna And His Message , p.57] Address given by Swami Vivekananda at the World’s parliament of Religion at chicago on 11th September, 1893 Since assumes great significance, the same being accepted as the thoughts of Ramakrishna expressed on religion, through his principal disciple Swami Vivekananda, the importantpassages therein which bear on reliogion of Ramakrishna and his disciple Swami Vivekananda, are excerpted :
” It fils my heart with hoy unspeakablt to rise in response to the warm and cordial welcome which you have given us. I thank you in the name of the mostancient order of monks in the world; I thank you in the name of the mother of religions ; and I thank you in the name of the millions and millions of Hindu people of all cclsses and sects……… I am proud to belong to a religion which has taught the world both tolerance and universal acceptance. We believe not only in universal toleration, but we accept all religions as true . I am proud to belong to a nation which has sheltered thew persecuted anbd the refugees of all religions and all nations of the earth…….. I am a Hindu. I am sitting in my own little well and thinking that the whole world is my; little well. The Christian sists in his little well thinks the whole world is his well. The Mohammedan sits in his little well and thinks that is the whole world. I have to thank you of America for the great attempt you are making to break down the barrier of this little world of ours. and hope that, in the future, the Lord will help you to accomplish your purpose ……. ”
From the high spilritual flights of the Vedanta philosophy, of which the latest discoveries of science seem like eachoes, to the low ideas of idolatry with its multiflavour, mythology, the agnosticism of the Buddists and the atheism of the Jains, each and all have a place in the Hindu’s religion….. Here it may be said that these laws as laws may be without end, byt they; must have had a beginning. The Vedas teach us that creation is without beginning or end, Science is said to have proved thatr the sukm total of cosmis energy is always the same. Then , if there was a time when nothing exixted where was all these manifested energy.”Coming to the paper on Hinduism read by Swami Vivekananda on Idolatry at the said parliament of Religion on 19th September, 1893 :
” One thing I must tell you. Idolatry in India does nbot mean any thing forrible. It is not the mother of harlots. On the other hand , it is the atempt of undeveloped minds to grasp high spiritual truths . The Hindus have their faults, they sometimes have their exception; ;by;t; mark this, they are always for punishing their own bodies, and never for cutting the throats of their neighnbours.”
” The Lord has dedclared to the Hindu in His incarnation as Krishna; ’ I AM IN EVERY RELIGION AS THE THREAD THROUGH A STRING OF PEARLS. WHEREVER THOU SEEST EXTRAORDINARY POWER PAISIING AND PURIFYING HIMANITY, KNOW THOUGH THAT I AM THERE.’”Again speaking at the World’s Parliament of Religions on 20th September, 1893: “In India , during the terrible famines, thouosands died from hinger, yet you christins did noting . You erect churches all through India, but the crying evil in the East in not religion – they have religion enough – but it is bread that the sufferoing millions of burning India cry out for with parched throats, They ask us for bread, but we give them stones. It is an insult to a starving people to affer them religion ; it is an ilnsult to a straving man to teach him metaphysics. “” The religion of the Hindus is divided into two parts, the ceremonial and the sdpiritual ; the spiritual portion is specially studied by the monks. ”
” In that there is no cast. A man from the highest cast and a manb from the lowest may becomes a monk in India and the two castes become equal. In religion there is no caste is simply a sicial Instituion.”
Other exortations of Swami Vivekananda on Hindu religion (Hinduism) :
Three religions now stand in the sorld which have come down to us from time prehistoric – Hinduism, Zoroastrianism and Hudaism. They have all received tremendous shocks and all of them prove, by their survival, their internal strength . But while Judaism failed to aborb christinaity and was driven out of its place of birth by its allconquering daughter, and a hanful of Parsees is all that remains to tell the tale of their grand religion, sect after sect arose in India and seemed to shake the tale of their grand religion, sect after sect arose in India and seeded to snake the religion of the Vedas it its foundations, but like the waters of the seashore in a tremendous earthquake, it receded only for a while only to return in an all – absorbing flood, a thousand times more vigorous, and when the tumult of the rush was over , these sects were all sucked in , absorbed and assimilated into the immense body of the mother faith. (1.6) From the high spiritual flights of the Vedanta philosophy, of which the latest discoveries of science seem like echose, to the low ideas oif idolatry with its multifarious mythology, the agnosticism of the Budhists, and the atheism of the Jains,m each and all have a place in the Hindu’s religion.(1.6) The Hindu religion does not consist in struggles and attmpts to believe a certaimn doctrinme or dogma, but in realising -not in bel;ieving, but in being and becoming, Thus the whole object of their system is by constant struggle to become [erfect, to become divine, to reach God and see God, and and this reaching God, becoming perfect, even as the Father in Heaven is perfect, constitutes the religious of the Hindus.(1.13) We not only toleratate, but we Hindus accept every religion, praying in the mosque of the Mohammadans, worshipping before the fire of the Zorestrians, and kneeling before the cross of the Christians, knowing that all the religions, from the lowest fetishism, mean so many attempts oif the human soul to grasp and realise the infiniate, each determined by thencxonditions of its birth and association, and each of them makeing a stage of progfress, We gather all these flowers and bind them with the twine of love, making a wonderful bouquet of worship. (1.331-32) The religion of the Vedanta can satisfy the demands of the scientific world, by referring it to the highest generalisation and to the law of evolution. Vedanta lays down that each man shopuld be treated not as what he manifests, but as for the divine, and therefore, every teacher should be helpful, not by condemning man, but by helping him to call forth the divinity that is within him. (1.388) In India there never was any religious persecusion by the Hindus, but only that wonderful reverence, which they have for all the religions of the world. (1.391) If your mind says something and the Vedas say something else, stop your mind and believe in the Vedas. (1.452) Not only is Vedanta the highest philosophy in the world, but it is the greatest poem. (1.499) In one word, the ideal of Vedanta is to know man as he really is, and this is its message, that if you cannot worship your brother man, the manifested God, how can you worship a god who is unmanifested ? (11.325-26) Taking country with country, there is not one race on this earth to which the world owes so much as to the patient Hindu, the mild Hindu. The mild Hindu’ sometimes is used as an expression of reproach; but if ever a reproach concealed a wonderful truth, it ismin the term the mild Hindu’ who has always been the blessed child of god. (11.105). One thing we may not that wereas you will find that good and great men of other countries take pride in tracing back their descent to some robber-baron who lived in a mountain fortress and emerged from time to time to plunder passing wayfares, we Hindus, on the other hand, take pride in being the descendants of Rishis and sages who lived on roots and fruits in Mountain and caves, meditating on the Supreme. (111.139) We must remember that for all periods the Vedas are the final goal and authority, and if the Puranas differ in any respect from the Vedas, that part of the Puranas is to be rejected without mercy. (111.173) Here we are, the Hindu race, whose vitality, whose life-principle, whose very soul, as it were, is in religion. (111.177) ….I think that it is Vedanta, and Vedanta alone that caan become the universal religion of man, and no other is fitted for the role. Excepting our own, almost all the other great religions in the world are inevitable connected with the life or lives of one or more of their founders. All their theories, their teachings, their doctrines adn theior ethics are build round the life of a personal founder from whom founder from whom they get their sanction, their authority and their power; and, strangelky enough, upon the historicity of the founder’s life is build, as it were, all the fabric of such religions. If there is opne blow dealt to the historicity of that life, …..if that rock of hostoricity….is shaken and shattered, the whole building tumbles down, broken absolutely, never to regain oits lost status. Every one of the great religions in the world, excepting our own, is build upon such historical charactorers; but ours rests upon principles. Their is no man or woman who can claim to have created the Vedas. They are the embodiment of enternal principles; sages discovered them…..(111.182-83) India alone was to be, of all lands, the land of toleration and of spirituality;… For one of the greates t sages that was ever born found out here in India even at theat deistant time, whichj history cannot reach, and intom whose gloom even tradition itself dares not peep- in that distent time the sage arose and declared Ekkam Sad Vipra bahuda Vadanti – ’he whop exists is one; of the most memorable sentences’. This is opne of the most memorable sences that was evcer uttered, one of the grandest truths that was ever discovered. And for us Hindus the truth has been the very backbone of our nations existence. For throughout the vistas of the centuries of our national life this one idea- Ekkam Sad Vipra bahuda Vadanti – comes down gaining in volume and in fullness till it has permeated the whole of our national existence, till it has mingled in our blood, and has become one with us. We live that grand truth in every vein, and our countryu has become the glorious land of religious tolerance. It is here and here alone that they build temples and churches for the religious which have come with the object of condemning our own religion. (111.186-87) ….our religion is not based upon persons but on principles. That yopu obey ypur religion is not becaous it came through the authoprity of a sage, no, not even of an Incarnation, Krishna is not the authority of the Vedas, but the Vedas are the authority of Krishna himself. His glory is that he is the greatest preacher of the Vedas that ever existed. (111. 249) The Hindu can worship any sage and any saint from any country whatsoever, and as a fact we know that we go and worship many times in the churches of the Christians, and many, many times inm the Mohammadan mosques and that is good. why not? Ours. as I have said, is the Universal religion. It is inclusive enough, it is broad enough to include all the ideals. All the ideals of religion that already exist in the world can be immediately included., and we can patiently wait for all the ideals that are to come in the future to be taken in the same fashiom, embraced in the infinite arms of the religion of the Vedanta. (111.251-52) Ours is the religion of which Budhism, with all its greateness, is a rebel child , and of which Christianity is a very patchy imitation. (111.275) Ours is the only religion that does not depend on a person or persons; it is based upon principles. (111.280) …this religion of ours admits of a marvellous variation, an infinite amount of liberty to think and live our own lives…(111.286087). If there is any sect here which believes that OM ought not to be the symbol of Hinduism, it has no right to call itself Hind. (111.302) Whether we are conscious of it or not, we think the Vedanta, we live in the Vedanta, we breathe the VEdanta, and we die in the VEdanta, and every Hindu does that. To preach VEdanta in the land of India, and before an Indian audience, seems therefore, to be amn anomaly. But it is the one thing that has to be preached and it is the necessity of the age that it must be preached. (111.323) It at present the word Hindu means anything bad, never mind; by our action let us be ready to show that this is the highest word and any language can invent. It has been one of the principles of my life not to be ashamed of my opwn ancestors……(111.368-69) Any, when a man has begun to hate himself, then last blow has come. When a man has begun to be ashamed of his ancestors, the end has copme. Here an I, oine of the least of the Hindu race, yet proud of my race, proud of my ancestors. Iam proud to call myseld a Hindu, I am proud that I am one of your unworthy servants. I am proud that I an a countryman of yopurs; – you, the descenmdants of the sages, you the descendants of the most glorieous Rishis the world ever saw. Therefore, have faith in yourselves, be proud opf your ancestors, instead opf being ashamed of them. (111.381) I found Hinduism to be the most perfectly satisfying religion in the word. (111.449) The principles of the vedanta not only should be preached everywhere in India, but also outside, Our thought must enter into the mane-up of the minds of every nation, not through writings, but through persons. (IV.311) No religion onm earth preaches the dignity of humanity in such a lofty strain as Hinduism, and no religion on earth treads upon the necks of the poor and the low in such a fashion as Hinduism. (V.15) The Hindu must not give up his religion, but must keep religion within its proper limits and give freedonm to society to grow, All the reformers in India made the serious mistake of holding religion accountable for all the horrors of priestcraft and degreratiuon and went forthwith to pull down the indestructible structure and what was the result? Failure (V.22) I want to see you, Swami’, asked the correswpondent of Prabhudha Bharata, ‘on this matter of receiving back into Hinduism those who ahve been perverted from it. Is it your opinion that they should be received?’ Certainly’, said the Swami, ‘they can and ought to be taken’. (V.233-34) Most of the Upanishads were written by kshtriyas, while the ritualistic portions of the Vedas came from the brahmins (V309) One peculiarity of the Vedas is that they are the only scriptures that again and again declare that uyou mist gfo beyond them. The Vedas say that they were written just for the child mind; and when you have grown, you must go beyond them. (V.311) The Vedas, i.e. only those portuions of them which agree with reason are to be accepted as authority. Other Shastras, such as Purana, etc. are only to be accepted so far as theyu dol bnoit go against the Vedas. All the religious thoughts that have come subsequuent to the Vedas, in the world, in whatever part of it, have been derived from the Vedas. (V.315) In Vedantamthe chief advantagem is that it was not the work of one single man: and, therefore, naturall;y, unlike Budhism of Christianity or Mohammedanism, the prophet opr teacher did not entire,ly swallow up or overshadow the principles. (VI.7) The religion of the Vedas is the religion of the Hindus, and the foundation of all Oriental religions: that is, all other Oriental religions are offshoots of the Vedas; all Eastern systems of religion have the VEdas as authority. (VI.48) Hinduism is the very genious of absorption. We have never cared for fighting. of course, we could strilke a blow now and then , in defence of our homes. That was right. But we never cared for fighting for its own sake. Every one had to learn that. So let these reces of new comers whirl on . Theyu will all be taken into Hinduism in the end. (VIII.266) [Hinduism by Swami Vivekananda, published by Shri G.M. Jagtiani] This is the gist of all worship- to be pure and to do good to others. He who sees Sivas in the poor, in the weak, and in the diseased, reallyt worship[s Siva; and if he sees Siva only in the image, his worship is but preliminary. (111.141-42) The only way of getting our divine nature manifested is by helping others to do the same. If there is inequality in nature, still ther must be equal chance for all- or if greater for some and for some lkess- the weakere should be given more chance than the strong. In other words, aBrahmana is not so much in need of education as a Candala. If the son of the Brahmana needs one teacher, that of a Candala needs ten. For greater help must be given to him whom nature has not endowed with an acute intellect from birth. It is a m,adaman who carries coals to newcastle. The poor, the downtrodden, the ignorant – let these be your god. (VI.319) There are many things to be done, but means are wanting in this country. We have brains, but no hands. We have the doctrine Vedanta, but we have not the power to reduce it into practice. In our books, there is the codtrine of universal equality, but in work we make great distinctions. It was in India that unselfish and disinterested work of the most exalted type waspreached, but in practice we are awfully cruel, awfdulklky heartless – unable to think of anything bedises our own mass-of- flesh bodies…. I too believe thjat India will awake again, if anyone could love with all his heart the people of the country- bereft of the grace of affluence, of blasted fortune, their discretion totally lost, down-trodden, ever-starved, quarrelsome, and envious. Then only will India awake, when hundreds of large-hearted men and women, giving up all desires of enjoying the luxuries of life, will long and exert themselves to their utmost for the well- being of the millions of their countrymen who are gradually sinking lower and lkower in the vorted of destitution and ignorance. (V.125-26) Carry the light and the life of the VEdanta to evry door, and rouse up the divinity that is hidden within every soul. (111.199)
[Vivekananda – His call to the n\Nation, pp.64, 86-87 and 89]
Shri C. Rajagopalacharia, the great scholar speaks of the greatness of Swami Vivekananda thus: “Swami Vivekananda saved Hinduism and saved India. But for jim we would have lost our religion and would not gain our freedom.” [World Thinkers on Ramakrishna, Vivekananda, p.54].

Thus, from what is said of Ramakrishna and Swami Vivekananda and of their religion by great worls thinkers and philosophers, the glory of Ramakrishna is that he preached and made his principal disciple Swami Vivekananda to preach the religion of Vedanta which is the religion of Hinduis, as the message of Hinduism or Hindu religion to the people of the entire world for their future survival, good and prosperity, that is, the worship of brother m,an, the manifested God, the living God, the human soul in the body.

When Shri Ramakrishna was approached by Narendra (Swami Vivekananda) to bless him with ‘Nirvikalpa Samadi’ the highest spiritual experience, the admonitionm he got from his master Ramakrishna, being shame on you, I thought you would grow, like a banayan tree, shetlering thousands from scorching of the world. But now, you seek your own liberation. The same, demostrates that Ramakrishna wanted his principal disciple to bring home to the world the religion of Vedanta which is the religion of Hindus, that is ‘worship of man is worship of god’.

Again from what could bne seen from the aforesaid features adverted to be this Court as falling under the broad sweeep of Hinduism, and as the thoughjts of Ramakrishna of hinduism, and as the thoughts of Ramakrishna on Hinduism and as to what great thinkers, philosophers of the world have said of the highest contribution made by the great saint Ramakrishna to Hinduism and as to what Ramakrishna has himself said of Hinduism and again as to what Ramakrinshan’s disciple Swami Vivekananda has said of the Hinduism of his master Ramakrishan, a Hindu of Hindu religion, we find it difficult to accept, with great respect, the view of the learned single Judge of Calcutta High Court, who decided the writ petition and the view of the learned Judges of the Division Bench of the Calcutta High Court, who decided the writ appeals, taken for upholding the claim put forward on behald of the Ramakrishna Mission and the Ramakrishna Mission College, that Ramakrishna religion was distinct and separate from the Hindu religion and it was a minority religion in the State of West Bengal. The peculiar circumstances which led Ramakrishna Mission to make a claim that Ramakrishna religion was a distinct and separate religion from Hindu religion and, therefore, a minority religion having the protection of Article 30(1) of the Constitution, to save the Ramakrishna Mission College for Ramakrishna Mission and all other educational institutions established and administered by Ramakrishna mIssion or its branches from being taken away under opne pretext or the other by the State Government, should not have been found favour by the learned Judges of the High Court for declaration that Ramakrishna religion as a minority religion entitled to protection under Article 30(1) of the Constitution of India, when such claim made on behalf of Ramakrishna Mission was based not on the sayings, teachings, preachings or practices of Ramakrishna and Swami Vivekananda pertaining to Hinduism not tied-down to any definite philosophic concepts, to which we have adverted to, but on supposed statements made by Swami Vivekananda without indicating context or place and time in which they were made. Even otherwise those statements, as they stand, do not indicate that Ramakrishna brought into existence his own religion and called it Ramakrishna religion. Such declaration ignores the reality that Ramkrishna, the great saint had been born in Dakshineswar as an Avatar of both Rama-the embodiment of truth and Krishna – the embodiment of love, the epic Heroes of Hindus to save Hinduism from extinction and rejuvenate it to serve the whole humanity by expounding great principles of Vedanta, the religion of Hindus. In the words of Swami Vivekananda himself, Hinduism being the religion of Vedanta can satisfy the human needs of the scientific world by referring to it as the highest generalisation and the law of evolution, and further referring to it, as the only religion that does not depend on a person or persons and taking pride of calling himself a Hindu, which were:

“Ay, when a man has begun to hate himself, then the last blow has come. When a man has begun to be ashamed of his ancestors, the end has come. Here am I, one of the least of the Hindu race, yet proud of my race, proud of my ancestors. I am proud to call myself a Hindu.”

The views expressed by the learned single Judge of the Hindu Court deciding the writ petition and the learned Judges of the Division Bench deciding the writ appeals that Sri Ramakrsihna brought into existence, during hs life time, by his practices and teachings a religion distinct and different from Hindu religion and it was Ramakrishna universal religion, indeed, goes against the philosophy of Hindu religion as expounded, practiced and preached by Shir Ramakrishna himself and latter propagated to the whole world by his principal disciple Swami Vivekananda and other disciples. In this context, a passage from the Gospel of Sri Ramakrsihna’ which contains the view of Ramakrishna on Hindu religion is worth reiteration:

“Hindu religion alone is the Sanatan Dharma. Various creeds you hear nowadays have come into existence through the will of God and will disappear again through his will. They will not last for ever. Therefore, I bow down at the feet of even the modern Devotees. The Hindu religion has always existed and will always exist.”
Speaking of greatness of Ramakrishna, Swami Vivekananda, the already adverted to by us, said thus :
“….Sri Ramakrishna incarnated himself in India to demostrate what the true religion of the Aryan race is, to show where amidst all its many divisions and off-shoots, scattered over the land in the course of its immemorial history, lies and true unity of the Hindu religion….”
In the World’s Parliament of Religions at Chicago, Swami Vivekananda, who claimed himself to be a Hindu, spoke of his Hindu religion which require reiteration :
“I am proud to belong to a religion which has taught the world both tolerance and universal acceptance….”
Again speaking of Hindu religion, whathe stated requires reiteration:
“……all have a place in the Hindu’s religion……”
Speaking of the ideal of Vedanta and its message, to which we have adverted to, Swami Vivekananda has said thus :
“In one word, the ideal of Vedanta is to know man as he really is, and this is its message, that if you cannot worship your brother man, the manifested God, how can you worship a God who is unmnifested?”
Again what according to Swami Vivekananda Vedanta says requries reiteration :
“The Vedanta says, there is nothing that is not God…. The living God is within you and yet you are building chruches and temples and believing all sorts of imaginary nonsense. The only God to worship is the human soul in the human body.”
Then speaking of Upnisads, Swami Vivekananda at one stage administered a w arning to Europe thus:
“Europe, the centre of the manifestation of material energy, will crumble into dust within fifty years, if she is not mindful to change her position, to shift her ground and make spirituality the basis of her life. And what will save Europe is the religion of the Upanisads”
Warning given not to give up Hindu religion, but to keep religion within proper limits and give freedom to society to grow the Swami Vivekananda requires reiteration :
“No religion on earth preaches the dignity of humanity in such a lofty strain as Hinduism, and no religion on earth treads upon the necks of the poor and the low in such a fashion as Hinduism.”

“The Hindu must not give up his religion, but must keep religion within its proper limits and give freedom to society to grow. All the reformers in India made the seriours mistake of holding religion accountable for all the horrows of priestcraft and degeneration and went forthwith to pull down the indestructible structure and what was the result? Failure.”

What is referred to above by us, as to what is said by Ramakrishna of Hindu religion and what is said by Swami Vivekananda of Vedanta, the very sould of Hindu religion and its message that service to man is service to God’ makes it abundantly clear that Ramakrishna brought into existence no religion of his own which was called as universal religon, but gave the message of Vedanta of service to man is service to God’ as the universal principle basic to all religions and it being the message which was preached by Swami Vivekananda as the message given by hsi master based on Vedanta philosophy of Hindu religion, it would be a travesty of truth to say that Ramakrishna created a religion independent, distinct and apart from Hindu religion and called it a universal religion. Indeed, Hindu philosophy by Ramakrishna could be regarded as that expounded by him to serve humanity of the changing world. Shri Ramakrsihna is, therefore, rightly regarded by Hindus, great philosophers and thinkers of the world, who have studies the lives and works of Shri Ramakrishna and his disciples and others as the incarnation of Rama- the truth and Krishna – the love, born in Dakshineswar as great saint, not only to save Hindu religion from its extinction, but to rejuvenate it with the message of Vedanta that service to man is service to God’, calls for our acceptance without any hesitation and the views of the learned single Judge and the views of the learned Judges of the Division Bench of the High Court in the order and judgement under the present appeals that Ramakrishna religion exists apart and distinct from the Hindu religion and it is a minority religion which has the protection of Article 30(1) of the Constitution of India, becomes unsustainable.

We may state, at this stage itself, that Swami Vivekananda changed his views on religion in his latter years, having been influenced by the West, as held by the Division Bench of the High Court, even if true, it is inconceivable that the same can have the effect of Shri Ramakrishna himself bringing up a religion of his own according to the subsequent thinking of Swami Vivekananda. Therefore, the basis of the subsequent thinking of Swami Vivekananda on which the Division Bench of the the High Court held that there came into existence a universal religion of Ramakrishna, cannot be sustained. On the contrary, what becomes obvious and evident from the exortations of Swami Vivekanada himself, to which we have already referred to, what he proclaimed to the world was that it is Vedanta and Vendata alone that can becoem the universal religion of man and it is Hindu religion alon that is fitted t that role, in that, Hindu religion being inclusive and braod enough to include all the ideals of all religions in the world was indeed, the universal religion. Hence, to say or to hold that there came into existence Ramakrishna religion-a universal religion, apart and distinct from Hindu religion would, again be travesty of truth and reality.

For the foregoing reasons, we hold tha the citizens of India residing in the State of West Bengal, who are professing, practising or propagating the religious doctrines and teachings of Ramakrishna and have become his followes, cannot claim to belong to a minority based on Ramakrishna religion which was distinct and different from Hindu religion and as such are not entitled to the fundamental right under Article 30(1) of the Constitution of India, of establishing and administering educational institutions of their choice through Ramakrishna Mission or its branches in that State and answer Point-1 accordingly, in the negative.
Point-2:

It is held by a Constitution Bench of this Court in Sri Shirur Math’s case (supra) tha religious denomination is a collection of individuals classed together under the same religious sect or body having a common faith and organisation and disignated by distinctive name, based on the meaning of that phrase found in Oxford Dictionayr. It is alos held therein that such a religlious denomination falls under Article 26 of the Constitution of India. It is further held therein that the followers of Ramanuja, who are known by the name of Shrivaishnavas while consitute a religious denomination of their own, the followers of Madhavacharya and other religious teachers could be regarded as those belonging to their respective religious denominatiosn.

Following the view taken as above as regards ’religious denominations’, by the Constitution Bench of this Court in Sri Shirur Math’s case (supra), a three-Judge Bench of this Court in Acharya Jagadishwaranand Avaduta’s case (supra) speaking through Ranganath Misra, J. (as he then was) has held that ’Ananda Margis’, who are a collection of individuals, who have a system of beliefs with regard to their conducive spiritual well being, a common organisation, a definite name, could be regarded as a religious denomination within the Hindu religion, stating that the tests laid down by the Constitution Bench for regarding a denomination as a religious denomination were satisfied.

In view of the said pronouncements of this Court, persons who claim to belong to religious denomination envisaged under Article 26 of the Constitution can succeed in such claim only when they fulfil or satisfy the tests laid down therein, to wit :

(i) a collection of individuals who have a system of beliefs with regard to their conducive spiritual well-being;
(ii) a common organisation; and
(iii) a definite name.
A Division Bench of the High Court of Calcutta in its Judgment under appeal has held that Ramakrishna Mission is a religious denomination by stating thus :
“The followers of Shri Ramakrishna have a common faith. They have common organisation and tehy are designated by a distinct name.”

No good reason is shown to us for not accepting the view of the Division Bench on the point that Ramakrishna Mission or Ramakrishna Math is a religious denomination’. It is not is dispute and cannot be disputed that Sri Ramakrishna could be regarded as eligious teacher who expounded, practised and reached the principles of Vendanta on which Hindu religion is founded, to meet the challenges posed to humanity in the changing world and made his disciples to spread the principles so expounded by him not only in India but all over the world as the basic principles of Hinduism. It cannot also be disputed that the disciples of Ramakrishna formed Ramakrishna Math and Ramakrishna Mission for propagation and promotion of the principles, so expounded, practised and preached by Ramakrishna Parmahansa, by way of publications and building of temples, prayer halls and building of educational, cultural and charitable institutions as performance of sevas resulting in the coming up of organisations as Ramakrishna Maths and Ramakrishna Missions, all over the world. These Maths and Missions of Ramakrishna composed of the followers of principles of Hinduism as expounded, preached or practised by Ramakrishna as hs disciples or otherwise form a cult or sect of Hindu religion. They believe in the birth of sage Ramakrishna in Dakshineswar as an Avatar of Rama and Krishna and follow the principles of Hinduism discovered, expounded, preached and practised by him as those conducive to thier spiritual wellbeing as the principles of highest Vendana which surpassed the principles of Vedanta conceived and propagated by Sankaracharya, Madhavacharya and Ramanumjacharya, who were earlier exponents of Hinduism. Hence, as rightly held by the Division Bench of the High Court, followers of Ramakrishna, who are a collection of indivuduals, who adhere to a system of beliefs as conducive to their sprtitual well-being, who have organised themselves collectively and who have an organisation of definite name as Ramakrishna Math or Ramakrishna Mission could, in our view, be regarded as a religious denomination within Hindu religion, inasmuch as they satisfy the tests laid down by this Court in Sri Shirur Math’s case (supra) for regarding a denomination as a ’religious denomination’.

For the said reasons, we hold that persons belonging to or owing their allegiance to Ramakrishna Mission or Ramakrishna Math belong to a religious denomination within Hindu religion or a section thereof as would entitle them to claim the fundamental rights conferred on either of them under Article 26 of the Constitution of India and anser Point-2, accordingly, in the affirmative. Article 26(a) of the Constitution of India, is an important point that arises for our consideration here.

No doubt a six-Judge Bench of this Court in the case of Siddarajbhai v. State of Gujarat [AIR 1963 SC 540] while considering the question whether the serious inroads made by the Rules and Order issued by the State Government in respect of an educational institution established and administered by a minority entitled to, protection under Article 30(1) of the Constitution of India, speaking through Shah, J.(as he then was) has observed thus:
“Article 26 occurs in a group dealing with freedom of religion and is intended to protect the right to manage religious affairs. By clause (a) of Article 26, every religious denomination or any section thereof, hs, subject to public order, morality and health, the right to establish and maintain insitutions for religious or charitable purposes and in a larger sense an educational institution may be regarded as charitable.”

But, it was thought not necessary to express any opinion on the plea that the right of petitioners under Article 26(a) was infringed, in that petitioners were entitled to protection of Article 30(1) of the Constitution.

While the learned single Judge of the High Court who decided the Writ Petition took the view that Article 26(a) is confined to institutions imparting religious instructions and not to insitutions imparting general education, the learned Judges of the Division Bench of the High Court deciding the appeal have taken the view that Article 26(a) extends to establsihment and maintenance of religious and charitable institutions including institutions for imparting education and that the essential part of the cult of Shri Ramakrishna being spreading of education of Ramakrishna Mission have the protection of Article 26(a) of the Constitution making it, however, clear that they do not mean to lay down that establishment of educational institutions would be essential matter of their religion.

We think that the learned Judges of the High Court should not have decided on the general question whether educational institutions established and maintained by religious denomination including those established and maintained by Ramakrishna Mission for general education get the protection of Article 26(a) of the Constitution when that question in a general form, was not really at issue before them. Therefore, the views expressed on the question shall, according tous, ought to be treated as nonest and the quesion is left open to be decided in proper case, where such question really arises and all the parties who might be concerned with it are afforded adequate opportunity to have their say in the matter.

As we have pointed out while narrating the facts, which gave rise to the filing of Writ Petition before the High Court earlier and now to the filing of present appeals, Ramakrishna Mission College was established by Ramakrishna Mission at the istance of the Central Government and the West Bengal Government and was allowed to be administered by it through a Governing Body constituted by it (Ramakrishna Mission). The State Government did not envisage the constitution of a Governing Body of its own for the Ramakrishna Mission College on the standard pattern of governing bodies requred to be constituted for sponsored colleges, as such, either before the coming into force of the W.B. Act of 1975 or the W.B. Act of 1978 as was done in respect of other sponsored colleges or subsequent to the coming into force of those Acts, being of the view that a college like Ramakrishna Mission College of Ramakrishna Mission at Rahra, which was a specially sponsored college having a specially constituted Governing Body of its own should be excepted for purposes of constitution of Governing Body on standar pattern. This fact becomes clear from the State Government’s letters and clarification to which we have already referred to. However, this fact also becomes clear from the Memo dated 18th April, 1978 issued by the

Deputy Secretary to Government, which reads :
“GOVERNMENT OF WEST BENGAL EDUCATION DEPARTMENT College (Sponsored) Branch From: Shri D.L.Guha, M.A. Deputy Secretary to the Govt. of West Bengal. To : The Director of Public Instruction, West Bengal. No. 752-Edn (CS) ———— C.S.30-3/77 Dated, Calcutta, the 18th April, ’78. Subject : Composition of the Governing Body of Sponsored colleges. The undersigned is directing to say that for some tome past Government have been feeling the necessity of revising the exisiting pattern for the composition of the Governing bodies of the Government sponsored colelgels excepting in cases where the collellge has a special constitution on the basis of Trust Deeds or where the colleges are run by Missionary Societies on the basis of agreement with the respective Missions. After careful consideration of the different aspects of the matter and keeping in view of the necessity of ensuring the academic interest and efficient administration of these institutions of which Government has undertaken full financial responsibility the Governor has been pleased to order that in supersession of all previous orders relating to the consitution of Governing Body of sponsored College, the new standard pattern for the composition of the Governing Bodies of sponsored colleges will be as follows:-
A. 1. President – To be nominated by Government
2. Secretary – Principal of the College – Ex-officio.
3-5. The representative of the whole- time permanent teachers of the college to be elected from among themselves.
6. One representative of the whole-time permanent non-teaching employees of the college to be elected from among themselves.
7-8. Tow persons to be nominated by the Government.
9. One Educationist to be nominated by the Director.
10. One Educationist to be nominated by the University to which the college is affiliatied.
11. One representative of the regular students of the College. He should be the duly elected General Secretary of the Student’s Union.
B. The terms of the Governing Body of the College should be for a period of three years. The representatives of the whole-time permanent teachers and the representatives of the whole-time permanent non-teaching staff should hold office for a period of three years. C. Where the college is a women’s college or a co-eduational one at least one of the two Government nominees should be a woman.
2. This order comes into force with imemdiate effect.
3. In order that there is no dislocation in administration of the sponsored colleges, the Governor has also been pleased to order that until now Governing Bodies of the sponsored colleges are constituted in accordance with the pattern prescribed above the existing arrangement will continue.
4. The Governor is also pleased to order that there should be Finance Committee in every sponsored college consisting of give members, three of whom should be representatives of the whole-time permanent teachers of the College, one should be representative of the whole- time permanent non-teaching staff of the college and the Principal of the college (Ex-officio). The representative staff shall be elected int eh manner as laid down in para 1(a) above. The duteis and functions of the Finance Committee shall be such as may be prescribed by the Government. Sd/- D.L. Guha 18.4.78 Deputy Secretary.”(underlining by us)

As stated above, the State Government has excepted the Ramakrishna Mission College at Rahra in the matter of constituting of a Governing Body on standard pattern for the obvious reason that constituting such a governing body for a college like Ramakrishna Mission College which was all through allowed to have a governing body consituted by Ramakrishna Mission, which had built the College on its land conceding to the request made in that behalf by the State Government itself on the initiation of Central Government, may not be just. Thus when Ramakrishna Mission Collegle had come to be built, established and managed by the Ramakrishna Mission, it is difficult for us to think that the learned Judges of the Division Bench of the High Court were not right in holding that the Government should not be directed by issue of a mandamus, to consitute a governing body for the Ramakrishna Mission College on standard pattern taking recourse to the W.B. Act of 1975 and the W.B. Act of 1978, althoug for its own reasons. Therefore, in the peculiar facts and circumstances in which Ramakrishna Mission College at Rahra was established on Ramakrishna Mission’s land and allowed to be administered by the Ramakrishna Mission through its own Governing Body, we feel that interests of justice may suffer by directing the State Governmdent to constitute its own governing body on standar pattern of the usual sponsored colleges, as prayed ror the by the writ petitioners. Howevr, the view we have expressed int eh matter shall not come in the way of the State Government to change their earlier arrangement with the Ramakrishna Mission in the matter of governance of the Ramakrishna Mission Collegle, if on objective considerations such change becomes necessary in the larger interests of students, teachers and other employees of that College and is so permitted by law.

In the said view we have taken in the matter of consituting a Governing Body by the Government of West Bengal in respect of the Ramakrishna Mission College at Rahra, there is no need to go into the question that there has been infringement by the Government of Ramakrishna Mission’s fundamental rights to establish and mmainrain educational institutions under Article 26 (a)of the Constitution of India inasmuch as such a question does not arise, in view of the answer already given by us on Point-3 above. So also, question of directing the West Bengal Government decause of the W.B. Act of 1975 and the W.B.Act Of 1978 , to constitute govetning body on standard pattern ’ of sponsored college envisaged under its Memo dared 18 th April, 1978 in respect of Ramakrishna Mission College cannot arise.

Points 4 to 6 are accordingly answered .

In the risult we dismiss these appeals, however by setting aside the holding of the liatned single Judge in the Writ Petition that Ramakrishna religion being areligion distinct and siparate from Hindu relinion was a minoritu in West Bingal based on religion,entitoed to protection under Article 30 (1) of the Constitution of India as upheld by the Division Bench Of the High court in its jubgment deciding the appeals before it and also by setting aside the holding of the Division Bench of the High Court that Ramakrishna Mission as a religious denomination was entitlid to establish and maintain institutions of general education under Article 26 (a) of the Cohstitution of India as those established and maintained for a charitable purpose.

Having regard to the mature of controversies decided in these appeals , we direct all parties to bear their own costs .

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SUPREME COURT OF INDIA

PETITIONER:SUSHILA SAW MILL
Vs.
RESPONDENT:STATE OPF ORISSA & ORS.

DATE OF JUDGMENT31/07/1995
BENCH: RAMASWAMY, K.
BENCH: RAMASWAMY, K. PARIPOORNAN, K.S.(J)

CITATION: 1995 AIR 2484 1995 SCC (5) 615 1995 SCALE (4)776

O R D E R

This specila leave petition arise from the order of the Division Bench of Orissa High Court dated march 16, 1995 in civil Writ Petition No. 1545 of 1995. The petitioner has established a Saw Mill in the year 1980 in Keonjhas District of Orissa State. The notice under s.4(1) of Orissa Saw Mills & Saw Pits (Control) Act 1991 (for short ‘the Act’) was issued to the petitioner to close down its operations with immediate effect. Challenging the validity of s.4(1) of the Act and the notice, he filed the writ petition contending that it violates hbis fundamental right to carry on trade and business and also created invidious discrimination to the Saw Mills/Saw Pits situated in that district vis-a-vis other districts. It was also contended that the Act did not create any total ban but gave discretion to the licensing authority to grant or refuse the renewal of licence. Without considering their application for renewal, direction to close down the mill is arbitrary. the Division Bench negatived both the copntentions relying upon its Full Bench judgment in Lakshmi Narayan Saew Mills & Ors. v. State of Orissa and Ors. (1995(1) OLR 1 FB). The petitioner placed reliance on a Division bench judgment of that Court in in M/s. Saraswati Saw Mills etc. etc. v. State of Orissa and Ors (1995 (79) C.R.T. p.61). It is contended for the petitioner that the views of the full Bench and the Division bench judgment in question are not correct. A reading of the ACt does not indicate that the statute imposed total prohibition on the right to carry on the Saw Mill business. Even optherwise, mills situated within the district have been discriminated as its geographical contiguity of District is such that no Saw Mill can be established or exist within 10 k.m. as envisaged under proviso to s.4(1) of the Act. Therefore, it violates their fundamental rights under Arts. 14, 19(1)(g) and 301 of the Constitution.

The Act came into force on november 20, 1991. The Rules made in exercise of the power under s.213 have come into force on novemnber 18, 1993. The Act was enacted to regulate establishment and operation ofd Saw Mills and Saw Pits and trade of sawing to protect and conserve foprest and environment and for matters incidental thereto of connected therewith. The “forest area” is defined to mean all noptified lands as forest under any law and administered as forest whether State-owned oir private and whether wooded or maintained as a potential forest land. Section 5 empowers the Government to declare for a specified period reserved forest etc. Section 4 of the Act provides establishment and operation of Saw Mills and Saw Pits. The said section provides as under:

“4. Establishment and operation of Saw mill and Saw Pit. 1) On and after the appointed day, no person shall establish or operate a saw mill or saw pit except under the authority and subject to the conditions of a licence granted under this Act: Provided that no person shall establish or operate any saw mill or saw pit within a reserved forest, protected forest or any forest area within ten kilometers from the boundary of any such forest or forest area. 2) Notwithstanding anything contained in sub-s.(10 (i) a saw mill or saw Pit, established by the Orissa Forest DEvelopment Corporation Limited or by any other agency of the Government prior to the appointed day, may continue to be operated by such Corporation or agency, as the case may be, and in such a case, the Corporation or agency, as the case may be, shall be deemed to be licensee for the purposes of the Act;] (ii) a Saw mill or saw pit other than one referred to in clause (i) and establishment prior to the appointed day may continue to be operated and shall be deemed to be a saw mill or saw pit, as the case may be, licensed under this Act:- a) for a period of three months from the appointed day; or b) if an application made in accordaqnce with section 6 for a licence is pending on the expiry of the period specified in clause (a0, till the disposal of such application under sub-s.(2) of s.7”

The petitioner-saw Mill is admittedly situated within the reserved forest or protected forest or forest area within 10 K.m. from the boundary of such forest area. thus, the petitioner’s Saw Mill is situated within the prohibited area. The question, therefore, is whether the prohibition contained in statute is valid in law? Section 4 regulates establishm,ent and operation of Saw Mills and Saw Pits under the Act enjoining that on and after the appointed day no person shall establish or operate a Saw Mill or Saw Pit or sawing operations except under the authority and subject to the conditions of licences granted under the Act. The proviso which was assailed in this petition puts further embargo that no person shall establish or operate any SAw Mill or Saw Pit which is situated in a reserved forest, protected forest or any foprest area or within 10 k.m. from the boundary of such forest or forest area. by applying nonobstante clause, sub-s.(2) of s.4 relieves from the operation of proviso to sub-s.(1) of s.4, only a Saw Mill or a Saw Pit established by Orissa Forest DEvelopment Corporation Ltd. or any other agency of the Government prior to the appointed day. Their continuance and operationm are only saved and they are deemed to be the licensee for the purpose of regulation of the Act. Clause (ii) thereof madates that the Saw mill or Saw Pit other then covered by Clause (i) of S.4(2) established prior to the appointed day may continue to be operated and shall be deemed to be sae mill or Saw Pit and deemed to have been licensed under the Act but it is only a transitory provision as indicated in sub-clauses (a) & (b) thereof. In other words, the Saw Mill established prior to the Act coming into force, i.e., the appointed day and continuing to operate after the Act has came into force, shall be entitled to carry on its operations for a period of three months from the appointed day or till the application for licence or renewal made under s.6 is pending consideration adn is disposed of under sub-s.(2) of s.7. Section 5 gives, power to the State to declare prohibited area and ss. [2] envisages that during the substisting period of the prohibited area the consequences have been enumerated under sub-s.(2) of s.4 and proviso to s.4[1], namely, prohibition to grant a licence for establishment of a Saw Mill or a Saw Pit, or operatuion of the existing saw mill or saw pit was restricted to the period specificied in clauses[a] and [b] of s.4 [2] (ii); and prohibition to mrenew the licences to a Saw Mill situated within or a Saw pit “shall cease to operate and keep oits saw operation closed”. The only enablisng power given to the licensing authority was to see that existing stock may be disposed of any no claim for damages was permitted. For their contravention s.13 gives power to confiscate the property. Sections 6 and 7 operates to grant licences in areas other than the prohibited area. Rule 3 of the rules gives effect to th3e provision of the Act and the grant of the licence will be subject to the conditions enumerated in clauses (i) to (v) of Rule 6. Section 7 enjoins the licensing Officer to grant of refuse to grant licence in accordance with the provision of the ACt and the Rules and for the reasons enumerated thereunder.

It would thus be seen that the Act intended to regulate the operatiuons of the Saw Mill and saw pit or sawing. The right to carry on trade of business envisaged under Art. 19(1) (g) and Art. 301 is subject to the statutory regulation. When the stature prescribs total prohibition to continue to operate even tye existing Saw Mills situated within the prohibited area, the right to carry on trade or business is subject to the provisions of the ACt. proviso to Section 4(1) puts a total embargo on the right to carry on trade or business in Saw Milling operation or Sawing operation within the prohibited area. It is settled law that in the public interest restriction under Art. 19 [1] (g) may in certain rare cases include total prohibition. This Court in Narendra kumar & Ors. v. Union of India & ors. (AIR 1960 SC 430) held the it is reasonable to think that makers of the constitution considered the word‘restriction’ to be sufficiently wide to save laws inconsistent with Art.19 (1). or taking away the rights conferred by the Article, provided this inconsistency or taking away was reasonable in the interest of the differenmt matters mentioned in the clause. There can be no doubt, therefore, that they intended the word ‘restriction’ to include cases of prohibition also in certain rare cases. The contention that a law prohibiting the exercise of a fundamental right is in no case saved cannot, therefore, be accepted. It is seen that the reserved forest is being denuded or depleted by illicit felling. Thereby denudation of the reserved forest was noticed by the legislture. The preservation of the forest is a matter of great public interest and one of the rare cases that demanded the total ban by the leguslature. the Act came to be enacted to impose a total ban in prohibited area for the period during which the ban is in operation, to carry on Saw mills business or Sawing operation within the prohibited area. It is, therefore, clear that the statute intends to impose a total ban which is found to be in “public interest”. The individual interest, therefore, must yield place to the public interest. Accordingly, it is neither arbitrary not unreasonable. The Full Bench of the High Court upheld the provision as valid and in this case it has rightly declared the law. It is true that by geographical contiguity, Keonjhar District appears to have been situated within the prohibited area but that is the legislative mandate that the entire area covered within the prohibited zone is treated as a class as against the other area. Therefore, when the limits of that district are within prohibited zone of the reserved or protected or forest area etc. or within 10 k.m., it is a legislative scheme to give effect to the legislative object in the public interest to preserve forest wealth and environment and to put end to illicit felling of forest growth. Therefore, it is a class legislation; it is not discriminatory and does not offend Art. 14 or Article 301 of the Constitution. it is a valid law. The Special leave petition is accordingly dismissed.

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DATE: 06-January-1995

BENCH: SINGH N.P. (J) AHMADI A.M. (CJ)

CITATION: 1995 AIR 755 1995 SCC (1) 551, JT 1995 (1) 304 1995 SCALE (1)79

JUDGMENT:

The Judgment of the Court was delivered by N.P SINGH, J.- The appellant met with an accident while travelling in an Ambassador car (Registration No. MEQ 4583) on 20-5-1980 at about 8.30 a.m. near Village Sirur on Karwar-Mangalore Road (National Highway No. 17) within the State of Karnataka. There was a head-on collision between the car in which the appellant was travelling and the motor lorry (Registration No. MYS 7218). Because of the said collision, the driver of the car in which the appellant was travelling was thrown out and died on the spot, whereas the appellant was trapped between the dashboard and the seat. Mr Nagarkatti who was also travelling with the appellant in the car was thrown on the road. The impact was so severe that the front left side of the door of the car was jammed and could not be opened. Seeing the accident, the villagers gathered and broke open the left side of the car with the help of crowbar and the appellant was taken out. The appellant was removed to the Kasturba Hospital where he was treated as indoor patient from 20-5-1980 to 27-5-1980. When the relations of the appellant reached the hospital, a decision was taken to remove the appellant to Bombay and accordingly on 27-5-1980 he was brought to Bombay and was admitted in the Sion Hospital. The appellant remained in the said hospital as indoor patient from 27-5-1980 to 2-8- 1980. Because of the accident, the appellant suffered serious injuries resulting into 100% disability and a paraplegia below the waist.

2. The car was owned by M/s Pest Control (India) Pvt. Ltd., Respondent 1 and was insured with New India Assurance Company Limited, Respondent 2. The motor lorry was owned by one Madhav Bolar – Respondent 3 and was insured by Oriental Fire and General Insurance Company Limited, Respondent 4. According to the appellant, the driver of the car in which the appellant was sitting as well as the driver of the lorry which was coming from the opposite side, both were driving in a rash and negligent manner which resulted in a head-on collision. On 11-10-1980 the appellant gave notice to the Insurance Company and other parties who were liable to pay compensation and called upon them to pay compensation of Rs4,00,000. Since there was no response, on 13-11-1980 the appellant filed the claim petition under Section 110 -A of the Motor Vehicles Act, 1939 (hereinafter referred to as the ’Act’). Initially, the appellant made a claim for compensation amounting to Rs4,00,000 but on 16-4-1984 he claimed Rs 35,00,000 as the compensation from the respondents and claim petition was amended. The age of the appellant at the time of accident was 52 years.

3.The appellant was a practising advocate before the accident. He was also a Judge of the City Civil Court for sometime until he resigned in the year 1964. The appellant used to appear in the various courts including the High Court and the Supreme Court of India. Because of tile accident, the appellant became disabled and he was unable to resume his practice.

4.The claim made on behalf of the appellant was resisted by the respondents to the said petition on different grounds. The owner of the lorry resisted his liability to pay any amount of compensation on the ground that although he was the owner of the said lorry but since it was insured with Respondent 4, the insurance company was liable to pay compensation, if any, to the appellant. M/s Pest Control (India) Pvt. Ltd. who were the owners of the car resisted the claim made on behalf of the appellant asserting that the driver of the said car was driving the car very cautiously and carefully and the accident took place entirely due to the negligence on the part of the driver of the motor lorry. In any case, according to the said respondent, the compensation claimed on behalf of the appellant was excessive, imaginary and speculative in nature, which according to the said respondent was an attempt to make “a fortune out of misfortune”. Respondent 2, New India Assurance Co. Ltd,, with whom the car in question was insured took a plea that their liability was limited to the requirements as per law and terms and conditions of the insurance policy issued by them in favour of Respondent 1. The Oriental Fire and General Insurance Co. Ltd., who had insured the motor lorry of Respondent 3, their stand was also the same that they were bound by the terms and conditions of the insurance policy.

5.The Accidents Claim Tribunal on consideration of the materials on record and the evidence adduced on behalf of the parties passed on Award directing Respondents 1 and 2 to pay jointly and severally to the appellant compensation of Rs 26,25,992 to-ether with interest at the rate of 12% per annum from the rate of the application i.e. 13-11-1980 till payment and costs of the said application within three months. The Tribunal was also of the view that Respondent 4 the insurer of the motor lorry belonging to Respondent 3 was liable to pay the compensation to the extent of Rs 50,000 and interest there on and proportionate costs. In the award a direction was given to Respondent 2, the insurer of the car to pay all the compensation along with interest and costs on behalf of Respondent 1.

6.Against the Award aforesaid, two appeals were filed before the High Court, one on behalf of the appellant for enhancement of the compensation awarded by the Tribunal and the other on behalf of M/s Pest Control (India) Pvt. Ltd., Respondent 1 and New India Assurance Co. Ltd., Respondent 2 questioning the validity and correctness of the award in question. The High Court by the impugned judgment modified the award of the Tribunal and reduced the compensation from Rs 26,25,992 to Rs 8,57,352. The High Court has also reduced the rate of interest from 12% per annum to the rate of 6% per annum. The award against the insurer of the lorry Respondent 4 was affirmed and direction was given to make payment with interest at the rate of 6% and the proportionate costs. It was further directed that if the respondents failed and neglected to pay the amount in full or part, such defaulted amount shall carry 12% interest per annum from the date of default till its realisation. On the aforesaid finding the appeal filed on behalf of the appellant was dismissed, whereas the appeal filed on behalf of Respondents 1 and 2 was allowed by the High Court in part.

7.During the last few decades question of payment of compensation for accidents has assumed great importance, which is correlated with the accidents which have touched a new height not only in India but in different parts of the world. Initially, the theory of payment of compensation was primarily linked with tort compensation- only if the injury or damage was caused by someone’s fault. Of late the injury or damage being caused by someone’s fault is being read as because of someone’s negligence or carelessness. That is why any damage caused by negligent conduct is generally actionable irrespective of the kind of activity out of which the damage arose. Even in an action based on the tort, the applicant has to show that the defendant was negligent i.e. there was a failure on his part to take that degree of care which was reasonable in the circumstances of the case. There has never been any doubt that those using the highways are under a duty to be careful and the legal position today is quite plain that any person using the road as a motorist will be liable, if by his action he negligently causes physical injuries to anybody else.

8.The Tribunal as well as the High Court has examined the evidence adduced on behalf of the parties and have recorded clear findings that at the relevant time the car and the lorry were being driven in a rash and negligent manner. Reference has been made to the evidence adduced on that question. The fact that the front left side of the car was entangled with the front middle of the lorry speaks about the rashness on the part of the drivers of the two vehicles. The Tribunal has also pointed out from the materials on record that the motor car had gone to the wrong side of the road at the time of the accident. The High Court after referring to the order of the Tribunal said that after going through the evidence of the witnesses and the circumstances placed, it was of the opinion that the Tribunal was right in holding that there was composite negligence on the part of the drivers of both the vehicles and because of such negligence the appellant had sustained such serious injuries. The High Court also said that in view of composite negligence, the appellant was entitled for damages from the owners of both the vehicles and consequently the insurers of the two vehicles shall also be liable subject to the terms and conditions of the insurance policies. The Tribunal as well as the High Court were satisfied that because of the accident aforesaid, the appellant had become paraplegic and it was not easy to assess the exact compensation which is payable to him.

9.Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant:
(i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far nonpecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.

10.It cannot be disputed that because of the accident the appellant who was an active practising lawyer has become paraplegic on account of the injuries sustained by him. It is really difficult in this background to assess the exact amount of compensation for the pain and agony suffered by the appellant and for having become a lifelong handicapped. No amount of compensation can restore the physical frame of the appellant. That is why it has been said by courts that whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury “so far as money can compensate” because it is impossible to equate the money with the human sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame.

11. In the case Ward v. James1 it was said “Although you cannot give a man so gravely injured much for his ’lost years’, you can, however, compensate him for his loss during his shortened span, that is, during his expected ’years of survival’. You can compensate him for his loss of earnings during that time, and for the cost of treatment, nursing and attendance. But how can you compensate him for being rendered a helpless invalid? He may, owing to brain injury, be rendered unconscious for the rest of his days, or, owing to a back injury, be unable to rise from his bed. He has lost everything that makes life worthwhile. Money is no good to him. Yet judges and juries have to do 1 (1965) 1 All ER 563 the best they can and give him what they think is fair. No wonder they find it well nigh insoluble. They are being asked to calculate the incalculable. The figure is bound to be for the most part a conventional sum. The judges have worked out a pattern, and they keep it in line with the changes in the value of money.”

12. In its very nature whenever a tribunal or a court is required to fix the amount of compensation in cases of accident, it involves some guesswork, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standards.

13.This Court in the case of C.K. Subramonia Iyer v. T Kunhikuttan Nair2 inconnection with the Fatal Accidents Act has observed: “In assessing damages, the Court must exclude all considerations of matter which rest in speculation or fancy though conjecture to some extent is inevitable.”

14. In Halsbury’s Laws of England, 4th Edn., Vol. 12 regarding nonpecuniary loss at page 446 it has been said:

“Non-pecuniary loss: the pattern.- Damages awarded for pain and suffering and loss of amenity constitute a conventional sum which is taken to be the sum which society deems fair, fairness being interpreted by the courts in the light of previous decisions. Thus there has been evolved a set of conventional principles providing a provisional guide to the comparative severity of different injuries, and indicating a bracket of damages into which a particular injury will currently fall. The particular circumstances of the plaintiff, including his age and any unusual deprivation he may suffer, is reflected in the actual amount of the award. The fall in the value of money leads to a continuing reassessment of these awards and to periodic reassessments of damages at certain key points in the pattern where the disability is readily identifiable and not subject to large variations in individual cases.”

15. We are informed that during the pendency of the appeal before the High Court on basis of interim directions- Rs 3 lakhs and Rs 9 lakhs, in total Rs 12 lakhs have been directed to be deposited. However, in the final decision, the High Court was of the opinion that the appellant was entitled to Rs 8,57,352 only as the compensation. 16.During the hearing of the appeal a chart was circulated showing the amountsclaimed on behalf of the appellant under different heads and the amountsallowed or rejected by the High Court under those heads. So far, the amount mentioned against SI. No. 1 is concerned, the High Court has allowed the whole claim of Rs 47,652 and there is no dispute on that account. Against SI. Nos. 2 to 6 the appellant had claimed Rs 37,688 for Ayurvedic treatment against which an amount of Rs 4000 has been allowed by the High Court. According to us, this part of the judgment of the High Court does not require any interference. Against SI. No. 7 the appellant has 2 AIR 1970 SC 376: (1970) 2 SCR 688 claimed for Fowler’s Bed, Rs 21,000 for the present and Rs 21,000 for the future which has not been allowed. Same is the position in respect of electric wheelchair against SI. No. 8 which has been claimed at the rate of Rs 50,000 for the present and Rs 50,000 for the future which has been rejected by the High Court. According to us, when admittedly because of the injuries suffered during the accident, the appellant has become paraplegic, the aforesaid amounts should have been allowed by the High Court. Accordingly, we allow the said claim for Rs 1,42,000 under SI. Nos. 7 and 8. So far claim for Air-Inflated Bed at SI. No. 9 is concerned, the appellant has claimed Rs 5000 for the present and Rs 5000 for the future. The High Court has allowed only Rs 5000 for the present. According to us, the remaining amount of Rs 5000 also should have been allowed by the High Court. Coming to the claim for home attendants against SI. No. 9A, the appellant has claimed Rs 55,450 for the present and Rs 1,87,200 for the future. The High Court has allowed Rs 36,000 and Rs 72,000 respectively. We feel that there was no occasion for the High Court to be so mathematical on this question. Under the circumstances prevailing in the society in respect of home attendants, the High Court should have allowed the amount as claimed by the appellant. We accordingly allow the same. For Drugs and Tablets (Allopathic), claim has been made for Rs 9000 for the present and Rs 18,000 for the future. The High Court has allowed Rs 5400 and Rs 10,800 respectively under that head as detailed against SI. No. 10. The claim under this head appears to be reasonable and should have been allowed, we allow the same. Against SI. No. 11 the appellant has claimed for Ayurvedic treatment Rs 7800 for the present and Rs 37,440 for the future. The High Court has allowed Rs 7200 and Rs 12,000 respectively. According to us this part does not require any interference. Under SI. No. 12 (i) bedsore dressing charges for the present and future have been claimed respectively at Rs 72,900 and Rs 1,29,600 against which the High Court has allowed Rs 20,000 and Rs 10,000 respectively. In normal course for bedsore the claim for Rs 72,900 for the present and Rs 1,29,600 for the future appears to be exorbitant. The High Court has rightly directed payment of Rs 20,000 and Rs 10,000. As such this part of the finding of the High Court does not require interference. Under SI. No. 12 (ii) claim has been made for catheterization charges at Rs 1,29,600 for the present and Rs 2,59,200 for the future. The High Court has allowed Rs 10,000 and Rs 5000 respectively. We are of the opinion that the amount awarded by the High Court under this head does not require any interference. So far the order of the High Court in respect of bladder-wash charges and enema charges is concerned, it also does not require any interference. Under SI. No. 13 Rs 20,100 has been claimed as charges for consulting surgeons for the present and Rs 14,400 has been claimed for the future. The High Court has allowed Rs 5000 for the present and the same amount for future. We feel that this part of the finding of the High Court does not require any interference. For physiotherapy under SI. No. 14, Rs 34,200 has been claimed for the present and Rs 1,87,200 for the future. The High Court has allowed Rs 12,000 for the present and Rs 12,000 for the future. It is well known that for victims of road accidents, physiotherapy is one of the acknowledged mode of treatment which requires to be pursued for a long duration. The High Court should have allowed Rs 34,200 as claimed by the appellant for the present and at least Rs 50,000 for the future. However we allow the same. In respect of loss of earnings under Si. No. 15 claim has been made for Rs 1,80,000, the High Court has allowed Rs 1,44,000. The High Court should have allowed the whole claim. We allow the same. For loss of future earnings, claim has been made at Rs 3,60,000. The High Court has allowed Rs 1,62,000 in respect of loss of future earnings. This part of the award does not require any interference because an amount of Rs 1,62,000 can be held to be a reasonable amount to be awarded taking all facts and circumstances in respect of the future earnings of the appellant.

17. The claim under SI. No. 16 for pain and suffering and for loss of amenities of life under SI. No. 17, are claims for non-pecuniary loss. The appellant has claimed lump sum amount of Rs 3,00,000 each under the two heads. The High Court has allowed Rs 1,00,000 against the claims of Rs 6,00,000. When compensation is to be awarded for pain and suffering and loss of amenity of life, the special circumstances of the claimant have to be taken into account including his age, the unusual deprivation he has suffered, the effect thereof on his future life. The amount of compensation for nonpecuniary loss is not easy to determine but the award must reflect that different circumstances have been taken into consideration. According to us, as the appellant was an advocate having good practice in different courts and as because of the accident he has been crippled and can move only on wheelchair, the High Court should have allowed an amount of Rs 1,50,000 in respect of claim for pain and suffering and Rs 1,50,000 in respect of loss of amenities of life. We direct payment of Rs 3,00,000 (Rupees three lakhs only) against the claim of Rs 6,00,000 under the heads “Pain and Suffering” and “Loss of amenities of life”.

18. So far the direction of the High Court regarding payment of interest at the rate of 6% over the total amount held to be payable to the appellant is concerned, it has to be modified. The High Court should have clarified that the interest shall not be payable over the amount directed to be paid to the appellant in respect of future expenditures under different heads. It need not be pointed out that interest is to be paid over the amount which has become payable on the date of award and not which is to be paid for expenditures to be incurred in future. As such we direct that appellant shall not be entitled to interest over such amount.

19. The appeals of the appellant are allowed to the extent indicated above. No costs.

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IN THE SUPREME COURT OF INDIA
UNION OF INDIA AND ORS. ETC. …PETITIONER
Vs.
VIRPAL SINGH CHAUHAN ETC. …RESPONDENT
DATE OF JUDGMENT: 10/10/1995
BENCH: JEEVAN REDDY, B.P. (J) AGRAWAL, S.C. (J)
CITATION:
1996 AIR 448 1995 SCC (6) 684
JT 1995 (7) 231 1995 SCALE (5)648

J U D G M E N T

B.P. JEEVAN REDDY, J.

C.A. NOS.9272-73 & 9277 1995 (ARISING OUT OF S.L.P. (C) NOS.6468 OF 1987, 1682/88, AND 8111/94), C.A. NO.2261/87, 5044/89, 4436/90, 18/90, W.P. (C) 1208/87 AND 565/93. [Main Opinion] Leave granted in Special Leave Petitions.

1. These appeals/writ petitions raise an important but difficult question concerning the nature of rule or reservation in promotions obtaining in the Railway service and the rule concerning the determination of seniority between general candidates and candidates belonging to reserved classes in the promoted category. The issue is best illustrated by taking the facts in the first of these matters, viz., Union of India and Ors. v. Virpal Singh Chauhan – civil appeal No.9272/95 arising from Special Leave Petition (C) No.6468 of 1987. The appeal is preferred against the judgment of the Central Administrative Tribunal (Allahabad Bench) disposing of Original Application No.647 of 1986 with certain directions. [It was originally filed as a writ petition in the Allahabad High Court which, on the constitution of the Central Administrative Tribunal (Allahabad Bench), was transferred to the Tribunal.] It was filed by, what may be called for the sake of convenience, employees not belonging to any of the reserved categories (hereinafter referred to as “general candidates” – which means open competition candidates). The railway Administration as well as the employees belonging to reserved categories, i.e., Scheduled Castes and Scheduled Tribes were impleaded as respondents. The writ petition/original application came to be filed in the following circumstances:

Among the category of Guards in the Railway service, there are four categories, viz., Grade `C’ Grade `B’ Grade `A’ and Grade `A’special. The initial recruitment is made to Grade `C’ and they have to ascend rung after rung to go upwards. The promotion from one grade to another in this category is by seniority-cum-suitability. In other words, they are “non-selection posts”. The rule of reservation is applied not only at the initial stage of appointment to Grade `C’ but at every stage of promotion. The percentage reserved for Scheduled Castes is fifteen percent and for Scheduled Tribes 7.5%, a total of 22.5 percent. To give effect to the rule of reservation, a forty-point roster was prepared in which certain points were reserved for Scheduled Castes and Scheduled Tribes respectively, commensurate with the percentage of reservation in their favour. For Scheduled Castes candidates, the places reserved in the roster were:

1, 8, 14, 22, 28 and 36 and in the case of Scheduled Tribes candidates, they were: 4, 17 and 31. Subsequently, a hundred-point roster has been prepared, again reflecting the aforesaid percentages.

2. In the year 1986, the position was that both the petitioners in the original appalication (general candidates) and the party-respondents in the said original application (members of Scheduled Castes and Scheduled Tribes) were in the grade of Guards Grade `A’ in the Northern Railway. On August 1, 1986, the Chief Controller, Tundla passed orders promoting certain general candidates on ad hoc basis to Grade `A’ special. Within less than three months, however, they were sought to be reverted and in their place, members of Scheduled Castes/Scheduled Tribes were sought to be promoted. Compalining that such a course of action is illegal, arbitrary and unconstitutional, the general candidates approached the High Court, which petition, as stated above, was transferred to the Tribunal.

The general candidates asked for three reliefs, viz., (a) to restrain the Railway authorities from filling up the posts in the higher grades in the category of Guards by applying the rule of reservation; (b) to restrain the Railway Administration from acting upon the illegal seniority list prepared by them; and (c) to declare that the petitioners (general candidates) are entitled to be promoted and confirmed in Guard Grade `A’ special on the strength of their seniority earlier to the reserved category employees.

Their contention, in short, was (1) that once the quota prescribed for a reserved category is satisfied, the rule of reservation – or the forty-point roster prepared to give effect to the said rule – cannot be applied or followed any longer and (2) that the forty-point roster is prepared only to give effect to the rule of reservation. It may provide for accelerated promotion but it cannot give seniority also to a reserved category candidate in the promoted category.

According to them, the seniority in Guard Grade `C’ should govern and should be reflected in all subsequent grades notwithstanding the earlier promotion of the members of the reserved categories. Their case was that even if a reserved category member `X’ is promoted from Grade `C’ to Grade `B’ earlier than his senior `Y’ (general candidate), the position should be that when the general candidate also gets promoted later to Grade `B’ which means that in Grade `B’, `Y’ again becomes senior to `X’. They submitted that this should be the rule to be followed to ensure that command of Articles 14 and 16 of the Constitution of India prevails.

They relied upon two decisions of the Allahabad High Court and another decision of Madhya Pradesh in support of their contention. They also relied upon certain circulars of the Railway Board in this behalf.

3. The case of the Railway Administration (Respondent Nos.1 to 4 in the original application) was that the Administration is maintaining seperate seniority lists for each of the grades in the category of Guards according to the policy in voque. The ad hoc promotions of general candidates ordered on August 1, 1986 were irregular inasmuch as the seniors in the category of Grade `A’ Guards were ignored and juniors promoted by the Chief Controller, Tundla. The Chief Controller, Tundla was not competent to order the said ad hoc promotions. The promotions ordered later of Scheduled Castes/Scheduled Tribes candidates is strictly in accordance with the seniority position in Grade `A’ and is unobjectionable. The Administration submsitted that seniority is determined on the basis of the date of promotion and since promotion effected applying the forty- point roster cannot be said to be an ad hoc promotion, a Scheduled Caste/Scheduled Tribe candidate promoted earlier to a particular grade becomes senior to another candidate, general or otherwise, who is promoted to that grade later.

In short, according to them, the date of promotion to a particular grade determines the seniority in that grade.

4. The reserved candidates (respondents in the original application) supported the stand of the Administration. They submitted that the seniority list pertaining to Guards Grade `C’ is not relevant and cannot be followed in the matter of promotion to Grade `A’ special from Grade `A’. For the purpose of promotion to Grade-a special, the seniority list pertaining to Grade `A’ should be followed and since in that grade, the Scheduled Castes/Scheduled Tribes candidates were seniors, they were entitled to be promoted to Grade `A’ Special earlier than their juniors in that seniority list.

They submitted that the seniority in a grade should be determined according to the date of promotion/appointment to that grade and not in any other manner. They submitted that inasmuch as in the higher grades, the representation of Scheduled Castes/Scheduled Tribes members was quite inadequate, the Scheduled Castes/Scheduled Tribes candidates obtained rapid promotions from one grade to another but it is neither contrary to the rules nor is it inconsistent with Articles 16 and 14. In fact, the very rule of reservation in promotions is meant to increase the representation of Scheduled Castes/Scheduled Tribes candidates in the higher echelons of services quickly. No exception can be taken to the said rule, they submitted.

5. Since the Tribunal has strongly relied upon two decisions of the Allahabad High Court and a decision of the Madhya Pradesh High COurt, it would be appropriate to refer to their ratio briefly.

6. In Civil Writ Petition No.1809 of 1972, J.C. Mallik v. Union of India, the allahabad High Court held that the rule of reservation or the forty-point roster, as the case may be, cannot be followed and applied once the representation of Scheduled Castes/Scheduled Tribes in a particular grade, cadre or service, reaches the prescribed level of percentage. In other words, once the quota of 22 1/2% in favour of Scheduled Castes/Scheduled Tribes is satisfied, the rule of reservation/forty-point roster can no longer be followed and applied. It may be mentioned that this decision has since been referred with approval in the Constitution Bench decision in R.K. Sabharwal v. State of Punjab (1995 (2) S.C.C.745).

7. The other decision of the Allahabad High Court is in Second Appeal No.2745 of 1983 arising from Suit No.308 of 1981, M.P. Dwivedi v. Union of India & Ors. The learned District Judge, whose decision was under appeal in the said second appeal, had decreed the suit filed by the general candidates in the following words: “The defendants- appellants, their agents and servnts are restrained by means of permanent injunction from filling up the posts of higher grade in the category of Guards by way of reservation in favour of Scheduled Castes and Scheduled Tribes candidates in excess of fixed by Railway Board. Their claim for declaration to the effect that they are entitled to be promoted to the higher grades in the category of Guards on the strength of their seniority list prepared by the defendant for Guards Grade-C on their initial grades is also decreed”. When the matter came to the High Court, the learned Single Judge, who disposed of the second appeal, held:

“(A)fter having considered the entire position I am of the opinion that in the present case promotion from grade `A’ to `A’ Special cannot be made on the basis of reservation so long as Guards belonging to Scheduled Castes or Scheduled Tribes class in grade 1A’ Special are in excess of the percentage reserved for them. The position, however, will always remain fluctuating and will have to be reviewed by the authorities from time to time. But the right of Scheduled Castes and Scheduled Tribes candidates to promotion merely on the basis or their seniority-cum- suitability without any reference to reservation will not be barred. As and when percentage of Scheduled Castes and Scheduled Tribes guards in grade Scpecial goes down below the requisite percentage their right to promotion on the basis of reservation will revive.

Subject to this modification the decree for injunction passed by the Court below is confirmed and the appeals are dismissed.”

8. The judgment of the Madhya Pradesh High Court is in G.C. Jain v. Divisional Rail Manager, Central Railway (reported in 1986 (1) S.L.R.588). The passage relied upon by the Tribunal reads thus:

“Those SC & ST candidates who have come or been promoted due to reservation quota, having already jumped the queue, cannot be permitted to compete with general candidates for further promotion. They are a special class by themselves and they have only to go to the reserve quota for further promotion.

If the reserve quota is already full in the next grade, the SC & ST candidates just below that grade in the reserve quota will have to wait till vacancy occurs in the higher grade in the reserve quota. However, we want to make it clear that this will not apply to such SC & ST candidates who on their own in competition with the general candidates have atained their present position and not due to reservation, they are entitled to compete further with the general candidates and they will not be affected for promotion in the general quota even if the reserved quota is full in the next higher grade”.

9. On the basis of the aforesaid decisions and certain circulars of the Railway Board, which will be referred at a later stage, the Tribunal laid down the following principles in Para-26 of its judgment. (We have split up the paragraph into several sub-paras to bring out the several principles distinctly):

“26. To clarify the position further we will enunciate the principles of determining seniority in situations as are under dispute here.

The basic seniority in grade `C’ will be the quiding seniority list for the cadre of quards.

Reservations in promotions would be made against posts in the grades and not against vacancies.

Persons who are promoted by virtue of the application of roster would be given accelerated promotion but not the seniority.

The seniority in a particular grde amongst the incumbents available for promotion to the next grade will be recast each time new incumbents enter from the lower grade on the basis of the initial grade `C’ Guard who gets promoted to grade `B’ or from grade `B’ to grade `A’ and so on will find his position amongst the incumbents of that grade on the basis of the original grade `C’ seniority.

Such persons as are superseded for any reasons other than on account of reservation will be excluded. A person superseded on account of a punishment or unfitness will count his seniority on the revised basis and not on original grade `C’ seniority.

The reserved community candidates who are senior not by virtue of reservations but by the position in grade `C’ selections which the grade `C’ seniority list will automatically take care of, will not wait for reservation percentage to be satisfied for their promotion. They will get promoted in their normal turn irrespective of the percentage of reserved community candidates in the higher grade. Others who get promoted as a result of reservation by jumping the queue will wait for their turn.

Reservation will again have to be applied on depletion of the reservation quota in the higher grade to make good the shortfalls.”

10. The Tribunal directed that a fresh seniority list be drawn in the light of the principles enunciated by it in Para-26 and promotions made on that basis. The Tribunal rejected the contention of the general candidates that “no promotions at all be made for reserved community candidates because quota is full”. Similarly, it rejected the contention of the general candidates (petitioners in the original applaication) that all promotions in the higher grades shall be made on the basis of the seniority list pertaining to Grade `C’ alone. It held that the seniority list will be separately prepared for each grade in accordance with the principles enunciated by it and that the list must be updated every time there is promotion to that category. It clarified that a reserved community candidate who gets promotion on his own merit and not on the basis of rule of reservation-cum-forty-point roster will be entitled to be promoted irrespective of the quota position. But those reserved community candidates who obtained promotion by jumping the queue on the basis of rule of reservation will get the promotion on the basis of the revised seniority list to be prepared in accordance with the directions contained in Para-26.

11. The Indian Railway Establishment Manual, Volume-I, contains instructions regulating inter alia seniority of non-gazetted Railway servants. They are contained in Chapter-III. Para 306 says, “candidates selected for appointment at an earlier selection shall be senior to those selected later irrespective of the dates of posting except in the case covered by paragraph 305 above”. Para 309 reads:

“SENIORITY ON PROMOTION.– Paragraph 306 above applies equally to seniority in promotion vacancies in one and the same category due allowance being made for delay, if any, in joining the new posts in the exigencies of service.” Para 314 says that subject to Paragraphs 302 to 306, “when the dates of appointment to the grade are the same, the date of entry into the grade next below it shall determine seniority”. Para 319 deals with seniority on promotion to non-selection posts. This paragraph states that “promotion to non-selection posts shall be on the basis of seniority- cum-suitability, suitability being judged by the authority competent to fill the post, by oral and/or written test or a departmental examination or a trade test or by scrutiny of record of service as considered necessary.” It further says that “a railway servant, once promoted in his turn after being found suitable against a vacancy, which is non- fortuitous, should be considered as senior in that grade to all others who are subsequently promoted after being found suitable”.

12. So far as the rule of reservation is considered, it has been made applicable to Railway service by orders issued by the Railway Board from time to time pursuant to and in obedience to the policy decisions of the Ministry of Home Affairs. The decision of this Court in Akhil Bhartiya Soshit Karamchari Sangh v. Union of India (1981 (1) S.C.C.264) refers to the several orders issued from time to time in this behalf. They are also found at Pages 4 to 6 (Chapter-I) and Pages 59 to 89 (Chapter-III) of the Brochure on Reservation for Scheduled Castes and Scheduled Tribes in Railway Services (Third Edition-1985). We do not think it necessary to refer to them in this judgment since we are concerned herein not with the validity of the rule of reservation but with its nature and its effect upon the question of seniority. We shall, therefore, refer to the Railway Board’s circulars alone relevant on this aspect.

Here too, we will refer first to orders applicable to non- selection posts. Railway Board’s letter dated 13th August, 1959 is of a general nature. It says that “as a general rule the seniormost candidate should be promoted to a higher non- selection post, susbject to his suitability. Once promoted against a vacancy which is non-fortuitous, he should be considered as senior in the grade to all others who are subsequently promoted”. [Printed at Page 507 in Chapter-XII of the Brochure aforesaid]*. The Railway Board’s letter dated August 31, 1982 (at Page 512 – Chapter XII of the Brochure) deals with the subject “Reservation for Scheduled Castes and Scheduled Tribes in promotion in Group `D’ and `C’ (Class IV and III) on the basis of seniority-cum- suitability”. Para-4 of the letter reads:

“Against the above background, the matter has been reviewed by the Board.

It has been decided that posting of Scheduled Caste/Scheduled Tribe candidates on promotions in non- selection posts should also be done as per the reserved points on the roster susbject, however, to the condition that seniority of the Scheduled Caste/Scheduled Tribe candidates in comparison to other candidates will continue to be governed by the panel position in the case of categories where training is not provided and in accordance with the merit position in the examination where training is provided.” (Emphasis added) ———————————————————— * The several circulars and orders issued by the Railway Board from time to time are arranged chapter-wise in the said Brochure. Chapter-V deals with Rosters, Chapter-IX with promotion to non-selection posts and Chapter-XII with confirmation and seniority. The Brochure is published by the Government of India, Ministry of Railways (Railway Board), New Delhi.

13. It is evident that this letter is speaking of the seniority position in the initial entry category/grade. It says that while posting shall be done as per roster points, seniority shall continue to be governed by the ranking given in the selection list/panel. This clearly brings out the departure being made from the normal principle that the date of entry in a category/grade determines the seniority.

14. Indeed, the Railway Board’s letter dated January 19, 1972 (Pages 194-195 – Chapter-VIII dealing with promotion to selection posts – of the Brochure) shows that even in the case of promotions made on the basis of merit, the same principle applies.

15. The Railway Board’s letter dated October 20, 1960 referred to in the judgment of Madhya Pradesh High Court in G.C. Jain says, “seniority of SC/ST employees will be determined under the normal rules. The reservation roster is considered only a machinery to ensure the prescribed percentage of reservation for SC/ST employees and should not be related to the question of seniority and confirmation. If any of the SC/ST employee is confirmed in the post by virtue of roster, such confirmation will not give them any benefit in respect of seniority”. Again, the very same idea stated clearly.

16. At Page 503 of the Brochure, in Chapter-XXII dealing with confirmation and seniority, Railway Board’s letter dated February 11, 1972 is extracted, the relevant portion whereof reads:

“Sub: Reservation for Scheduled Castes and Scheduled Tribes– Application of roster both at the time of initial recruitment and confirmation.

Reference Board’s letter No.E(SCT) 62CM15/7 dated 20th April 1963 which provides that the reservation roster is to be applied only at the time of initial recruitment and that confirmation should be made in the order of seniority which in the case of non- trained categories is determined on the basis of the position in the panel supplied by the Railway Service Commission and in the case of trainee categories on the basis of the merit position in the examination.

2. The Board after careful consideration have decided that in the posts filled by direct recruitment on or after the date of issue of this letter, reservation may be made for Scheduled Castes and Scheduled Tribes both at the time of initial appointment on temporary basis as well as at the time of confirmation. In posts filled by promotion, however, no reservation is admissible at the stage of confirmation of promotees and the existing procedure of confirming employees in order of their panel position may continue.” (Emphasis added)

17. Again at Page 508, extracts of Railway Board’s letter dated January 19, 1972 are set out, which read:

“3. The seniority of candidates belonging to Scheduled Castes and Scheduled Tribes vis-a-vis others will continue to be determined as at present, i.e., according to the panel position in the case of categories where training is not provided and in accordance with the merit position in the examination where training is provided.” And finally at Page 512, the circular/letter of the Railway Board dated August 31, 1982 is set out, which has already been extracted hereinbefore.

18. Pausing here for a moment, we must explain what does panel mean and signify in the case of promotions. Though we enquired repeatedly, this aspect could not be clarified by the learned Additional Solicitor General. In particular, we wanted to know whether a panel is prepared only in the case of selection posts or is it also prepared in the case of non-selection posts. The several instructions in Indian Railway Establishment Manual are also not helpful on this aspect. We are, therefore, left to interpret the expression ourselves. Having regard to the fact that in all the above circulars/letters, the expression “panel” has been used to denote a merit list or select list, as it may be called, we think it reasonable to understand as a panel which is prepared in the case of selection posts only. In the case of non-selection posts, there is no question of such a panel.

In their case, the senior is promoted automatically unless he is found to be unsuitable to hold the promotion post. No panel, i.e., merit list or select list is called for in the case of non-selection posts. May be, ultimately, a list of persons to be promoted is prepared but that is neither a merit list, nor a select list.

19. Sri Altaf Ahmed, learned Additional Solicitor General questioned the correctness and validity of the principles enunciated by the Tribunal in Para-26 of its judgment. He submitted that according to the Indian Railway Establishment Manual, seniority is determined by the date of promotion/appointment to the concerned grade and that the said principle cannot be altered or departed from in the name of ensuring equality. Once the rule of reservation is remembered that in the higher echelons of administration, representation of Scheduled Castes/Scheduled Tribes has been inadequate all these years, there is nothing surprising if the members of Scheduled Castes/Scheduled Tribes get promotions sooner and earlier than the general candidates.

This is the natural consequence of applying the rule of reservation in promotions – and not an unintended one. The said consequence cannot, therefore, be a basis for evolving a rule which partially off-sets the very purpose and meaning of the rule of reservation. Sri Altaf Ahmed further submitted that effecting promotions in accordance with the roster vacancies are not and cannot be called “fortuitous promotions”. They are regular vacancies and promotion to them is a regular promotion. He relied upon the decision of the Central Administrative Tribunal in Durga Charan Haldar v. Union of India (Original Application No.854 of 1990) wherein it has been held that the date of promotion, effected following the forty-point roster/hundred-point roster, is determinative of seniority. He submitted that the decision of the Central Administrative Tribunal (Patna Bench) to the contrary is the subject matter of appeal in this batch. The Patna Tribunal has followed the decision of the Allahabad Tribunal in Virpal Singh Chauhan.

20. Sri Rajeev Dhawan, learned counel appearing for the respondents-general candidates, put forward the following submissions while opposing the contentions of the learned Additional Solicitor General:

(i) Article 16(4) of the Constitution enables the State to define the extent and nature of the benefits to be extended to the backward classes. It is not as if there is only one particular method of providing reservations under the said clause.

(ii) The purpose behind Article 16(4) is to ensure adequate representation to backward classes in the administrative apparatus of the State. The purpose of Article 16(4) is only to ensure aequate representation and not to confer additional benefits – other than those which logically flow from the rule of reservation. As soon as adequate representation is achieved, the rule of reservation must be kept in abeyance and if there is a roster the application of the roster must be stopped.

(iii) A harmonious construction of clauses (4) and (1) of Article 16 – both of which are indeed facets of the very same principle of equality – implies that while the members of reserved categories will be entitled to equal treatment in all matters relating to service conditions, they cannot claim accelerated seniority in addition to accelerated promotion. If this principle is not recognised, it would result in the reserved category members stealing an additional march over the general candidates which defeats the quarantee of equality extended by Article 16(1) to general candidates. In other words, giving accelerated seniority in addition to accelerated promotion amounts to conferring double benefit upon the members of reserved category and is violative of rule of equality in Article 16(1).

(iv) The command of Article 335 of the Constitution shall also have to be kept in mind in this behalf. Accelerated promotion-cum-accelerated seniority is destructive of the efficiency of administration inasmuch as by this means the higher echelons of administration come to be occupied almost entirely by members of reserved categories – at any rate, far beyond the percentrage of reservation prescribed for them.

(v) The decisions of this Court clearly establish the distinction between promotion and seniority. It would be too simplistic to say that seniority automatically follows the promotion.

(vi) A candidate belonging to reserved category appointed/promoted on the basis of rule of reservation should not be held entitled to compete for a general vacancy in the roster. They should be confined to reserved vacancies alone. Non-observance of this rule has resulted in a situation where in the higher grades of Railway Guards the representation of Scheduled Castes/Scheduled Tribes has risen upto seventy percent (in the case of Guard Super Grade) and forty percent (in the case of Guard Grade `A’ Special) instead of 22.5 percent. This anomaly cannot be allowed to occur.

21. Sri K.B. Rohtagi, learned counsel appearing for the respondents in Civil Appeal No.2261 of 1987 (for Guards belonging to Scheduled Castes/Scheduled Tribes categories) supported the contentions of the learned Additional Solicitor General.

22. Clause (4) of Article 16 of the Constitution enables the State to make “any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.” In Indra Sawhney v. Union of India (1992 Suppl.(III) S.C.C.217), it has been held by the majority (in the opinion delivered by one of us, B.P. Jeevan Reddy, J.):

“The question then arises whether clause (4) of Article 16 is exhaustive of the topic of reservations in favour of backward classes. Before we answer this question it is well to examine the meaning and content of the expression `reservation’. Its meaning has to be ascertained having regard to the context in which it occurs. The relevant words are any provision for the reservation of appointments or posts’. The question is whether the said words contemplate only one form of provision namely reservation simpliciter, or do they take in other forms of special provisions like preferences, concessions and exemptions.

In our opinion, reservation is the highest form of special provision, while preference, concession and exemption are lesser forms. The constitutional schemeand context of Article 16(4) induces us to take the view that larger concept of reservations takes within its sweep all supplemental and ancillary provisions as also lesser types of special provisions like exemptions, concessions and relaxations, consistent no doubt with the requirement of maintenance of efficiency of administration – the admonition of Article 335. The several concessions, exemptions and other measures issued by the Railway administration and noticed in Karamchari Sangh (1981 (1) S.C.C.246) are instances of supplementary, incidental and ancillary provisions made with a view to make the main provision of reservation effective i.e., to ensure that the members of the reserved class fully avail of the provision for reservation in their favour. The other type of measure is the one in Thomas (1976 (2) S.C.C.310). There was no provision for reservation in favour of Scheduled Castes/Scheduled Tribes in the matter of promotion to the category of Upper Division Clerks. Certain tests were required to be passed before a Lower Division Clerk could be promoted as Upper Division Clerk. A large number of Lower Division clerks belonging to SC/ST were not able to pass those tests, with the result they were stagnating in the category of LDCs. Rule 13-AA was accordingly made empowering the Government to grant exemption to members SC/ST from passing those tests and the government did exempt them, not absolutely, but only for a limited period. This provision for exemption was a lesser form of special treatment than reservation. There is no reason why such a special provision should not be held to be included within the larger concept of reservation.”

23. This statement of law makes it clear that there is no uniform or prescribed method of providing reservation. The extent and nature of reservation is a matter for the State to decide having regard to the facts and requirements of each case. Such a situation was indeed dealt with in National Federation of State Bank of India v. Union of India & Ors. (1995 (3) S.C.C. 432) [rendered by one of us, B.P.

Jeevan Reddy, J. on behalf of the Bench which included R.M. Sahai and S.C. Sen, JJ.]. In the case of service under Public Sector Banking Institutions, while reservation in promotions was provided in the case of promotion from Class- IV to Class-III, Class-III to Class-II and from Class-II to Class-I, no such reservation was provided so far as promotions within Class-I were concerned. Only a concession (set out in the judgment) was provided in favour of Scheduled Castes/Scheduled Tribes candidates with a view to enable them to obtain promotions within Clas-I which they may not have obtained otherwise. It was held by this Court that such a concession can also be provided under Article 16(4). In short, it is open to the State, if it is so advised, to say that while the rule of reservation shall be applied and the roster followed in the matter of promotions to or within a particular service, class or category, the candidate promoted earlier by virtue of rule of reservation/roster shall not be entitled to seniority over his senior in the feeder category and that as and when a general candidate who was senior to him in the feeder category is promoted, such general candidate will regain his seniority over the reserved candidate notwithstanding that he is promoted subsequent to the reserved candidate. There is no unconstitutionality involved in this. It is permissible for the State to so provide. The only question is whether it is so provided in the instant case?

24. It is the common case of the parties before us that the rule of reservation in the Railway services – to be more precise to the category of Railway Guards, whether in the matter of initial appointment or in the matter of promotion, from one grade to another, is provided by the circulars/letters of the Railway Board. These circulars/letters have been issued by the Railway Board in exercise of the power conferred upon it by Rule 123 of the Statutory Rules framed by the President of India. We have referred to the circulars/letters of the Railway Board hereinbefore. In the circular/letter dated August 31, 1982 which deals with the subject of “Reservation for Scheduled Castes and Scheduled Tribes in promotion in Group `D’ and `C’ (Class IV and III) on the basis of seniority-cum- suitability” it is specifically ordered that while “posting of Scheduled Caste/Scheduled Tribe candidates on promotions in non-selection posts should also be done as per the reserved points on the roster”, such promotion shall be “subject to the condition that seniority of the Scheduled Caste/Scheduled Tribe candidates in comparison to other candidates will continue to be governed by the panel position in the case of categories where training is not provided and in accordance with the merit position in the examination where training is provided”. So far as the several grades among Railway Guards are concerned, the relevant service conditions do not provide for any training followed by examination on promotion from one grade to another. Hence, the seniority between the reserved category candidates and general candidates in the promoted category shall continue to be governed by their panel position. We have discussed hereinbefore the meaning of the expression “panel” and held that in case of non-selection posts, no “panel” is prepared or is necessary to be prepared. If so, the question arises, what did the circular/letter dated August 31, 1982 mean when it spoke on seniority being governed by the panel position? In our opinion, it should mean the panel prepared by the selecting authority at the time of selection for Grade `C’. It is the seniority in this panel which must be reflected in each of the higher grade.

This means that while the rule of reservation gives accelerated promotion, it does not give the accelerated – or what may be called, the consequential – seniority. There is, however, one situation where this rule may not have any practical relevance. In a given case, it may happen that by the time the senior general candidate gets promoted to the higher grade, the junior reserved category candidate (who was promoted to the said higher grade earlier) may got promoted to yet higher grade. In other words, by the time the senior general category candidate enterss, say, Grade `B’, his junior Scheduled Caste/Scheduled Tribe candidate is promoted to Grade `A’. It is obvious that in such a case, the rule evolved in the aforesaid circulars does not avail the senior general candidate for there can be no question of any seniority as between, say, a person in `B’ grade and a person in `A’ grade.

25. Now let us see how does the above principle operate in practice. Selection is made for direct recruitment to Grade `C’ Guards. A panel is prepared by the selecting authority on the basis of and in the order of merit. Appointments have to be made from out of this list/panel. But appointment orders will not be issued in the order in which the candidates are arranged in this select list/panel; they will be issued following the roster. Suppose the forty-point roster is being operated afresh, then the first vacancy inthe roster would go to a Scheduled Caste candidate though he may be down below in the select list/panel. The candidate at Sl. No.1 in the said select list – a general candidate – will be appointed in the second vacancy. But once appointed, the general candidate (at Sl. No.1 in the select list) will rank senior to the Scheduled Caste candidate though he (general candidate) is appointed subsequent to the Scheduled Caste candidate. Now take the case of promotions (based on seniority-cum-suitability, i.e., non-selection posts) to Grade `B’. Roster applies even to promotions to Grade B’.

Again assume that the forty-point roster is opening now in Grade `B’. The first vacancy has again got to go to a Scheduled Caste candidate though he may not be the senior- most in Grade `C’. The senior-most candidate in Grade `C’ (the general candidate, who was at Sl. No.1 in the select list/panel and who regained his seniority on appointment to Grade `C’ as aforestated) will be promoted in the next vacancy. But once promoted, the general candidate again becomes senior to the Scheduled Caste candidate though promoted subsequent to the Scheduled Caste candidate. And so on and so forth. It is in this manner that the rule of reservation (and the roster) merely enables a reserved category candidate to obtain an appointment or promotion, as the case may be – which he may not have obtained otherwise or would not have obtained at the time he is now getting – but it does not give him the seniority. In this sense, the rule confers a limited benefit – a qualified benefit. We have already stated that such a rule of reservation does not fall foul of Article 16(4).

26. We are of the opinion that the aforesaid circulars/letters providing for reservation in favour of Scheduled Castes/Scheduled Tribes candidates, rosters and their operation and on the subject of seniority as between general candidates and reserved category candidates, being in the nature of special rules prevail over the general instructions contained in Volume-I of the Indian Railway Establishment Manual including those contained in Paras 306, 309 and 319 et al. Accordingly, we agree with the conclusion of the Tribunal in the order under appeal (Virpal Singh Chauhan) though we may not agree with all the reasons given by the Tribunal. In other words, we may not agree with the view expressed by the Tribunal that a harmonious reading of Clauses (1) and (4) of Article 16 should mean that a reserved category candidate promoted earlier than his senior-general category candidate in the feeder category shall necessarily be junior in the promoted category to such general category candidate. No such principle may be said to be implicit in the said clauses. But inasmuch the Railway Board’s ciruclars concerned herein do provide specifically for such a situation and since they cannot be said to be violative of the constitutional provisions, they must prevail and have to be given effect to. It is not brought to our notice that the said instructions are inconsistent in any manner with any of the statutory provisions or statutory rules relevant in this behalf.

27. So far as the other question considered by the Tribunal (viz., that once the representation of the reserved categories in a given unit of appointment reaches the prescribed percentage, the rule of reservation or the roster based on it cannot be given effect to), the Constitution Bench decision of this Court in R.K. Sabharwal v. State of Punjab settles the issue. In this decision, it has been held that where the total number of posts in a cadre reserved for reserved candidates are filled by operation of a roster, the object of rule of reservation must be deemed to have been achieved and that thereafter there would be no justification to operate the roster. Para-5 of the said judgment brings out the reasons for the said rule and the rule itself:

“We see considerable force in the second contention raised by the learned counsel for the petitioners. The reservations provided under the impugned Government instructions are to be operated in accordance with the roster to be maintained in each Department. The roster is implemented in the form of running account from year to year. The purpose of `running account’ is to make sure that the Scheduled Castes/Scheduled Tribes and and Backward Classes get their percentage of reserved posts. The concept of `running account’ in the impugned instructions has to be so interpreted that it does not result in excessive reservation. `16% of the posts…’ are reserved for members of the Scheduled Castes and Backward Classes. In a lot of 100 posts those falling at Serial Numbers 1, 7, 15, 22, 30, 37, 44, 51, 58, 65, 72, 80, 87 and 91 have been reserved and earmarked in the roster for the Scheduled Castes.

Roster points 26 and 76 are reserved for the members of Backward Classes. It is thus obvious that when recruitment to a cadre starts then 14 posts earmarked in the roster are to be filled from amongst the members of the Scheduled Castes. To illustrate, first post in a cadre must go to the Scheduled Castes and thereafter the said class is entitled to 7th, 15th, 22nd and onwards upto 91st post. When the total number of posts in a cadre are filled by the operation of the roster then the result envisaged by the impugned instructions is achieved.

In other words, in a cadre of 100 posts when the posts earmarked in the roster for the Scheduled Castes and the Backward Classes are filled the percentage of reservation provided for the reserved categories is achieved. We see no justification to operate the is to operate only till the quota provided under the impugned instructions is reached and not thereafter. Once the prescribed percentage of posts is filled the numerical test of adequacy is satisfied and thereafter the roster does not survive. THe percentage of reservation is the desired repesentation of the Backward Classes in the State Services and is consistent with the demographic estimate based on the proportion worked out in relation to their population. The numerical quota of posts is not a shifting boundary but represents a figure with due application of mind. Therefore, the only way to assure equality of opportunity to the Backward Classes and the general category is to permit the roster to operate till the time the respective appointees/promotees occupy the posts meant for them in the roster. The operation of the roster and the `running account’ must come to an end thereafter.

The vacancies arising in the cadre, after the initial posts are filled, will pose no difficulty. As and when there is a vacancy whether permanent or temporary in a particular post the same has to be filled from amongst the category to which the post belonged in the roster.

For example, the Scheduled Caste persons holding the posts at roster points 1, 7, 15, retire then roese slots are to be filled from amongst the persons belonging to the Scheduled Castes.

Similarly, if the persons holding the post at points 8 to 14 or 23 to 29 retire then these slots are to be filled from among the general category. By following this procedure there shall neither be shortfall nor excess in the percentage of reservation.”

28. The Constitution Bench has, however, made it clear that the rule enunciated by them shall operate only prospectively [vide Para 11]. It has further been held in the said decision that the “percentage of reservation has to be worked out in relation to the number of posts which form the cadre-strength (and that) the concept of `vacancy’ has no relevance in operating the percentage of reservation”. (As a matter of fact, it is stated that this batch of cases were also posted for hearing before the Constitution Bench along with R.L. Sabharwal batch of cases but these cases were de- linked on the ground that they raise certain other issues which did not arise in R.K. Sabharwal.) Be that as it may, as a result of the decision in R.K. Sabharwal and the views/findings recorded by us hereinabove, the following position emerges:

(i) Once the number of posts reserved for being filled by reserved category candidates in a cadre, category or grade (unit for application of rule of reservation) are filled by the operation of roster, the object of rule of reservation should be deemed to have been achieved and thereafter the roster cannot be followed except to the extent indicated in Para-5 of R.K. Sabharwal. While determining the said number, the candidates belonging to the reserved category but selected/promoted on their own merit (and not by virtue of rule of reservation) shall not be counted as reserved category candidates.

(ii) The percentage of reservation has to be worked out in relation to number of posts in a particular cadre, class, category or grade (unit for the purpose of applying the rule of reservation) and not with respect to vacancies.

(iii) So far as Railway Guards in Railway service are concerned – that is the only category we are concerned herewith – the seniority position in the promoted category as between reserved candidates and general candidates shall be the same as their inter se seniority position in Grade `C’ at any given point of time provided that at that given point of time, both the general candidate and the reserved category candidates are in the same grade. This rule operates whether the general candidate is included in the same batch of promotees or in a subsequent batch. (This is for the reason that the circulars/letters aforesaid do not make or recognise any such distinction.) In other words, even if a Scheduled Caste/Scheduled Tribe candidate is promoted earlier by virtue of rule of reservation/roster than his senior general candidate and the senior general candidate is promoted later to the said higher grade, the general candidate regains his seniority over such earlier promoted Scheduled Caste/Scheduled Tribe candidate. The earlier promotion of the Scheduled Caste/Scheduled Tribe candidate in such a situation does not confer upon him seniority over the general candidate even though the general candidate is promoted later to that category.

29. If the above three rules are observed and followed, there may not remain much room for grievance on the part of the general candidates. While in the very scheme of things, it is not possible to give retrospective effect to these rules -a fact recognised in R.K. Sabharwal – the above rules, operated conjointly, should go a long way in maintaining a balance between the demands of merit and social justice.

30. Sri Rajeev Dhawan, learned counsel for the general candidates, pointed out, what according to him, are the inequitable and anamolous situations which would follow, if the candidate appointed/promoted on the basis of rule of reservation is not confined to reserved posts alone and is allowed to compete for general posts as well. In such a situation, he submits, the reserved candidate will enjoy yet another – third – advantage. Whenever, it is convenient to him, he will claim to be considered for a reserved post and where it is more convenient to him, he will claim to be considered for a general post, whereas a general candidate is restricted to general posts alone. In our opinion, however, the plea of the learned counsel cannot simply be accepted; his submission flies in the face of the established law on the subject.

31. Sri Dhawan then pointed out that Rule 3 stated above is not sufficient to do justice to the general candidates and that in practice, it has resulted in denial of just rights to general candidates. He elaborates his submission thus; a reserved category candidate may get promoted from Grade `C’ to Grade `B’ earlier than his senior general category candidate (senior with reference to the select list/panel prepared at the time of selection to Grade `C’ by operation of rule of reservation/roster. The general candidate who is senior to him in the said select list/panel may get promoted to Grade `B’ later but what may happen, meanwhile, is that the reserved category candidate is no longer there in Grade `B’ – he has ascended to Grade `A’. In such a situation, there will be no occasion for applying the aforesaid Rule 3 as between these two candidates. Sri Dhawan submits that this is precisely what has happened in the case of Railway Guards. Even the Railway Administration has admitted this situation in their counter, he says, though they have ascribed it to inadequate representation of the reserved categories in the higher grades. Sri Dhawan says that, in practice, the candidates belonging to reserved categories got rapid promotions, leaving their erstwhile senior general candidates in the category in which they were originally appointed. May be that Sri Dhawan’s complaint is true – we have already dealt with the possibility and consequence of such a situation – but his grievance, in effect, is not against Rule 3 aforestated but against the very rule of reservation being applied in promotions. It may be recalled that in Indra Sawhney, eight of the nine learned Judges constituting the Bench opined that Article 16(4) does not permit or warrant reservation in the matter of promotions.

This was precsely for the reason that such a rule results in several untoward and inequitous results. The Bench, however, permitted the existing rules in that behalf to operate for a period of five years from the date of judgment based as those rules were on an earlier Constitution Bench decision in General Manager, Southern Railway & Anr. v. Rangachari (1962 (2) S.C.R.687). It is another matter that since then a constitutional amendment has been brought in permitting reservation in promotions to the extent of Scheduled Castes and Scheduled Tribes only, we need express no opinion on the said amendment.

32. Sri Dhawan points out yet another anamoly. Where a candidate belonging to Scheduled Caste gets selected on his own merit, i.e., in the general category, he will be treated as a general candidate and on that account he suffers prejudice vis-a-vis another reserved category candidate who could not be selected on his own merit (i.e., in the general category) and was selected only because of and under the rule of reservation. For illustrating his submission, learned counsel says, take an instance where out of forty candidates selected, a Scheduled Caste candidate selected on merit stands at S. No.18 in the select list, whereas another Scheduled Caste candidate selected under and only because of the reserved quota stands at S. No.33. But when the occasion for appointment arises, the Scheduled Caste candidate at Sl.

No.33 will be be appointed against the first roster-point, whereas the Scheduled Caste candidate at S. No.18, being a general candidate has to wait for his turn. This, the learned counsel says, amounts, in effect, to punishing the Scheduled Caste candidate at S. No.18 for his merit. Because he ws meritorious, he was selected in general gcategory and is treated as a general candidate. He suffers all the disadvantages any other general candidate suffers while another Scheduled Caste candidate, far less meritorieous than him and who was selected only by virtue of rule of reservation, steals a march over him in the matter of initial appointment and in promotion after promotion thereafter. This is undoubtedly a piquant situation and may have to be appropriately rectified as and when the occasion arises. It is not pointed out that any such situation has arisen in the appeals before us. It is probable that many such situations may arise which cannot be foretold now.

According to the general category candidates concerned herein, of course, the rule of reservation/roster has already given rise to many distortions. According to them, the representation of the reserved categories in Guard Grade `A’ Special has reached forty percent as against the prescribed 22.5 percent. It is not possible for us to say, on the material before us, how and why the said situation has come about. It may be partly because the rule now enunciated in R.K. Sabharwal was not there and was not being followed. It may also be that such a result has been brought about by a combined operation of the factors mentioned in (i) and (ii) above. The fact remains that the situation – assuming that it is what is described by the general candidates – cannot be rectified with retrospective effect now. The Constitution Bench in R.K. Sabharwal too has directed that the rule enunciated therein shall have only prospective operation. So far as the present appeals are concerned, it is sufficient to direct that the Railway authorities shall hereinafter follows Rules (i), (ii) and (iii) [stated in Para No.28] with effect from the date of judgment in R.K. Sabharwal, i.e., February 10, 1995.

33. Learned counsel have sought to bring to our notice individual facts of some of the appeals before us but we do not propose to enter into those facts or make any pronouncement thereon. The proper couse, in our considered opinion, is to send all these matters back to the Tribunal to work out the rights of individuals concerned applying the three principles aforesaid. These appeals are accordingly disposed of in the above terms and matters remanded to the respective Tribunals. Write petitions are dismissed. No costs.

SELECTION POSTS CIVIL APPEAL NO.9276 OF 1995 ARISING OUT OF S.L.P. (C) NO.18370 OF 1993:

34. Delay condoned. Leave granted.

35. This appeal arises from the judgment of Central Administrative Tribunal (Madras Bench) allowing Original Application No.869 of 1991 filed by the respondent, Sri D.

Williams. The relevant facts, drawn from the counter filed on behalf of the Railway Board and its officials before the Tribunal, are the following:

36. The cadre of Station Masters is divided into five grades. The grades and inter se percentage is as follows:

———————————————————— Sl. Category & Grade Whether selection Percentage No. or non-selection distribution of post in each grade ————————————————————

1. Asst. Station Master Recruitment/ 10% Rs.1200-2040 Selection

2. Station Master Non-Selection 70% Rs.1400-2300

3. Station Master/T.I Non-Selection/ 10% Rs.1600-2600 Recruitment

4. Dy. Station Supdt/T.I.Selection 10% Rs.2000-3200

5. Station Supdt./T.I Selection 10% of posts Rs.2375-3500 in Rs.2000-3200 ————————————————————

37. The posts of Assistant Station Masters in the scale of Rs.1200-2040/- are filled by direct recruitment through Railway Recruitment Boards to the extent of fifty percent.

The balance fifty percent is filled by promotion of departmental employees. The higher grades in the said cadre are filled by promotion from the immediately lower grde.

Twenty five percent of the posts in the scale of Rs.1600- 2600/- are, however, filled by direct recruitment of Traffic Apprentices.

38. The first respondent, Sri Williams (petitioner in the original application before the Tribunal) was promoted to the post of Deputy Station Superintendent/Traffic Inspector in the scale of Rs.2000-3200/- on December 30, 1989.

Actually, he was initially appointed as a Signaller in the scale of Rs.60-150/-. Over the years, he earned promotions one after the other. In the scale of Rs.130-240/-, he was senior to Respondent Nos.4 to 10 in the original application (they are not impleaded as respondents in this appeal), all of whom belong to Scheduled Castes/Scheduled Tribes. Because of rule of reservation and the manner in which it was implemented, the said Scheduled Castes/Schedule Tribes candidates were promoted to the higher categories soosner.

They came to be promoted to the post of Deputy Station Superintendent/Traffic Inspector in the scale of Rs.2000- 3200/- far earlier to Sri Williams, i.e., on January 1, 1984 or earlier. On that basis, the said Scheduled Castes/Scheduled Tribes candidates were being treated as seniors to Sri Williams who is, of course, a general candidate.

39. The posts of Station Superintendent/Traffic Inspector in the scale of Rs.2375-3500/- are controlled by and dealt with at Head Quarter’s level. They are filled on “All Railway” basis by a process of selection (which comprises of viva-voce only) from among the Deputy Station Superintendents/Traffic Inspectors in the scale of Rs.2000- 3200/-.

40. Eleven vacancies arose in the scale of Rs.2375-3500/-.

According to rules, three candidates have to be considered for every vacancy. Accordingly, a list of thirty three senior-most candidates in the sacle of Rs.2000-3200/- was prepared on the basis of their respective dates of entry in the said grade. They were `alerted’ to be ready to appear for the interview by a letter dated July 12, 1991. All the thirty three senior-most employees so alerted belong to Scheduled Castes/Scheduled Tribes. Sri Williams was not among the thery three. It is then that Sri Williams approached the Tribunal praying for setting aside the alert notice dated July 12, 1991, to revise the seniority list of all the grades in the Station Masters’ category protecting the seniority of general candidates and for a further declaration that rule of reservation cannot be applied against vacancies. He sought a further declaration that the said rule of reservation is confined to recruitment to the scale of Rs.1200-2040/- alone – i.e., to the lowest grade in the cadre – and not to higher grades.

41. The Tribunal allowed the original application filed by Sri Williams following its earlier decision in Original Application No.85 of 1989. The Tribunal declared that for the purpose of promotion under the general quota, seniority of the Scheduled Castes/Scheduled Tribes candidates should not be determined on the basis of the date of their actual promotion but on the basis of the date on which they would have been promoted in due course if the rule of reservation were not applied. The Tribunal, however, declared that the seniority in the grade of Rs.1600-2600/- shall not be disturbed because the applicant had not approached the Tribunal in time to challenge the seniority in that scale.

The relief granted by the Tribunal is in the following terms:

“In the result, we allow the application and pass the following orders:- We direct the respondents to revise the seniority of the applicants and respondents in the scale of Rs.2000-3200 taking into account for the applicant his date of actual promotion and for the respondents 4 to 10 the date on which they would have been granted promotion in that grade but for the preferential treatment based on reservation.

Promotion shall be made according to a selection based on the revised list.”

42. The learned Additional Solicitor General appearing for the appellants (Union of India and the Railways) challenged the correctness of the decision of that Tribunal on the ground that it has evolved a principle of seniority not recognised by any rule or circular orders of the Railway Board and is unsustainable in any event. He submitted, relying upon the decision in Karam Chand v. Haryana State Electricity Board (1989 Suppl.(1) S.C.C.342) that the date of promotion to a particular grade or category determines the seniority in that grade or category. Inasmuch as the said thirty three candidates were alerted (Called for) on the basis of their seniority for interview (for selection to eleven posts in the grade of Rs.2375-3500/-) no valid grievance can be made by any one to such a course.

43. Sri S. Murlidhar, learned counsel for Sri D. Williams submits that this is a demonstrable case of injustice being done to general candidates by applying not only the rule of reservation at every stage of promotion but also because the rule of seniority enunciated by the Railway Board in its several circulars was not being followed by the concerned authorities. He submits that it is for the Railways to explain how the situation has come about where all the thirty three candidates being considered for eleven vacancies happen to belong exclusively to Scheduled Castes/Scheduled Tribes categories. He subsmits that Sri Williams ws admittedly a senior to Respondent Nos.4 to 10 (in the original application, i.e., Scheduled Castes/Scheduled Tribes candidates) in the grade of Rs.130- 240/- but then the said Scheduled Castes/Scheduled Tribes candidates obtained rapid and preferential promotions to next higher grades, viz., Rs.330-560/-, Rs.425-640/-, Rs.455-700/-, Rs.1600-2600/- and then to the grade of Rs.2000-3200/-. They reached the grade of Rs.2000-3200/- more than five years earlier to Sri Williams who was their senior in the lower category of Rs.130-240/- The result of faulty implementation of rule of reservation and rule of seniority is that all the top grades have come to be occupied exclusively by the reserved category members, a situation, which he characterises as a total negation of the Rule of Equality underlying Articles 16(1), 16(4) and 14. He emphasises the fact that the Railways have not explained in their counter as to how the above situation has come about except stating baldly that since the Scheduled Castes/Scheduled Tribes candidates were seniors to Sri Williams in the grade of Rs.2000-3200/-, they were rightly alerted for interview.

44. It is true that this case presents a rather poiiignant turn of events. Of the thirty three candidates being considered for eleven vacancies, all are Scheduled Castes/Scheduled Tribes candidates. Not a single candidate among them belongs to general category. The learned counsel for the respondent is justified in complaining that appellants have failed to explain how such a situation has come about. Not only the juniors are stealing a march over their seniors but the march is so rapid that not only erstwhile compatriots are left far behind but even the persons who were in the higher categories at the time of entry of Scheduled Castes/Scheduled Tribes candidates in the service have also been left behind. Such a configuration could not certainly have been intended by the framers of the Constitution or the framers of the rules of reservation. In the absence of any explanation from the authorities, the best we can do is to ascribe it as faulty implementation of the rule of reservation. In other words, not only have the Railways not observed the principle that the reservation must be vis-a-vis posts and not vis-a-vis vacancies but they had also not kept in mind the rule of seniority in the promotion posts enunciated in the Railway Board’s circulars referred to supra. Yet another principle which the authorities appeared to have not observed in practice is that once the percentage reserved for a particular reserved category is satisfied in that service category or grade (unit of appointment) the rule of reservation and the roster should no longer be followed. Because of the breach of these three rules, it appears, the unusual situation complained of by the general candidates has come to pass. The learned counsel for general candidates is right that such a situation is bound to lead to acute heart-burning among the general candidates which is not conducive to the efficiency of administration. Be that as it may, the question is can the said situation be rectified. Probably not, until we direct all the promotions to be reviewed and re-done. This may not be advisable at this distance of time. The enormity of the exercise should deter any one from launching upon such a course. It is evidently for this reason that the Constitution Bench has directed in R.K. Sabharwal that the rule affirmed by them should be applied only prospectively.

There is yet another circumstance: the Scheduled Castes/Scheduled Tribes candidates cannot be barred from competing for general posts. We are constrained to remark that it is the application of rule of reservation in the matter of promotions -which entitles a reserved category candidate to avail of the benefit of reservation any number of times which is mainly responsible for such a situation.

45. While referring to the Railway Board’s circulars/letters in civil appeals No.9272/95 (arising from S.L.P.(C) No.6468 of 1987 and batch), we had referred to the Railway Boards circular/letter dated January 19, 1972 dealing with promotion to selection posts. (Para-3 of the said letter is in the same terms as Para-4 of the Railway Board’s circular/letter dated August 31, 1982 referred to supra.) The said Para-3 reads: “(3) The seniority of candidates belonging to Scheduled Cates and Scheduled Tribes vis-a-vis others will continue to be determined as at present, i.e., according to the panel position in the case of categories where training is not provided and in accordance with the merit position in the examination where training is provided.” But inasmuch as the post of Station Superintendent/T.I. in the scale of Rs.2375-3500/- is a selection post, the panel referred to in the said circulars/letters would mean the panel prepared at the time of making selections for promotion to the said post (Rs.2375-3500/-) – and not the panel/select list prepared at the time of entry into the initial grade, viz., Assistant Station Master (Rs.1200-2-40/-). It also means that members in one panel take precedence over the members in the next panel. The application of the rule of seniority referred to in the said circular/letter – and other circulars/letters referred to supra most of which do not make any distinction between selection and non-selection posts – has to be subject to the said limitation.

46. It may be noticed that of the five grades in the Station Masters’ category, two are non-selection posts while the remaining three are selection posts. While in the case of non-selection posts the rule enunciated in the main opinion (Virpal Singh Chauhan) would be applicable, in the case of selection posts, the rule explained herein has to be followed. We may clarify that Rules (i) and (ii) in Para 28 of Virpal Singh Chauhan apply to both selection and non- selection posts. Rule (iii) also applies to both but subject to the above rider. As explained in the main opinion, while there is no question of a “panel” being prepared at the time of promotion to non-selection posts, a panel has to be prepared for promotion to selection posts.

47. This appeal is accordingly allowed and the matter remanded to the Tribunal with a direction to dispose of the original application afresh in the light of the principles enunciated herein. No costs.

CIVIL APPEAL NO.9275 OF 1995 —————————- ARISING OUT OF S.L.P.(C) NO.4102 OF 1994:

—————————————– 48. Delay condoned. Leave granted.

49. The respondent [petitioner before the Central Administrative Tribunal (Allahabad Bench), Sri Mohd. Sabir, joined the Railways as an Office Clerk on December 20, 1957.

He was promoted as Head Clerk and then as an Assistant Superintendent. His promotion to the post of Assistant Superintendent was on March 12, 1985. The next promotion is to the post of Superintendent. He approached the Tribunal complaining that when two vacancies arose in the category of Superintendents, the Railway Authorities called certain Scheduled Castes/Scheduled Tribes candidates for interview in preference to him though they are far juniors to him. He gave three instances, viz., (1) Sri A.P. Pramanik, who joined the service twenty years after him and who was promoted as Assistant Superintendent only on February 22, 1988. (2) Sri Kamal Kishore, who was initially appointed as Class IV employee but who is being treated as senior to the petitioner and (3) Sri Amrendra Kumar Das, who was appointed as an Office Clerk twenty two years after his appointment and who came to be promoted as Assistant Superintendent on February 25, 1986. The grievance of Sri Mohd. Sabir is this:

the total sanctioned strength of the category of Superintendents (Grade Rs.2000-3200/- RPS) is thirteen.

There are three vacancies. Of the remaining ten, only two are general candidates and the remaining eight belong to Scheduled Castes. Inspite of the same, the candidates now being considered for promotion are again Scheduled Castes candidates which is likely to result in an almost total reservation in the said category in favour of the Scheduled Castes/Scheduled Tribes candidates. The case of the appellants (respondents in the original application) is that they are considering the senior most candidates for the vacancies arising in the category of Superintendents and, therefore, no objection can be taken with the said course by any aone.

50. The Tribunal has allowed the original application in the following terms:

“It appears that some mathematical mistake occurred on the part of the department in making the promotion and deciding the seniority. According to learned counsel in view of Vir Pal Singh Chauhan’s case these candidates are to be reverted. Whether they are to be reverted or not that is the matter for the respondents to decide all such observations which have been made in Vir Pal Singh’s case, but the respondents are directed to promote the members of the general community to the extent they are entitled to by adhering to the seniority. Accordingly, since the matter is not decided finally by the Hon’ble Supreme Court, However those persons who have already been promoted, keep them for the post of Supdt. and will adjust the seniority list accordingly in accordance with Vir Pal Singh’s case.

Let all these be done within the period of 3 months from the date of communication of this order. No order as to the costs.”

51. This appeal is liable to be dismissed applying the principle enunciated in R.K. Sabharwal. It is evident that out of the cadre-strength of thirteen, there were three vacancies on the date of filing of the original application before the Tribunal and of the remaining ten posts, only two were occupied by the general candidates and the remaining eight were occupied by the members of Scheduled Castes.

Since the representation of Scheduled Castes is already far beyond their quota, no further Scheduled Castes candidates could have been considered for the remaining three vacancies. This means that the Scheduled Castes candidates can be considered only as and along with general candidates but not as members belonging to a reserved category. The appeal is accordingly dismissed with the aforesaid clarification.

CIVIL APPEAL NO.9274 OF 1995 —————————- ARISING OUT OF S.L.P.(C) NO.6924 OF 1988:

—————————————– 52. Delay condoned. Leave granted.

53. This matter pertains to promotion to the posts of Office Superintendents Grade-I, Office Superintendent Grade- II and Head Clerk. The original application was filed by three candidates belonging to general category. Their grievance was that the representation of Scheduled Castes/Scheduled Tribes candidates has already exceeded the percentage reserved for them and inspite of that the Scheduled Castes candidates are again being considered for the vacancies arising in the said categories. By way of illustration, they pointed out, the sanctioned strength of the category of Head Clerks is six. Four are filled up and there are two vacancies. Out of the four posts already filled up, two are held by general category candidates and two by the members of Scheduled Castes. The claim of the original petitioners (respondents in this appeal), which has been upheld by the Calcutta Tribunal, is that the remaining two vacancies should go only to general candidates. Similar direction has been made with respect to other two categories as well. The Tribunal further directed that the rule of reservation must be applied with reference to posts and not with reference to vacancies. The main contention of the Union of India and the Railway Authorities in this appeal is that the rule of reservation in favour of Scheduled Castes/Scheduled Tribes should be applied to vacancies and not to total number of posts in the cadre. It is submitted that the Tribunal was in error in holding that the rule of reservation should be so applied as to ensure that the posts held by Scheduled Castes/Scheduled Tribes do not exceed the prescribed percentage. It is submitted that this was never the intention of the Constitution or the rule of reservation.

54. The only contention urged by the appellants herein is concluded against the appellants by the decision of this Court in R.K. Sabharwal, referred to hereinbefore. Following the said decision this appeal is dismissed with the clarification that the members of Scheduled Castes/Scheduled Tribes can also compete as general candidates. The appellant shall follow and apply the said decision. No costs.

Before parting with these appeals, we feel obliged to reiterate the principle affirmed in Indra Sawhney that providing reservation in promotion is not warranted by Article 16(4). The facts of these cases illustrate and demonstrate the correctness of the said holding. They also bring home the intractable problems that arise from such provision – problems that defy solutions. No more need we say on this aspect. The decision in Indra Sawhney speaks for itself.

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IN THE SUPREME COURT OF INDIA
SHRI BODHISATTWA GAUTAM …PETITIONER
Vs.
MISS SUBHRA CHAKRABORTY …RESPONDENT
DATE OF JUDGMENT: 15/12/1995
BENCH: AHMAD SAGHIR S. (J) KULDIP SINGH (J)
CITATION:
1996 AIR 922 1996 SCC (1) 490
JT 1995 (9) 509 1995 SCALE (7)228

J U D G M E N T

S. SAGHIR AHMAD. J.

Subhra Chakraborty (alias – Kalpana) who was a student of the Baptist College, Kohima where the opposite party, Shri Bodhisattwa Gautam was a lecturer, filed a complaint in the Court of the Judicial Magistrate, Ist Class, Kohima, Nagaland, alleging, inter alia, as under :- “3. That, your complainant begs to state that in April 1989 the accused person entered into Baptist College, Kohima as a Lecturer thereof and the complainant was a student of the said College at that relevant period.

4. That, the accused person was in said Service in Kohima from April 1989 till he resigned the Service on 27th Jan, 1995 and was residing in a rented house in Kenezou Valley, Kohima owned by Dr. Zakiebatsu Angam.

5. That, on 6th Feb. 1995 the accused person left for silchar and presently residing in his uncle’s (Shri Amiya Kanta Chakraborty) house in Premtala, Silchar-4, Dist. Cachar, in the State of Assam and assumed his service as Lecturer in Cachar College (Commerce Dept.) Silchar – 4 (Assam).

6. That, on the 10th June, 1989 for the 1st time the accused visited the complainant’s residence in Kohima and thereafter often he used to visit complainant’s residence, as a teacher he was respected by the complainant as well as all the members including her parents. In course of such visits once in the month of Nov. 1989 the accused voluntarily told your complainant that he was already in her love. Thus there developed a love affair between themselves since 1989.

7. That, the complainant most humbly states further that with malafide intention to practise deception on the complainant, the accused gave false assurance of marriage to the innocent complainant and thereby the accused dishonestly procured sexual intercourse with the complainant. The accused often use to induce the complainant to have biological contact with him, but whenever he was approached by the complainant to complete the marriage ceremony, the accused very tactfully used to defer the marriage sometimes saying that he was waiting for his parents formal consent and sometimes saying to cooperate him till he got a Govt. Service.

8. That, in course of continuation of the affairs between the complainant and the accused, the complainant got pregnant twice, once in the month of September, 1993 and secondly on in the month of April 1994 out of her co- habitation with the accused person.

9. That, the complainant being worried about her said pregnancy created pressure upon the accused to marry her immediately and to save her from being ruined, but the accused on the plea of his parents permission went on deferring the marriage, as a result there was a quarrel in between the complainant and the accused, where after the accused lastly opined for secret marriage to avoid social gathering as he was waiting for his parents permission. The complainant being pregnant was placed in a very awkward position, as such, agreed to said secret marriage, accordingly the accused on the 20th September, 1993, married the complainant in front of the God he Worships in his residence in Kenozou Valley, Kohima by putting Vermilion (sindur) on the complainant’s forehead and accepted the complainant as his lawful wife and thus the complainant was consorted and consoled. But the complainant faced further corporal punishment, as the accused kept on insisting the complainant to be refrained from giving birth to the baby and was pressurizing her to undergo operation/abortion despite her refusal for the same. The accused with fraudulent intention to deceive the complainant proposed the said abortion on the plea that birth of the baby would be a barrier to convince his parents to accept the complainant as their daughter-in-law and such event would lead the complainant to a path of unhappiness. The complainant being an innocent lady failed to understand the accused’s wicked and mischievous plan whereby the accused succeeded and dishonestly motivated the complainant to undergo operation in the Putonou Clinic, Kohima and aborted in October’ 93.

10. That, the said Ceremony of giving Sindur (Vermilion) on the complainant’s forehead by the accused in front of the God made the complainant to believe that she was lawfully married wife of the accused and with such believe she in good faith completely submitted herself to the accused as an ideal wife and never disbelieved the accused. The complainant even did not have any doubt as to why the accused insisted her to keep their marriage secret. The complainant was forced to undergo abortion even second time in the month of April’ 94 in the CAREWELL NURSING HOME at Dimapur with the pretext that if the complainant gave birth to any child before the accused could convince his parents she would never be accepted by Bodhisatta’s parents and relatives further their marriage being a secret one, the developed stage of the complainant would hamper the dignity of her own parents and other paternal relations irreparably and thus taking the privilege of complainant innocency the accused has exploited the complainant in a very pre-planned way.

The accused is so wicked that he even furnished a false name in the said Nursing Home and signed the consent Register/Paper as BIKASH GAUTAM concealing his real name BODHISATTA GAUTAM which fact was unknown to the innocent complainant until recently and came to know only in the 2nd week of February, 1995 when the complainant went to obtain a certified copy of the abortion consent paper of the accused.

A copy of said consent paper signed by the accused in annexed hereto and marked as Annexure-1.

11. That, believing her self to be the lawful wife of the accused, the complainant like a dumb shouldered up all those hardship since 1989. On hearing the massage that the accused would go to Silchar, the complainant on 4th Feb.’95 went down to Dimapur and visited the accused to take the complainant permanently with the accused to Silchar as he was going to Silchar to join as a Lecturer in a Government College named CACHAR COLLEGE which both of them actually waited for. But the wicked accused forgetting the consequences of his all fraudulent activities in total disregards of their marriage and their relationship refused to accept the complainant as his wife and abandoned the complainant asking her to forget all her dream. Be it further submitted that the accused’s friends namely (1) Shri Subrata Datta, (2) Shri Ranadhir Deb (3) Shri Prasanta Dey and (4) Shri Pradeep Paul of Dimapur tried a lot to convince the accused and not to abandon the complainant in such a cruel manner, as he had already married the complainant and cohabited years together, but all efforts ended in futility as the accused in reply said that the giving of vermilion on complainant’s forehead was pretext of marriage to over come the past situations and not at all a complete marriage and the accused repeatedly said that he had no option, but to abandon the complainant as his parents are not agreeable to accept the complainant as their daughter-in-law.

12. That, the accused not only induced the complainant and cohabited with her, giving her a false assurance of marriage but also fraudulently gave through certain marriage ceremony with knowledge that was not a valid marriage and thereby dishonestly made the complaint to believe that she was a lawfully married wife of the accused. The accused even committed the offence of miscarriage by compelling the complainant to undergo abortion twice against her free will. The way the accused exploited the complainant and abandoned her is nothing but an act of grave cruelty as the same has caused serious injury and danger to the complainant’s health both mentally and physically, as such, the accused above named has committed Criminal offences punishable U/S 312/420/493/496/498-A of Indian Penal Code.” This complaint was registered as Criminal Case No. 1/95 under Sections 312/420/493/496/498-A, Indian Penal Code and Bodhisattwa Gautam was summoned but he, in the meantime, filed a petition in the Gauhati High Court under Section 482 of the Code of Criminal Procedure for quashing of the complaint and the proceedings initiated on its basis, on the ground that the allegations, taken at their face-value, do not make out any case against him. But the High Court by its judgment and order dated May 12, 1995.dismissed the petition compelling Bodhisattwa Gautam to approach this Court by way of Special Leave Petition. Special Leave Petition (Criminal) No. 2675/95 was filed and was dismissed by us by our order dated October 20, 1995, in which we stated as under :- “We see no ground to interfere with the impugned judgment of the High Court.

We dismiss the special leave petition.

Having done so, we further take suo motu notice to the facts of this case as narrated in the complainant which has been read before us. We issue notice to the petitioner as to why he should not be asked to pay reasonable maintenance per month to the respondent during the pendency of the prosecution proceedings against him. Mr. A. Bhattacharjee accepts notice.

List it on 1.12.1995.

Petitioner in person be present in Court on the next date of hearing.

Notice be also sent to the respondent along with the copy of this order.” Pursuant to the above order, Shri Bodhisattwa Gautam put in appearance and filed an affidavit in reply in which he denied the allegation made against him in the complaint and stated that the complaint was filed only to harass and humiliate him and, therefore, there was no occasion to direct him to pay any amount as maintenance to the respondent. He also indicated that although he had taken up service in another College, namely, Cachar College, his services had since been terminated. Para 4 of his affidavit in which these facts have been stated is reproduced below :- “4. That I say that I am not in any employment now and I am an unemployed person after my services as a Lecturer in Cachar College, Silchar, has been terminated with effect from 16.7.1995 by a resolution of the Governing Body of the said College passed in a meeting held on 14.9.1995. A true copy of the proceedings of the said meeting of the Governing Body of Cachar College, Silchar held on 14.9.1995 is annexed hereto as Annexure – A1.

The relevant resolution No. 5(A) of the said meeting of the Governing Body reads as follows :- “Resolution No. 5(A):

The Principal placed the leave petitions of Shri B.Gautam, Lecturer, Deptt. of Commerce, adding that Shri Gautam resumed his duties in the College on the re-opening day of the College after summer vacation, i.e., on 15th of July, 1995 and at first he sought leave for twenty one days and the for three years at a stretch.

The Principal also stated that Shri B.

Gautam was appointed against a lien vacancy for one year vice Dr. A.

Mazumdar, the one-year lien having expired on 9.9.1995.

The matter was thoroughly discussed and it was unanimously resolved that since Shri B. Gautam’s term of appointment against lien vacancy had expired on 9.9.1995 and his service was not confirmed, (he did not complete even one full year’s service), he cannot be granted three years’ leave at a stretch as prayed for by him.

Also resolved that as Shri B. Gautam has been absent from the College from 16th of July, 1995 and also the term of his appointment expired on 9.9.1995, Shri Gautam’s service as lecturer in the Deptt. of Commerce in Cachar College, Silchar be treated as having been terminated w.e.f. 16th July, 1995.

The Principal be requested to forward the above resolution to the D.P.I.

Assam, for his kind approval of the termination of the services of Sri B.

Gautam w.e.f. 16.7.1995.” This resolution along with other resolutions passed in the said meeting held on 14.9.1995 were placed before the meeting of the Governing Body held subsequently on 11.11.1995 for confirmation. A true copy of the notice of meeting to be held on 11.11.1995 containing the agenda of the meeting is annexed hereto as Annexure – A2.

Now I have been reliably informed that in the meeting of the Governing Body on 11.11.1995, the aforesaid resolution terminating my service has been confirmed. I further state that I have not received any payment towards my salary since July, 1995 and after the termination of my service with effect from 16.7.1995 no question of my receiving any salary arises.

In the circumstances I respectfully submit that no question of burdening me with the liability of paying maintenance to the respondent can arise.” The facts set out in the complaint lodged against Bodhisattwa Gautam indicate that there was initially a period of romance during which Bodhisattwa Gautam used to visit the house of Subhra Chakraborty and on one occasion, he told her that he was in love with her and ultimately succeeded, on the basis of his assurances to marry her, in developing sexual relationship with her with the tragic result that Subhra Chakraborty became pregnant. While in that state, she persuaded Gautam to marry her, but he, deferred the proposal on the plea that he had to take his parents’ permission. He, however, agreed to marry her secretly. Consequently, on 20th September, 1993, Bodhisattwa Gautam took her before the God he worshiped and put Vermilion on her forehead and accepted her as his lawful wife. In spite of the secret marriage, he, through his insistence, succeeded in motivating her for an abortion which took place in a clinic at Kohima in October, 1993.

Subhra Chakraborty became pregnant second time and at the instance of Bodhisattwa Gautam she had to abort again in April, 1994 in the Carewell Nursing Home at Dimapur where Gautam signed the consent paper and deliberately mentioned himself as Bikash Gautam.

The Gauhati High Court, as already pointed out above, refused to quash the proceeding in Criminal Case No 1/95 pending in the Court of the Judicial Magistrate, Ist Class, Kohima and this Court has upheld the judgment of the Gauhati High Court. The question is whether any further order can be passed in the case and Gautam can be compelled to pay maintenance to Subhra Chakraborty during the pendency of the Criminal Case for which Show Cause Notice has been issued to him? This Court, as the highest Court of the country, has a variety of jurisdiction. Under Article 32 of the Constitution, it has the jurisdiction to enforce the Fundamental Rights guaranteed by the Constitution by issuing writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo-Warranto and Certiorari. Fundamental Rights can be enforced even against private bodies and individuals. Even the right to approach the Supreme Court for the enforcement of the Fundamental Rights under Article 32 itself is a Fundamental Right. The jurisdiction enjoyed by this Court under Article 32 is very wide as this Court, while considering a petition for the enforcement of any of the Fundamental Rights guaranteed in Part III of the Constitution, can declare an Act to be ultra vires or beyond the competence of the legislature and has also the power to award compensation for the violation of the Fundamental Rights. See : Rudul Sah vs. State of Bihar : [1983] INSC 87; AIR 1983 SC 1086; Peoples’ Union for Democratic Rights (through its Secretary & Anr.) vs. Police Commissioner, Delhi Police HQs.

& Anr. : (1989) 4 SCC 730.

For the exercise of this jurisdiction, it is not necessary that the person who is the victim of violation of his fundamental right should personally approach the Court as the Court can itself take cognizance of the matter and proceed suo motu or on a petition of any public spirited individual. This Court through its various decisions, has already given new dimensions, meaning and purpose to many of the fundamental rights especially the Right to Freedom and Liberty and Right to Life. The Directive Principles of the State Policy, have also been raised by this Court from their static and unenforceable concept to a level as high as that of the fundamental rights.

This Court has, innumerable times, declared that “Right to Life” does not merely mean animal existence but means something more, namely, the right to live with human dignity. (See : Francis Coralie Mullin vs. The Administrator, Union Territory of Delhi & Ors., [1981] INSC 12; AIR 1981 SC 746; State of Maharashtra vs. Chandrabhan[1983] INSC 76; , AIR 1983 SC 803;

Olga Tellis & Ors. vs. Bombay Municipal Corporation & Ors., [1985] INSC 155; AIR 1986 SC 180; and Delhi Transport Corporation vs. D.T.C.

Mazdoor Congress & Ors., AIR 1991 SC 101). Right to Life would, therefore, include all those aspects of life which go to make a life meaningful, complete and worth-living.

Unfortunately, a woman, in our country, belongs to a class or group of society who are in a disadvantaged position on account of several social barriers and impediments and have, therefore, been the victim of tyranny at the hands of men with whom they, fortunately, under the Constitution enjoy equal status. Women also have the right to life and liberty; they also have the right to be respected and treated as equal citizens. Their honour and dignity cannot be touched or violated. They also have the right to lead an honourable and peaceful life. Women, in them, have many personalities combined. They are Mother, Daughter, Sister and Wife and not play things for centre spreads in various magazines, periodicals or newspapers nor can they be exploited for obscene purposes. They must have the liberty, the freedom and, of course, independence to live the roles assigned to them by Nature so that the society may flourish as they alone have the talents and capacity to shape the destiny and character of men anywhere and in every part of the world.

Rape is thus not only a crime against the person of a woman (victim), it is a crime against the entire society. It destroys the entire psychology of a woman and pushed her into deep emotional crises. It is only by her sheer will power that she rehabilitates herself in the society which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is also violative of the victim’s most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21.

To many feminists and psychiatrists, rape is less a sexual offence than an act of aggression aimed at degrating and humiliating women. The rape laws do not, unfortunately, take care of the social aspect of the matter and are inept in many respects.

It is said that present days’ law relating to rape have their origin in 1736 in Britain, when Sir Mathew Hale in his Historia Placitorum Cornea or, in other words, “History of the pleas of the Crown” presented common-law rape doctrines which were immediately noticed to be hostile to the interests of women as one of the requirement was to inform the jury during trial that rape charges were easy to bring but difficult to defend. Consequently, in a tide of law reforms, this requirement was removed. The rule of corroboration which was much stricter in a trial for the offence of rape than for other offences was also largely removed from law.

In India also the rule of “Corroboration of the Prosecutrix” has undergone a change through statutory amendments as also through decisions of this Court.

In State of Himachal Pradesh vs. Raghubir Singh, 1993(2) SCC 622, this Court observed as under :- “There is no legal compulsion to look for corroboration of the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate her veracity. In the present case the evidence of the prosecutrix is found to be reliable and trustworthy. No corroboration was required to be looked for, though enough was available on the record. The medical evidence provided sufficient corroboration.” In State of Karnataka vs. Mahabaleshwar Gourya Naik, AIR 1992 SC 2043 = 1992 Suppl. (3) SCC 179, the Court went to the extent of laying down that even if the victim of rape is not available to give evidence on account of her having committed suicide, the prosecution case cannot be thrown away over board. In such a case, the non-availability of the victim will not be fatal and the Court can record a conviction on the basis of the available evidence brought on record by the prosecution.

In spite of the decision of this Court that (depending upon the circumstances of the case) corroboration of the prosecutrix was not necessary, the cases continued to end in acquittal on account of mishandling of the crime by the police and the invocation of the theory of “consent” by the Courts who tried the offence. To overcome this difficulty, the legislature intervened and introduced Section 114-A in the Evidence Act by Act No. 43 of 1983 reading as under:- 114-A. Presumption as to absence of consent in certain prosecutions for rape.- In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) or sub-section (2) of Section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.” This Section enables a court to raise a presumption that the woman who was the victim of rape had not consented and that the offence was committed against her will. The situation, however, has hardly improved. Conviction rates for rape are still lower than any other major crime and the woman continue to argue even today that in rape cases the victimized women, rather than the rapists, were put on trial. A large number of women still fail to report rapes to the police because they fear embarrassing and insensitive treatment by the doctors, the law enforcement personnel and/or the cross-examining defence attorneys. The fear has to be allayed from the minds of women so that if and when this crime is committed, the victim may promptly report the matter to the police and on a chargesheet being submitted, the trial may proceed speedily without causing any embarrassment to the prosecutrix who may come in the witness box without fear psychosis.

We may, at this stage, refer to a decision of this Court in Delhi Domestic Working Women’s Forum vs. Union of India, 1995 (1) SCC 14, in which Court observed as under :- “It is rather unfortunate that in recent times, there has been an increase in violence against women causing serious concern. Rape does indeed pose a series of problems for the criminal justice system. There are cries for harshest penalties, but often times such crimes eclipse the real plight of the victim.

Rape is an experience which shakes the foundations of the lives of the victims.

For many, its effect is a long-term one, impairing their capacity for personal relationships, altering their behaviour values and generating and less fears. In addition to the trauma of the rape itself, victims have had to suffer further agony during legal proceedings.” This Court further observed as under :- “The defects in the present system are :

Firstly, complaints are handled roughly and are not even such attention as is warranted. The victims, more often than not, are humiliated by the police. The victims have invariably found rape trials a traumatic experience. The experience of giving evidence in court has been negative and destructive. The victims often say, they considered the ordeal to be even worse than the rape itself. Undoubtedly, the court proceedings added to and prolonged the psychological stress they had had to suffer as a result of the rape itself.

In this background, it is necessary to indicate the broad parameters in assisting the victims of rape.

(1) The complainants of sexual assault cases should be provided with legal representation. It is important to have some one who is well-acquainted with the criminal justice system. The role of the victim’s advocate would not only be to explain to the victim the nature of the proceedings, to prepare her for the case and to assist her in the police station and in court but to provide her with guidance as to how she might obtain help of a different nature from other agencies, for example, mind counselling or medical assistance. It is important to secure continuity of assistance by ensuring that the same person who looked after the complainant’s interests in the police station represent her till the end of the case.

(2) Legal assistance will have to be provided at the police station since the victim of sexual assault might very well be in a distressed state upon arrival at the police station, the guidance and support of a lawyer at this stage and whilst she was being questioned would be of great assistance to her.

(3) The police should be under a duty to inform the victim of her right to representation before any questions were asked of her and that the police report should state that the victim was so informed.

(4) A list of advocates willing to act in these cases should be kept at the police station for victims who did not have a particular lawyer in mind or whose own lawyer was unavailable.

(5) The advocate shall be appointed by the court, upon application by the police at the earliest convenient movement, but in order to ensure that victims were questioned without undue delay, advocates would be authorised to act at the police station before leave of the court was sought or obtained.

(6) In all rape trials anonymity of the victims must be maintained, as far as necessary.

(7) It is necessary, having regard to the Directive Principles contained under Article 38(1) of the Constitution of India to set up Criminal Injuries Compensation Board. Rape victims frequently incur substantial financial loss. Some, for example, are too dramatized to continue in employment.

(8) Compensation for victims shall be awarded by the court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of the child but if this occurred as a result of the rape.

In the present situation, the third respondent will have to evolve such scheme as to wipe out the fears of such unfortunate victims. Such a scheme shall be prepared within six months from the date of this judgment. Thereupon, the Union of India, will examine the same and shall take necessary steps for the implementation of the scheme at the earliest.” This decision recognises the right of the victim for compensation by providing that it shall be awarded by the Court on conviction of the offender subject to the finalisation of Scheme by the Central Government. If the Court trying an offence of rape has jurisdiction to award the compensation at the final stage, there is no reason to deny to the Court the right to award interim compensation which should also be provided in the Scheme. On the basis of principles set out in the aforesaid decision in Delhi Domestic Working Women’s Forum, the jurisdiction to pay interim compensation shall be treated to be part of the over all jurisdiction of the Courts trying the offences of rape which, as pointed out above is an offence against basic human rights as also the Fundamental Right of Personal Liberty and Life.

Apart from the above, this Court has the inherent jurisdiction to pass any order it consists fit and proper in the interest of justice or to do complete justice between the parties.

Having regard to the facts and circumstances of the present case in which there is a serious allegation that Bodhisattwa Gautam had married Subhra Chakraborty before the God he worshiped by putting Varmilion on her forehead and accepting her as his wife and also having impregnated her twice resulting in abortion on both the occasions, we, on being prima-facie satisfied, dispose of this matter by providing that Bodhisattwa Gautam shall pay to Subhra Chakraborty a sum of Rs. 1,000/- every month as interim compensation during the pendency of Criminal Case No. 1/95 in the court of Judicial Magistrate, 1st Class, Kohima, Nagaland. He shall also be liable to pay arrears of compensation at the same rate from the date on which the complaint was filed till this date. We may further observe that whatever has been said in this Judgment shall not, in any way, affect or prejudice the Magistrate from deciding the complaint on merits on the basis of the evidence as may be tendered before it and in accordance with law.

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IN THE SUPREME COURT OF INDIA
SMT. SARLA MUDGAL, PRESIDENT, KALYANI & ORS. …PETITIONER
Vs.
UNION OF INDIA & ORS. …RESPONDENT
DATE OF JUDGMENT: 10/05/1995
BENCH: KULDIP SINGH (J) SAHAI, R.M. (J)
CITATION:
1995 AIR 1531 1995 SCC (3) 635
JT 1995 (4) 331 1995 SCALE (3)286

JUDGMENT

THE 10TH DAY OF MAY, 1995

Present:

Hon’ble Mr. Justice Kuldip Singh Hon’ble Mr. Justice R.M. Sahai Mr. D.N. Diwedi, Additional Solicitor General, Mr. V.C. Mahajan, Mr. Shankar Ghosh, Mr. R.K. Garg, Sr.

Advs., Ms. S. Janani, Mr. P. Parmeswaran, Mr. R.P. Srivastava, Ms. A. Subhashini, (Ms. Janki Ramachandran, Mr. K.J. John,) Advs. (N.P.), Mr. Shakeel Ahmed Syed, Advs. with them for the appearing parties.

The following Judgments/Order of the Court were delivered:

Smt. Sarla Mudgal, President, Kalyani and Ors.

Versus.

Union of India & Ors.

(W.P.(C) No.347/90, W.P. (C) No.509/92 and W.P. (C) No.424/92)

Kuldip Singh, J.

“The State shall endeavour to secure for the citizens a uniform civil code through-out the territory of India” is an unequivocal mandate under Article 44 of the Constitution of India which seeks to introduce a uniform personal law – a decisive step towards national consolidation. Pandit Jawahar Lal Nehru, while defending the introduction of the Hindu Code Bill instead of a uniform civil code, in the Parliament in 1954, said “I do not think that at the present moment the time is ripe in India for me to try to push it through”. It appears that even 41 years thereafter, the Rulers of the day are not in a mood to retrieve Article 44 from the cold storage where it is lying since 1949. The Governments – which have come and gone – have so far failed to make any effort towards “unified personal law for all Indians”. The reasons are too obvious to be stated. The utmost that has been done is to codify the Hindu law in the form of the Hindu Marriage Act, 1955. The Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956 which have replaced the traditional Hindu law based on different schools of thought and scriptural laws into one unified code. When more than 80% of the citizens have already been brought under the codified personal law there is no justification whatsoever to keep in abeyance, any more, the introduction of “uniform civil code” for all citizens in the territory of India.

The questions for our consideration are whether a Hindu husband, married under Hindu law, by embracing Islam, can solemnise second marriage? Whether such a marriage without having the first marriage dissolved under law, would be a valid marriage qua the first wife who continue to be Hindu? Whether the apostate husband would be quilty of the offence under Section 494 of the Indian Penal Code (IPC)? These are four petitions under Article 32 of the Constitution of India. There are two petitioners in Writ Petition 1079/89. Petitioner 1 is the President of “KALYANI” – a registered society – which is an organisation working for the welfare of needy-families and women in distress.

Petitioner 2, Meena Mathur was married to Jitender Mathur on February 27, 1978. Three children (two sons and a daughter) were born out of the wed-lock. In early 1988, the petitioner was shocked to learn that her husband had solemnised second marriage with one Sunita Narula @ Fathima. The marriage was solemnised after they converted themselves to Islam and adopted Muslim religion. According to the petitioner, conversion of her husband to Islam was only for the purpose of marrying Sunita and circumventing the provisions of Section 494, IPC. Jitender Mathur asserts that having embraced Islam, he can have four wives irrespective of the fact that his first wife continues to be Hindu.

Rather interestingly Sunita alias Fathima is the petitioner in Writ Petition 347 of 1990. She contends that she along with Jitender Mathur who was earlier married to Meena Mathur embraced Islam and thereafter got married. A son was born to her. She further states that after marrying her, Jitender Prasad, under the influence of her first Hindu-wife, gave an undertaking on April 28, 1988 that he had reverted back to Hinduism and had agreed to maintain his first wife and three children. Her grievance is that she continues to be Muslim, not being maintained by her husband and has no protection under either of the personal laws.

Geeta Rani, petitioner in Writ Petition 424 of 1992 was married to Pradeep Kumar according to Hindu rites on November 13, 1988. It is alleged in the petition that her husband used to maltreat her and on one occasion gave her so much beating that her jaw bone was broken. In December 1991, the petitioner learnt that Pradeep Kumar ran away with one Deepa and after conversion to Islam married her. It is stated that the conversion to Islam was only for the purpose of facilitating the second marriage.

Sushmita Ghosh is another unfortunate lady who is petitioner in Civil Writ Petition 509 of 1992. She was married to G.C. Ghosh according to Hindu rites on May 10, 1984. On April 20, 1992, the husband told her that he no longer wanted to live with her and as such she should agree to divorce by mutual consent. The petitioner was shocked and prayed that she was her legally wedded wife and wanted to live with him and as such the question of divorce did not arise. The husband finally told the petitioner that he had embraced Islam and would soon marry one Vinita Gupta. He had obtained a certificate dated June 17, 1992 from the Qazi indicating that he had embraced Islam. In the writ petition, the petitioner has further prayed that her husband be restrained from entering into second marriage with Vinita Gupta.

Marriage is the very foundation of the civilised society. The relation once formed, the law steps in and binds the parties to various obligations and liabilities thereunder. Marriage is an institution in the maintenance of which the public at large is deeply interested. It is the foundation of the family and in turn of the society without which no civilisation can exist.

Till the time we achieve the goal – uniform civil code for all the citizens of India – there is an open inducement to a Hindu husband, who wants to enter into second marriage while the first marriage is subsisting, to become a Muslim.

Since monogamy is the law for Hindus and the Muslim law permits as many as four wives in India, errand Hindu husband embraces Islam to circumvent the provisions of the Hindu law and to escape from penal consequences.

The doctrine of indissolubility of marriage, under the traditional Hindu law, did not recognise that conversion would have the effect of dissolving a Hindu marriage.

Conversion to another religion by one or both the Hindu spouses did not dissolve the marriage. It would be useful to have a look at some of the old cases on the subject. In Re Ram Kumari 1891 Calcutta 246 where a Hindu wife became convert to the Muslim faith and then married a Mohammedan, it was held that her earlier marriage with a Hindu husband was not dissolved by her conversion. She was charged and convicted of bigamy under Section 494 of the IPC. It was held that there was no authority under Hindu law for the proposition that an apostate is absolved from all civil obligations and that so far as the matrimonial bond was concerned, such view was contrary to the spirit of the Hindu law. The Madras High Court followed Ram Kumari in Budansa vs. Fatima 1914 IC 697. In Gul Mohammed v. Emperor AIR 1947 Nagpur 121 a Hindu wife was fraudulently taken away by the accused a Mohammedan who married her according to Muslim law after converting her to Islam. It was held that the conversion of the Hindu wife to Mohammedan faith did not ipso facto dissolve the marriage and she could not during the life time of her former husband enter into a valid contract of marriage. Accordingly the accused was convicted for adultery under Section 497 of the IPC.

In Nandi @ Zainab vs. The Crown (ILR 1920 Lahore 440, Nandi, the wife of the complainant, changed her religion and became a Mussalman and thereafter married a Mussalman named Rukan Din. She was charged with an offence under Section 494 of the Indian Penal Code. It was held that the mere fact of her conversion to Islam did not dissolve the marriage which could only be dissolved by a decree of court. Emperor vs.

Mt. Ruri AIR 1919 Lahore 389, was a case of Christian wife.

The Christian wife renounced Christianity and embraced Islam and then married a Mohomedan. It was held that according to the Christian marriage law, which was the law applicable to the case, the first marriage was not dissolved and therefore the subsequent marriage was bigamous.

In India there has never been a matrimonial law of general application. Apart from statute law a marriage was governed by the personal law of the parties. A marriage solemnised under a particular statute and according to personal law could not be dissolved according to another personal law, simply because one of the parties had changed his or her religion.

In Sayeda Khatoon @ A.M. Obadiah vs. M. Obadiah 49 CWN 745, Lodge, J. speaking for the court held as under:

“The parties were originally Jews bound by the Jewish personal law… The Plaintiff has since been converted to Islam and may in some respects be governed by the Mohammedan Law.. The Defendant is not governed by the Mahommedan Law.. If this were an Islamic country, where the Mahommedan Law was applied to all cases where one party was a Mahommedan, it might be that plaintiff would be entitled to the declaration prayed for. But this is not a Mahommedan country; and the Mahommedan Law is not the Law of the Land.. Now all my opinion, is it the Law of India, that when any person is converted to Islam the Mahommedan Law shall be applicable to him in all his relationships?.. I can see no reason why the Mahommedan Law should be preferred to the Jewish Law in a matrimonial dispute between a Mahommdan and a Jew particularly when the relationship, viz.: marriage, was created under the Jewish Law.. As I stated in a previous case there is no matrimonial law of general application in India. There is a Hindu Law for Hindus, a Mahommedan Law for Mahommedans, a Christian Law for Christians, and a Jewish Law for Jews.

There is no general matrimonial law regarding mixed marriages other than the statute law, and there is no suggestion that the statute law is applicable in the present case.. It may be that a marriage solemnised according to Jewish rites may be dissolved by the proper authority under Jewish Law when one of the parties renounces the Jewish Faith.

It may be that a marriage solemnised according to Jesish rites may be dissolved by the proper authority under Jewish Law when one of the parties renounces the Jewish Faith. It may be that a marriage solemnised according to Mahommedan Law may be dissolved according to the Mahommedan Law when one of the parties ceases to be a Mahommedan. But I can find no authority for the view that a marriage solemnized according to one personal law can be dissolved according to another personal law simply because one of the two parties has changed his or her religion.” Sayeda Khatoon’s case was followed with approval by Blagden, J. of the Bombay High Court in Robasa Khanum vs. Khodadad Bomanji Irani 1946 Bombay Law Reporter 864. In this case the parties were married according to Zoroastrian law. The wife became Muslim whereas the husband declined to do so. The wife claimed that her marriage stood dissolved because of her conversion to Islam. The learned Judge dismissed the suit. It would be useful to quote the following observations from the judgment:

“We have, therefore, this position – British India as a whole, is neither governed by Hindu, Mahommedan, Sikh, Parsi, Christian, Jewish or any other law except a law imposed by Great Britain under which Hindus, Mahomedans, Sikhs, Parsis, and all others, enjoy equal rights and the utmost possible freedom of religious observance, consistent in every case with the rights of other people. I have to decide this case according to the law as it is, and there seems, in principle, no adequate ground for holding that in this case Mahomedan law is applicable to a non- Mahomedan.. Do then the authorities compel me to hold that one spouse can by changing his or her religious opinions (or purporting to do so) force his or her newly acquired personal law on a party to whom it is entirely alien and who does not want it? In the name of justice, equity and good conscience, or, in more simple language, of common sense, why should this be possible? If there were no authority on the point I (personally) should have thought that so monstrous an absurdity carried its own refutation with it, so extravagant are the results that follow from it. For it is not only the question of divorce that the plaintiff’s contention affects. If it is correct, it follows that a Christian husband can embrace Islam and, the next moment, three additional wives, without even the consent of the original wife.” Against the judgment of Blagden, J. appeal was heard by a Division Bench consisting of Sir Leonard Stone, Chief Justice and Mr. Justice Chagla (as the learned Judge then was). Chagla, J. who spoke for the Bench posed the question that arose for determination as under: “what are the consequences of the plaintiff’s conversion to Islam?”. The Bench upheld the judgment of Blagden, J. and dismissed the appeal. Chagla, J. Chagla, J. elaborating the legal position held as under:- “We have here a Muslim wife according to whose personal law conversion to Islam, if the other spouse does not embrace the same religion, automatically dissolves the marriage. We have a Zoroastrian husband according to whose personal law such conversion does not bring about the same result. The Privy Council in Waghela Rajsanji v. Shekh Masludin expressed the opinion that if there was no rule of Indian law which could be applied to a particular case, then it should be decided by equity and good conscience, and they interpreted equity and good conscience to mean the rules of English law if found applicable to Indian society and circumstances. And the same view was confirmed by their Lordships of the Privy Council in Muhammad Raza v. Abbas Bandi Bibi. But there is no rule of English law which can be made applicable to a suit for divorce by a Muslim wife against her Zoroastrian husband. The English law only deals and can only deal with Christian marriages and with grounds for dissolving a Christian marriage.

Therefore we must decided according to justice and right, or equity and good conscience independently of any provisions of the English law. We must do substantial justice between the parties and in doing so hope that we have vindicated the principles of justice and right or equity and good conscience… It is impossible to accept the contention of Mr. Peerbhoy that justice and right requires that we should apply Muslim law in dealing this case. It is difficult to see why the conversion of one party to a marriage should necessarily afford a ground for its dissolution. The bond that keeps a man and woman happy in marriage is not exclusively the bond of religion. There are many other ties which make it possible for a husband and wife to live happily and contentedly together. It would indeed be a startling proposition to lay down that although two persons may want to continue to live in a married state and disagree as to the religion they should profess, their marriage must be automatically dissolved. Mr. Peerbhoy has urged that it is rarely possible for two persons of different communities to be happily united in wedlock. If conversion of one of the spouses leads to unhappiness, then the ground for dissolution of marriage would not be the conversion but the resultant unhappiness. Under Muslim law, apostasy from Islam of either party to a marriage operates as a complete and immediate dissolution of the marriage.

But s.4 of the Dissolution of Muslim Marriages Act (VIII of 1939) provides that the renulciation of Islam by a married Muslim woman or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage.

This is a very clear and emphatic indication that the Indian legislature has departed from; the rigor of the ancient Muslim law and has taken the more modern view that there is nothing to prevent a happy marriage notwithstanding the fact that the two parties to it professed different religious.. We must also point out that the plaintiff and the defendant were married according to the Zoroastrian rites. They entered into a solemn pact that the marriage would be monogamous and could only be dissolved according to the tenets of the Zoroastrian religion.

It would be patently contrary to justice and right that one party to a solemn pact should be allowed to repudiate it by a unilateral act. It would be tantamount to permitting the wife to force a divorce upon her husband although he may not want it and although the marriage vows which both of them have taken would not permit it. We might also point out that the Shariat Act (Act XXVI of 1937) provides that the rule of decision in the various cases enumerated in s.2 which includes marriage and dissolution of marriage shall be the Muslim personal law only where the parties are Muslims; it does not provide that the Muslim personal law shall apply when only one of the parties is a Muslim.” (the single Judge judgment and the Division Bench judgment are reported in 1946 Bombay Law Reporter 864) In Andal Vaidyanathan vs. Abdul Allam Vaidya 1946 Madras, a Division Bench of the High Court dealing with a marriage under the Special Marriage Act 1872 held:

“The Special Marriage Act clearly only contemplates monogamy and a person married under the Act cannot escape from its provisions by merely changing his religion. Such a person commits bigamy if he marries again during the lifetime of his spouse, and it matters not what religion he professes at the time of the second marriage. Section 17 provides the only means for the dissolution of a marriage or a declaration of its nullity.

Consequently, where two persons married under the Act subsequently become converted to Islam, the marriage can only be dissolved under the provisions of the Divorce Act and the same would apply even if only one of them becomes converted to Islam. Such a marriage is not a marriage in the Mahomoden sense which can be dissolved in a Mahomedan manner. It is a statutory marriage and can only be dissolved in accordance with the Statute: (’41) 28 A.I.R.1941 Cal. 582 and (1917) 1 K.B.

634, Rel. on; (’35) 22 A.I.R. 1935 Bom.

8 and 18 Cal. 264, Disting.” It is, thus, obvious from the catena of case-low that a marriage celebrated under a particular personal law cannot be dissolved by the application of another personal law to which one of the spouses converts and the other refuses to do so. Where a marriage takes place under Hindu Law the parties acquire a status and certain rights by the marriage itself under the law governing the Hindu Marriage and if one of the parties is allowed to dissolve the marriage by adopting and enforcing a new personal law, it would tantamount to destroying the existing rights of the other spouse who continues to be Hindu. We, therefore, hold that under the Hindu Personal Law as it existed prior to its codification in 1955, a Hindu marriage continued to subsist even after one of the spouses converted to Islam. There was no automatic dissolution of the marriage.

The position has not changed after coming into force of the Hindu Marriage Act, 1955 (the Act) rather it has become worse for the apostate. The Act applies to Hindus by religion in any of its forms or developments. It also applies to Buddhists, Jains and Sikhs. It has no application to Muslims, Christians and Parsees. Section 4 of the Act is as under:

“Overriding effect of Act. save as otherwise expressly provided in this Act,- (a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;

(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.” A marriage solemnised, whether before or after the commencement of the Act, can only be dissolved by a decree of divorce on any of the grounds enumerated in Section 13 of the Act. One of the grounds under Section 13 (i) (ii) is that “the other party has ceased to be a Hindu by conversion to another religion”. Sections 11 and 15 of the Act is as under:- “Void marriages:- Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5.” “Divorced persons when may marry again.- When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, of there is such a right of appeal the time for appealing has expired without an appeal having been presented or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.” It is obvious from the various provisions of the Act that the modern Hindu Law strictly enforces monogamy. A marriage performed under the Act cannot be dissolved except on the grounds available under section 13 of the Act. In that situation parties who have solemnised the marriage under the Act remain married even when the husband embraces Islam in pursuit of other wife. A second marriage by an apostate under the shelter of conversion to Islam would nevertheless be a marriage in violation of the provisions of the Act by which he would be continuing to be governed so far as his first marriage under the Act is concerned despite his conversion to Islam. The second marriage of an apostate would, therefore, be illegal marriage qua his wife who married him under the Act and continues to be Hindu. Between the apostate and his Hindu wife the second marriage is in violation of the provisions of the Act and as such would be nonest. Section 494 Indian Penal Code is as under:- “Marrying again during lifetime of husband or wife. Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

The necessary ingredients of the Section are: (1) having a husband or wife living; (2) marries in any case;

(3) in which such marriage is void; (4) by reason of its taking place during the life of such husband or wife.

It is no doubt correct that the marriage solemnised by a Hindu husband after embracing Islam may not be strictly a void marriage under the Act because he is no longer a Hindu, but the fact remains that the said marriage would be in violation of the Act which strictly professes monogamy.

The expression “void” for the purpose of the Act has been defined under Section 11 of the Act. It has a limited meaning within the scope of the definition under the Section. On the other hand the same expression has a different purpose under Section 494, IPC and has to be given meaningful interpretation.

The expression “void” under section 494, IPC has been used in the wider sense. A marriage which is in violation of any provisions of law would be void in terms of the expression used under Section 494, IPC.

A Hindu marriage solemnised under the Act can only be dissolved on any of the grounds specified under the Act.

Till the time a Hindu marriage is dissolved under the Act none of the spouses can contract second marriage. Conversion to Islam and marrying again would not, by itself, dissolve the Hindu marriage under the Act. The second marriage by a convert would therefore be in violation of the Act and as such void in terms of Section 494, IPC. Any act which is in violation of mandatory provisions of law is per-se void.

The real reason for the voidness of the second marriage is the subsisting of the first marriage which is not dissolved even by the conversion of the husband. It would be giving a go-bye to the substance of the matter and acting against the spirit of the Statute if the second marriage of the convert is held to be legal.

We also agree with the law laid down by Chagla, J. in Robasa Khanum vs. Khodabad Irani’s case (supra) wherein the learned Judge has held that the conduct of a spouse who converts to Islam has to be judged on the basis of the rule of justice and right or equity and good conscience. A matrimonial dispute between a convert to Islam and his or her non-Muslim spouse is obviously not a dispute “where the parties are Muslims” and, therefore, the rule of decision in such a case was or is not required to be the “Muslim Personal Law”. In such cases the Court shall act and the Judge shall decide according to justice, equity and good conscience. The second marriage of a Hindu husband after embracing Islam being violative of justice, equity and good conscience would be void on that ground also and attract the provisions of Section 494, IPC.

Looked from another angle, the second marriage of an apostate-husband would be in violation of the rules of natural justice. Assuming that a Hindu husband has a right to embrace Islam as his religion, he has no right under the Act to marry again without getting his marriage under the Act dissolved. The second marriage after conversion to Islam would, thus, be in violation of the rules of natural justice and as such would be void.

The interpretation we have given to Section 494 IPC would advance the interest of justice. It is necessary that there should be harmony between the two systems of law just as there should be harmony between the two communities.

Result of the interpretation, we have given to Section 494 IPC, would be that the Hindu Law on the one hand and the Muslim Law on the other hand would operate within their respective ambits without trespassing on the personal laws of each other. Since it is not the object of Islam nor is the intention of the enlighten Muslim community that the Hindu husbands should be encouraged to become Muslims merely for the purpose of evading their own personal laws by marrying again, the courts can be persuaded to adopt a construction of the laws resulting in denying the Hindu husband converted to Islam the right to marry again without having his existing marriage dissolved in accordance with law.

All the four ingredients of Section 494 IPC are satisfied in the case of a Hindu husband who marries for the second time after conversion to Islam. He has a wife living, he marries again. The said marriage is void by reason of its taking place during the life of the first wife.

We, therefore, hold that the second marriage of a Hindu husband after his conversion to Islam is a void marriage in terms of Section 494 IPC.

We may at this stage notice the Privy Council judgment in Attorney General Ceylon vs. Reid (1965 Al. E.R. 812). A Christian lady was married according to the Christian rites.

Years later she embraced Islamic faith and got married by the Registrar of Muslim Marriages at Colombo according to the statutory formalities prescribed for a Muslim marriage.

The husband was charged and convicted by the Supreme Court, Ceylon of the offence of bigamy under the Ceylon Penal Code.

In an appeal before the Privy Council, the respondent was absolved from the offence of bigamy. It was held by Privy Council as under :- “In their Lordship’s view, in such countries there must be an inherent right in the inhabitants domiciled there to change their religion and personal law and so to contract a valid polygamous marriage if recognised by the laws of the country notwithstanding an earlier marriage. It such inherent right is to be abrogated, it must be done by statute.” Despite there being an inherent right to change religion the applicability of Penal laws would depend upon the two personal laws governing the marriage. The decision of Privy Council was on the facts of the case, specially in the background of the two personal laws operating in Ceylon.

Reid’s case is, thus, of no help to us in the facts and legal background of the present cases.

Coming back to the question “uniform civil code” we may refer to the earlier judgments of this Court on the subject.

A Constitution Bench of this Court speaking through Chief Justice Y.V. Chandrachud in Mohd. Ahmed Khan vs. Shah Bano Begum AIR 1985 SC 945 held as under:

“It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”.

There is no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably; it has the legislative competence to do so. A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform. But, a beginning has to be made is the Constitution is to have any meaning.

Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge that gap between personal laws cannot take the place of a common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case.” In Ms. Jordan Diengdeh vs. S.S. Chopra [1985] INSC 137; AIR 1985 SC 935 O.

Chinnappa Reddy, J. speaking for the Court referred to the observations of Chandrachud, CJ in Shah Bano Begum’s case and observed as under:

“It was just the other day that a Constitution Bench of this Court had to emphasise the urgency of infusing life into Art. 44 of the Constitution which provides that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” The present case is yet another which focuses .. on the immediate and compulsive need for a uniform civil code. The totally unsatisfactory state of affairs consequent on the lack of a uniform civil code is exposed by the facts of the present case. Before mentioning the facts of the case, we might as well refer to the observations of Chandrachud, CJ in the recent case decided by the Constitution Bench (Mohd.

Ahmed Khan vs. Shah Bano Begum).” One wonders how long will it take for the Government of the day to implement the mandate of the framers of the Constitution under Article 44 of the Constitution of India.

The traditional Hindu law – personal law of the Hindus – governing inheritance, succession and marriage was given go- bye as back as 1955-56 by codifying the same. There is no justification whatsoever in delaying indefinitely the introduction of a uniform personal law in the country.

Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilised society. Article 25 guarantees religious freedom whereas Article 44 seeks to divest religion from social relations and personal law. Marriage, succession and like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25, 26 and 27. The personal law of the Hindus, such as relating to marriage, succession and the like have all a sacramental origin, in the same manner as in the case of the Muslims or the Christians. The Hindus alongwith Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of the national unity and integration, some other communities would not, though the Constitution enjoins the establishment of a “common civil Code” for the whole of India.

It has been judicially acclaimed in the United States of America that the practice of Polygamy is injurious to “public morals”, even though some religion may make it obligatory or desirable for its followers. It can be superseded by the State just as it can prohibit human sacrifice or the practice of “Suttee” in the interest of public order. Bigamous marriage has been made punishable amongst Christians by Act (XV of 1872), Parsis by Act (III of 1936) and Hindus, Buddhists, Sikhs and Jains by Act (XXV of 1955).

Political history of India shows that during the Muslim regime, justice was administered by the Qazis who would obviously apply the Muslim Scriptural law to Muslims, but there was no similar assurance so far litigations concerning Hindus was concerned. The system, more or less, continued during the time of the East India Company, until 1772 when Warren Hastings made Regulations for the administration of civil justice for the native population, without discrimination between Hindus and Mahomedans. The 1772 Regulations followed by the Regulations of 1781 whereunder it was prescribed that either community was to be governed by its “personal” law in matters relating to inheritance, marriage, religious usage and institutions. So far as the criminal justice was concerned the British gradually superseded the Muslim law in 1832 and criminal justice was governed by the English common law. Finally the Indian Penal Code was enacted in 1860. This broad policy continued throughout the British regime until independence and the territory of India was partitioned by the British Rulers into two States on the basis of religion. Those who preferred to remain in India after the partition, fully knew that the Indian leaders did not believe in two-nation or three-nation theory and that in the Indian Republic there was to be only one Nation – Indian nation – and no community could claim to remain a separate entity on the basis of religion. It would be necessary to emphasise that the respective personal laws were permitted by the British to govern the matters relating to inheritance, marriages etc.

only under the Regulations of 1781 framed by Warren Hastings. The Legislation – not religion – being the authority under which personal law was permitted to operate and is continuing to operate, the same can be superseded/supplemented by introducing a uniform civil code.

In this view of the matter no community can oppose the introduction of uniform civil code for all the citizens in the territory of India.

The Successive Governments till-date have been wholly re-miss in their duty of implementing the constitutional mandate under Article 44 of the Constitution of India.

We, therefore, request the Government of India through the Prime Minister of the country to have a fresh look at Article 44 of the Constitution of India and “endeavour to secure for the citizens a uniform civil code throught the territory of India”.

We further direct the Government of India through Secretary, Ministry of Law and Justice to file an affidavit of a responsible officer in this Court in August, 1996 indicating therein the steps taken and efforts made, by the Government of India, towards securing a “uniform civil code” for the citizens of India. Sahai, J. in his short and crisp supporting opinion has suggested some of the measures which can be undertaken by the Government in this respect.

Answering the questions posed by us in the beginning of the judgment, we hold that the second marriage of a Hindu- husband after conversion to Islam, without having his first marriage dissolved under law, would be invalid. The second marriage would be void in terms of the provisions of Section 494 IPC and the apostate-husband would be guilty of the offence under Section 494 IPC.

The question of law having been answered we dispose of the writ petitions. The petitioners may seek any relief by invoking any remedy which may be available to them as a result of this judgment or otherwise. No costs.

Smt. Sarla Mudgal, President Kalyani & Ors. etc. etc.

Union of India & Ors.

R.M. SAHAI, J.

Considering senstivity of the issue and magnitude of the problem, both on the desirability of a uniform or common civil code and its feasibility, it appears necessary to add a few words to the social necessity projected in the order proposed by esteemed Brother Kuldip Singh, J. more to focus on the urgency of such a legislation and to emphasise that I entirely agree with the thought provoking reasons which have been brought forth by him in his order clearly and lucidly.

The pattern of debate, even today, is the same as was voiced forcefully by the members of the minority community in the Constituent Assembly. If, `the non-implementation of the provisions contained in Article 44 amounts to grave failure of Indian democracy’ represents one side of the picture, then the other side claims that, `Logical probability appears to be that the code would cause dissatisfaction and disintegration than serve as a common umbrella to promote homogeneity and national solidarity’.

When Constitution was framed with secularism as its ideal and goal, the consensus and conviction to be one, socially, found its expression in Article 44 of the Constitution. But religious freedom, the basic foundation of secularism, was guaranteed by Articles 25 to 28 of the Constitution. Article 25 is very widely worded. It guarantees all persons, not only freedom of conscience but the right to profess, practice and propagate religion. What is religion? Any faith or belief. The Court has expanded religious liberty in its various phases guaranteed by the Constitution and extended it to practices and even external overt acts of the individual. Religion is more than mere matter of faith. The Constitution by guaranteeing freedom of conscience ensured inner aspects of religious belief. And external expression of it were protected by guaranteeing right to freely, practice and propagate religion. Reading and reciting holy scriptures, for instance, Ramayana or Quran or Bible or Guru Granth Sahib is as much a part of religion as offering food to deity by a Hindu or bathing the idol or dressing him and going to a temple, mosque, church or gurudwara.

Marriage, inheritance, divorce, conversion are as much religious in nature and content as any other belief or faith. Going round the fire seven rounds or giving consent before Qazi are as much matter of faith and conscience as the worship itself. When a Hindu becomes convert by reciting Kalma or a Mulsim becomes Hindu by reciting certain Mantras it is a matter of belief and conscience. Some of these practices observed by members of one religion may appear to be excessive and even violative of human rights to members of another. But these are matters of faith. Reason and logic have little role to play. The sentiments and emotions have to be cooled and tempered by sincere effort. But today there is no Raja Ram Mohan Rai who single handed brought about that atmoophere which paved the way for Sati abolition. Nor is a statesman of the stature of Pt. Nehru who could pilot through, successfully, the Hindu Succession Act and Hindu Marriage Act revolutionising the customary Hindu Law. The desirability of uniform Code can hardly be doubted. But it can concretize only when social climate is properly built up by elite of the society, statesmen amongst leaders who instead of gaining personal mileage rise above and awaken the masses to accept the change.

The problem with which these appeals are concerned is that many Hindus have changed their religion and have become convert to Islam only for purposes of escaping the consequences of bigamy. For instance, Jitendra Mathur was married to Meena Mathur. He and another Hindu girl embraced Islam. Obviously because Muslim Law permits more than one wife and to the extent of four. But no religion permits deliberate distortions. Much misapprehension prevails about bigamy in Islam. To check the misuse many Islamic countries have codified the personal Law, `Wherein the practice of polygamy has been either totally prohibited or severely restricted. (Syria, Tunisia, Morocco, Pakistan, Iran, the Islamic Republics of the Soviet Union are some of the Muslim countries to be remembered in this context’. But ours is a Secular Democratic Republic. Freedom of religion is the core of our culture. Even the slightest deviation shakes the social fibre. `But religious practices, violative of human rights and dignity and sacerdotal suffocation of essentially civil and material freedoms, are not autonomy but oppression’. Therefore, a unified code is imperative both for protection of the oppressed and promotion of national unity and solidarity. But the first step should be to rationalise the personal law of the minorities to develop religious and cultural amity. The Government would be well advised to entrust the responsibility to the Law Commission which may in consultation with Minorities Commission examine the matter and bring about the comprehensive legislation in keeping with modern day concept of human rights for women.

The Government may also consider feasibility of appointing a Committee to enact Conversion of Religion Act, immediately, to check the abuse of religion by any person.

The law may provide that every citizen who changes his religion cannot marry another wife unless he divorces his first wife. The provision should be made applicable to every person whether he is a Hindu or a Muslim or a Christian or a Sikh or a Jain or a Budh. Provision may be made for maintenance and succession etc. also to avoid clash of interest after death.

This would go a long way to solve the problem and pave the way for a unified civil code.

Smt. Sarla Mudgal, President Kalyani and Ors.

Union of India & Ors.

(W.P. (C) No.347/90, W.P. (C) No.509/92 and W.P. (C) No.424/92).

O R D E R For the reasons and conclusions reached in separate but concurring judgments the Writ petitions are allowed in terms of the answers to the questions posed in the opinion of Kuldip Singh, J.

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IN THE SUPREME COURT OF INDIA
UNION OF INDIA …PETITIONER
Vs.
RAHUL RASGOTRA …RESPONDENT
DATE OF JUDGMENT: 01/02/1994
BENCH: VERMA, JAGDISH SARAN (J) SINGH N.P. (J) VENKATACHALA N. (J)
CITATION:
1995 AIR 2237 1994 SCR (1) 508
1994 SCC (2) 600 JT 1994 (1) 441
1994 SCALE (1)336
JUDGMENT

The judgment of the Court was delivered by VERMA,J.–Rahul Rasgotra, Respondent 1 in Civil appeal No.5414of 1992 was selected for the Indian Police Service in the combined Civil Service Examination held in theyear 1988, while Desh Raj Singh, 603 Respondent I in Civil Appeal No, 3844 of 1993 was selected for the Indian Police Service in the combined Civil Services Examination held in the year 1989. Rahul Rasgotrawas, therefore, a probationer in the IPS belonging to the1989 batch,while Desh Raj Singh was an IPS probationer ofthe 1990 batch. Rahul Rasgotra was granted exemptionfrom joiningtraining with other probationers of the 1989 batch of IPSsince he wanted to appear in the nextexamination held in the year 1989 in an attempt to improve his prospects by getting selected for a better service. However, he did not succeed and he joined the training in August 1990 as an exempted probationerof the 1989batchalongwith probationers of the 1990 batch. Desh Raj Singh hadalso sought permission to appear in the. next examination but he later withdrewhis request and joined the training along with the probationers of the 1990 batch. Rahul Rasgotra was ranked168 in the 1989 batch and according to his rankthe cadre allocation made to him on December 28, 1989 was in the joint cadre of the States of Manipur and Tripura. There is no dispute that according to his rank in the 1989 batch, the cadre allocated to him is appropriate.The claim of Rahul Rasgotra is that the cadre allocation to him should bemade treating him as a probationer along with the 1990 batchand not 1989 batch since as an exempted probationer of the 1989 batch he had joined the training along with probationers of the 1990 batch; and on this basis, he would get allocation to thecadre of a State better than Manipur and Tripura.

However, he does not indicate the manner in which he can be mixed with probationers of the 1990 batch or be given a rank with them. Desh Raj Singh was allotted the Orissa cadre as a probationer of the 1990 batch, but he claimed allotment to his home State of Uttar Pradesh. He too is aggrieved by the allotment of Orissa cadre to him. Both ofthem filed applications before the Central Administrative Tribunal challenging the cadreallotment. Their claim hasbeen allowedby the Tribunal. Hence these appealsby special leave are filed by the Union of India.

2.We may now refer to some relevantprovisions. The IndianPoliceService(Cadre) Rules, 1954providefor constitution of cadres, allocation of membersof various cadresand certain ancillary matters.Rule 2(a) defines ‘cadreofficer’ to mean a member ofthe Indian Police Service. Rule 3 provides that there shall beconstituted for each State or group of States an Indian Police Service Cadre.Rule 4 deals with the strength and composition of each of the cadres constituted under Rule 3. Rule 5 which is material reads as under :

“5. Allocation of members to various cadres.- (1) Theallocation of cadre officer tothe various cadres shall be made bythe Central Government in consultation with the State Government or State Governments concerned.

(2)The Central Government may,with the concurrence oftheStateGovernments concerned, transfer a cadre officer fromone cadre to another cadre.” 604 Sub-rule (1) of Rule 5, in terms, requiresthe Central Government tomake allocation of cadre officers tothe various cadres in consultation with the State Government or State Governments concerned.Sub-rule (2)of Rule 5 provides for transfer of a cadre officer from one cadre to anotherby the Central Government with the concurrence of the State Governments concerned.

3.The main argument in these appeals by Shri P.P. Rao, learnedcounsel forRespondent I is thatthe cadre allocation canbe made by the Central Governmentin accordance with sub-rule (1) of Rule 5 only of a ‘cadre officer’ as defined in Rule 2(a) which means a member of the Indian Police Service; and, therefore, it can be made of an officeronly when he has become a member ofthe Indian PoliceService by appointment to the Service which happens when the officer concerned joins the training onhis appointment and not earlier.The argumentis that on selection as a result of the competitive examination and allotment ofa particular Serviceto thesuccessful candidate, he does not become a member of the Service which happens only when he is appointed to the Service by joining the training.On this basis, it was contended, that Rahul Rasgotra having joined the training in August 1990,the cadre allocation made in his case in December1989 after being exempted from joining the training alongwith other officers of the 1989 batch, was made when hewas not a ‘cadreofficer’ whichhe became only in August 1990 on joiningthe training with officers of the 1990batch.It was submitted, that the cadre allocation of Rahul Rasgotra in December 1989 being made prior to hisjoiningthe training in August 1990, the power under Rule 5(1) wasthen not available and a fresh cadre allocation has to be made in his case on the basis of facts existing in August 1990 along with the officers of the 1990 batch who hadjoinedthe training at the same time. The submission is, that onthis basis he expects allocation to a better cadre to which he is entitled on consideration for cadre allocationalongwith officers of the 1990 batch.

4.We find no merit in the contention of Shri P.P. Rao, learned counsel for Respondent 1.

5.The Indian Police Service (Recruitment) Rules, 1954 define’directrecruit’ in Rule 2(aa) to mean a person appointed to the Service after recruitment under clause(a) of sub-rule (1) of Rule 4. Rule 4 deals with method of recruitment to the Service and clause (a) of sub-rule(1) thereinprovides the method of a competitiveexamination.

Rule 4(2) requires determination of number of persons to be recruited by each method of recruitment on each occasion as may be required to fill the vacancies during any period of recruitment. Rule 6 provides for appointments tothe Serviceby the Central Governmentaccording tothe prescribed methods. Rule 7deals with recruitment by competitive examination. Respondent I in both these appeals were so appointed.

6.The Indian Police Service (Appointment by Competitive Examination) Regulations, 1955 have been framed in pursuance of Rule 7 of 605 the Indian Police Service (Recruitment) Rules, 1954, wherein Regulation 7 providesfor preparation of the list of successful candidatesarranged in order of merit ofthe candidates as a result of the competitive examination.

7.The Indian Police Service (Probation) Rules, 1954, in Rule 2(e), define ‘probationer’ to mean a person appointed to theService on probationand include an exempted probationer when heis appointed to the Serviceon probation. Rule 2(ee) defines ‘exempted probationer’ to mean a person ‘who, on being allocated to the Service,’has expressed his intention to appear at the nextexamination and has been permitted to abstain from probationary training in order to so appear.Obviously, allocation to the Service is complete in the case of an ‘exempted probationer’ also.

It isin this sense that Rahul Rasgotra wasan exempted probationer of the 1989 batch.Rule 3 relates to period of probation. Rule 5 deals with training of the probationers.

Rule 10 therein relates to seniority of probationersand reads as under :

“10. Seniorityof Probationer.- (1)The Central Government shall prepare a list in two parts of all probationers who are appointed to the Service onthe results of thesame competitive examination.The first part shall consist of the probationers other thanthe exemptedprobationers and thesecondpart shall consist of the exempted probationers who were selectedat thesamecompetitive examination. The probationers included in the first part shall be placed en bloc abovethe exemptedprobationers included in the second part. The list shall be arranged in the order of merit whichshallbe determinedin accordance withthe aggregateof marks obtainedby each probationer or exempted probationer, as the case may be- (a) at the competitive examination;

(b) inrespectof his recordin theLal BahadurShastri National Academyof Administration and theSardarVallabhbhai Patel National Police Academy; and (c) at the final examination:

Provided that if two or more probationers have secured equal number of marks in the aggregate, their order of merit shall be the order of their dates of birth.

(2)Theseniority inter se of the probationers, who are assigned the same year of allotment, shall be determined in accordance with the list prepared under sub-rule (1).” (emphasis supplied) 8.The Indian Police Service (Regulation of Seniority) Rules, 1988 are also material.Rules 3 and 4,insofar as they are material, read as under:

“3. Assignmentof year of allotment.-(1) Every officer shall be assigneda year of allotmentin accordance with the provisions hereinafter contained in these rules.

(2)The year of allotment of an officer in Service at the commencement ofthese rules shall be the same as has been assigned tohim or may be assigned to him bythe Central Government in accordance 606 with therules, orders and instructions in force immediately before the commencement of these rules.

(3)The year of allotment of an officer appointedtothe serviceafterthe commencement ofthese rules shall beas follows- (i)The year ofallotment of a direct recruit officer shall be the year following the year in which the competitiveexamination was held :

Providedthat in thecase of exempted probationers, asdefined in clause (ee) of Rule 2 of the IPS (Probation) Rules, 1954, and direct recruit officers, who are permitted to join probationary training under sub-rule (1) of Rule 5 of the IPS (Probation) Rules, 1954, with the direct recruit officers of a subsequent year of allotment, they shall be assignedthat subsequent year as the year of allotment.

*** 4.Inter se seniority of the officers.- The inter seseniority of the officers whoare assignedthe same year of allotment shall be in the following order and in each category the inter se seniority shall be determined in the following manner- (i)Direct recruit officers shall be ranked inter se in the order of merit as determined in accordance with Rule 10 ofthe Indian Police Service (Probation) Rules, 1954;

*** These are the relevant provisions in the present context.

9.It may also be mentioned that an explanation was added at the end of sub-rule (1) of Rule 5 of the Indian Police Service(Cadre) Rules, 1954by a Government of India Notification published in the Gazette of Indiaon January 13, 1993 which is deemed to have come into force on January 1, 1988. It reads as under :

“Explanation : For the purposes of thissub- rule, ‘cadre officer’includes a person allottedto the Indian Police Service onthe basis of a competitive examination held under sub-rule(1) of Rule 7 of the Indian Police Service (Recruitment) Rules, 1954 readwith the Indian Police Service (Appointment by Competitive Examination) Regulations, 1955 and grantedextension of time tojointhe service.” It does appear that this retrospective amendmentby insertion of the explanation in sub-rule (1) of Rule 5 is clarificatory in nature and was made as a result of the view taken by theCentralAdministrativeTribunal insuch matters. With this explanation, there can be no doubtthat an exempted probationer like Rahul Rasgotrawould be a ‘cadre officer’ for the purpose of the Indian Police Service (Cadre)Rules,1954 for exercise of the power of cadre allocation to him in accordance with Rule 5 even before he joins the training. The question is : Whether this wasthe position evenwithout the explanation to sub-rule (1) of Rule 5? We have no doubt that this was so.

607 10.Thevarious stepsleading to the selection and appointment of a candidate to an All India Service likethe Indian PoliceService as aresultofa combined competitive examination and allocation of the State Cadre to him are these, namely, (i) competitive examination;(ii) selection in the competition and determination of his order of merit; (iii) allocation of the particular All India Service to him based on his position in the order of merit;

and (iv) allocation of the State Cadre to him. Itis, therefore, obvious that allocation of the State Cadre is made after the stage for allotting the particular All India Service like the Indian Police Service has been made, to the selected candidate. The object andpurpose of cadre allocation to the selected candidate who has been allocated to a particular Service is merely toindicate the State Cadre to which he would belong in the service and it isnot necessary forthis purpose for him to actually jointhe training. The number of total vacancies in the serviceand those available in the State Cadres for a particular batch being known and so also the total number of candidates selected atthe competitive examinationwith their comparative position in order of merit, nothing more is neededto perform the exercise of cadre allocation at that stage and no useful purpose is served by postponingthat exercise to a later date. There is thus no reason whythe cadre allocation is required to be deferred till a candidate has joined the training after being allotted the particular Servicelike the Indian Police Service on the basis ofhis comparative position in merit among the selected candidates.

The only question, therefore, is : Whether the Indian Police Service(Cadre) Rules, 1954 forbid performance ofthis exercise before the officer has actually joined the training after being allotted to the Indian Police Service? 11.`Exempted probationer’ in Rule 2(ee) of the Indian Police Service (Probation) Rules, 1954 is defined to mean a personwho, on being ,allocated’ to the Service, hasbeen permitted to abstain from probationary training in order to appearat the next examination. It is, therefore, clear that allocation of the Indian Police Serviceto himhas already been made and but for the exemption granted tohim, he would be required to join the probationary training.In other words, for all practical purposes, he istreated as probationer of the Indian Police Service and it is forthis reason that he seeks and is granted the exemption permitting him toabstain from probationary training for thetime being.This incidentof granting exemption is itself indicative of the fact that for all practical purposes, he is treated as a member of the Indian Police Service and is granted exemption from commencing his probationary training.

There is thusno reason why for thepurpose of cadre allocation, hecannotbe treated asa probationerand, therefore, a member of the Indian Police Service. Rule 10 of the Indian Police Service (Probation) Rules, 1954 dealing with seniority of probationers also givesthesame indication. Rule 10 requires one common list, even though in two parts, of all probationers who are appointed tothe Serviceon the results of the same competitiveexamination of which the first part consists of probationers otherthan exempted probationersand the second partconsists of exempted probationers who were selected at the same 608 competitive examination; and those in the first partare placeden bloc above the exempted probationers included in the second part. Thus, the exempted probationers arealso treatedas probationers selected at the samecompetitive examination and areincluded in the common listof probationers of the same batch with the only difference of a possible lossof seniorityin thesame batch to a probationer lower in order of meritin thecompetitive examination in case the probationer who ranked lower in the examination result is in the first part of the list.This being the only difference as a consequence of thelate joining of training of an exempted probationer, it is clear that the Indian Police Service (Probation) Rules, 1954read as a whole treat the exempted probationeralso as a probationer ofthe same batch for allpractical purposes and, therefore, as a member of the Indian Police Service of the same batch as any other probationer of that batch who is not an exempted probationer. The meaning of ‘cadre officer’ in Rule 5(1) of the Indian Police Service (Cadre) Rules, 1954 has, therefore, to be understood to mean a member of the Indian Police Service in this manner, or in other words a probationer so understood.

12.Thisview is alsoin accord with thepractical consequence thereof.If the submission of Shri P.P.Rao were to be accepted, there is no provision in the relevant rules to work out the same. The officers selected atthe same competitive examination and,therefore, being probationers of the same batch, are placed in one combined list for the purpose of seniority prepared in accordance with Rule 10 of the Indian Police Service (Probation) Rules, 1954, while those of the next year’s competitive examination belongto thesubsequent batch andare ina separate seniority listprepared under Rule 10. Even thoughthe exempted probationerscommence their trainingwith probationers of the next batch, the rules do not provide for inter se ranking ofthe exempted probationers ofthe previous batch along with the probationers of the next batch or forcadre allocation of exempted probationers against vacancies forthe next batch meant for thenext years’ probationers. If thesubmission ofShri P.P. Rao be correct, there has to be some mode prescribed in the rules for that purpose also. The absence of any such provision in the rules isa clear indication that the exempted probationers are to be treated as probationers of thesame batch along with all those selected at the samecompetitive examination and this has to be for all purposes including their cadre allocation which has reference to the available vacancies meant forofficers selected at thesame competitive examination and, I therefore, tothe corresponding cadre allocation for the entire batch ofthe same year, there being no method forintermixing ofany probationer includingthe exempted probationer oftwo different batches for the purpose of cadre allocation.For a harmonious construction of all the relevantprovisions, the meaning of ‘cadre officer’ in Rule 5(1) ofthe Indian Police Service (Cadre) Rules, 1954 must be so understood and construed and this also promotes the object and purpose of cadre allocation to be made thereunder. Theexplanation added in sub-rule (1) of Rule 5 retrospectively from January 1, 1988 is obviously to clarify thisposition which is implicit in the provisions even without the aid of this explanation.

609 13.On the above view, the claim made by RahulRasgotra, Respondent I in Civil Appeal No. 5414 of 1993 is untenable.

The claim of Desh Raj Singh, Respondent I in Civil Appeal No. 3844 of 1993 is even more tenuous in view of thefact that he was not even an ‘exempted probationer’ since he withdrew his request for permission to appear at thenext examination. The view taken by theTribunal thatthe retrospective amendment of Rule 5(1) by insertion ofthe Explanation therein w.e.f. January 1, 1988 isinapplicable to theapplication of Desh Raj Singh,whichwas pending beforethe Tribunal at the time the amendment was made, is untenable in view of the construction we have made ofthe provisions andour view that the Explanation is merely clarificatory of the existing position.

14.Before parting with this case, weare constrained to place on record our deep distress at the manner in which the cases on behalf of the Government aregenerally conducted even in this Court and also when the Government comes to this Court to overcome the consequence of an adverse order made against it. We do so with a feeling almost of despair since our constant lament orally and, at times, even in writinghas so far evinced no appropriate responsefor improvement. On a similar occasion, this Court in Union of India v. A. Radhakrishnan, observed thus : (SCC p. 209, para 1) “This matter brings to the fore once again the ineptitude with which litigation is conducted quite often on behalf of the Government of India and State Governmentsevenwhen importantissueshavinglasting andwide repercussions are involved. The point in this case relates to the validity of a policy of the railway administration and is likely to affect the staff pattern in several units. In spite of this fact, to support validity of the impugnedpolicy the required materialswere not produced in the High Court and to overcome the adverse decision several opportunities given byus to produce the entire relevant record were not availed. The learned Additional Solicitor General informed us after several adjournments that betterperformance is not possible.We, therefore, concluded the hearing and proceed to decide on the available materials. It is indeed fortunate forthe appellants thatour conclusion is in their favour…….

There is no improvement in the situation. An argumentwas advanced on behalf of the respondents that the cadre allocation to Respondent 1 was made prior to allotment of the Service to him on account of which it was invalid.

Material documents to negative thesame must bein possession ofthe Government of India but they werenot produced before the Tribunal or even before us, in spite of opportunity given by us. The learned Additional Solicitor Generalexpressed his utter helplessness in the matterand informed us that his efforts to obtain and produce those documents from the authorities concerned had failed.This shows the apathy of the persons responsible for the conduct of the case on behalf of the Government of India. Weare not sure whether such lapses of the persons responsiblefor conduct 1 1991 Supp (2) SCC 208: 1992 SCC (L&S) 145 :(1992) [1991] INSC 220; 19ATC 308: (1991) 3 SCR 895 610 of the case on behalf of the Government are deliberate or inadvertent but they are certainly culpable which need to be investigated by the authorities concerned to identifythe delinquents and punish them in public interest.It istime that the derelicts are also held accountable and liablefor the loss of public money due to their lapses. The stage is now reached for taking drastic stepsto arrest further decadence and to implement the avowed promises held outfor improvement of the working of the system. Governments being the largest litigants, radical improvement is needed inthe functioning of theirmachinery byreducing frivolous litigation andensuring proper conduct of the necessary litigation. Unless the desirable steps in this behalfare taken in theright earnest, any number of seminarsand conferences todevise means for reducing thebacklog in courts is an exercise in futility and the resolutionsmade therein, are empty slogans. We reiterate this with the fond hope that the authorities concerned would wake up tothe true malaise and work to make the programme of improving its machinery, a reality.

15.Consequently, boththese appeals are allowed. The impugned orders made by the Tribunal in both cases areset aside resulting in dismissal of theapplications filed beforethe Tribunal by Rahul Rasgotra and DeshRaj Singh.

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