[cr-india] INDIA: Broadcasting: a basic right to freedom of expression

[George Lessard]

Broadcasting: a basic right to freedom of expression

Using the airwaves to receive and put out 
information is a fundamental right, says Bhaskar 
Ghose. High licence fees for broadcasting is 
therefore a denial of one's basic right. Ghose 
looks into the changing trends in state policy 
towards radio broadcasting

http://www.flonnet.com/

Vol:20 Iss:21 URL: http://www.flonnet.com/fl2021/stories/20031024001709500.htm

COLUMN

Broadcasting as a citizen's right

BHASKAR GHOSE

Using the airwaves to impart or receive 
information is a part of the fundamental right to 
freedom of speech and expression and charging 
exorbitant licence fees for radio broadcasting 
amounts to a denial of this right to 
public-spirited citizens.

STATE policy towards radio broadcasting has 
traditionally been schizophrenic. There has been 
one policy for All India Radio, a policy that has 
emerged over the years in which complete control 
has been tempered, to a greater or lesser degree, 
with a certain amount of freedom and discretion. 
This has varied with the kind of Minister in 
charge of Information and Broadcasting  -   the 
more enlightened ones have given AIR a degree of 
freedom and defended that freedom in public and 
in Parliament; others have claimed to do so and 
have actually done their best to make it a 
mouthpiece of the government. And there have been 
some who have made no bones about declaring it to 
be a government agency bound to propagate the 
views of the government.

But across the board the over-riding concern was 
to see that AIR broadcast programmes were 
informative and of a certain standard. True, it 
was the only medium-wave broadcaster and, 
therefore, had no competition. But even so, AIR 
did produce some memorable programmes. 
Practically, every Bengali of a certain age 
remembers Birendra Krishna Bhadra's Mahalaya 
programmes which he produced every year for 
several years, and has fond memories of waking up 
at 4 a.m. to listen to it. Most media watchers 
agree now that if classical music, both 
Hindustani and Carnatic, is popular today it is 
owing in no small measure to the regular 
broadcasts of programmes by the finest exponents 
of such music of those times.

The other kind of broadcasting policy has to do 
with the curious attitude to private radio 
broadcasters. Initially, the government allowed 
private broadcasters but in a very limited way  - 
they were allowed to use AIR transmitters for 
certain hours of the day and charged a hefty fee 
for doing it. They were not allowed to broadcast 
news and current affairs programmes; only 
entertainment  -   music, shows, radio plays and 
so on. The fees charged were exorbitant for 
reasons I could never understand. Naturally those 
who initially took the licences, perhaps excited 
at the prospect of being able to communicate to a 
very large audience, soon realised that the 
revenues that their broadcasts generated were not 
enough to make the ventures worthwhile. Gradually 
they closed down, one by one.

The government revised its policy thereafter, and 
recently gave licences to applicants who could 
broadcast programmes using their own 
transmitters; they were allocated certain FM 
(frequency modulation) bands and they did not 
have to depend on AIR transmitters. This change 
prompted a number of media houses and others to 
apply for licences. But, again, the fees charged 
were astronomical, and with even less 
justification than before. Earlier the Finance 
Ministry could justify the charges because the 
private broadcasters were using AIR equipment  - 
transmitters and related peripherals, and the 
rent for these, for the staff, charges for power 
and other facilities were sufficient to silence 
those of us who felt the private broadcasters 
were being fleeced.

But now it has no excuse for charging the 
exorbitant licence fees. The government provides 
nothing except the FM bands; that costs it 
nothing. So what exactly is it charging for? For 
the privilege of using the medium of radio to 
communicate with listeners? If that is the 
reason, the government needs to do its homework 
urgently, before it is asked to appear in court 
in a case that it is bound to lose.

The government needs to look at what the Supreme 
Court said in Civil Appeal Nos. 1429-30 of 1995 
The Secretary Information & Broadcasting, 
Government of India & Others vs Cricket 
Association of Bengal & Others with W. P. [Civil] 
No: 836 of 1993 Cricket Association of Bengal and 
Anr. vs Union of India and Others . The court 
said: "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 an 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."

The court went on to say that "the right to 
impart and receive information is a species of 
the right of freedom of speech and expression 
guaranteed by Article 19[1] (a) of the 
Constitution. A citizen has a fundamental right 
to use the best means of imparting and receiving 
information and as such to have an access to 
telecasting for the purpose." It is pretty 
obvious that this applies as much to radio 
broadcasting as to telecasting. But the 
implications of this ruling must be fundamental 
to the government approach to broadcasting.

The Supreme Court has said in clear terms that 
using the airwaves to impart or receive 
information is a part of the fundamental right to 
freedom of speech and expression. This means that 
the government cannot use the airwaves as a 
matter of right. Fundamental rights are those of 
citizens, not of institutions or administrative 
systems. They may use it, but only if permitted 
to do so by a lawful authority. It also means 
that the right can be abridged only by the 
provisions of Article 19 [2] that is, where 
security, public morality or decency and some 
other matters are concerned. In other words, 
access to the airwaves cannot be denied to a 
citizen except on these grounds.

The Supreme Court has, in the same judgment, 
directed the Union government to set up a public 
authority to regulate the use of the airwaves  - 
because there would be many wanting access but 
only a limited availability of frequencies  - 
`immediately'. That word has been construed very 
liberally by the government, to put it mildly; 
the judgment was passed in 1995. This is 2003 and 
no public authority has yet been set up; the 
government is itself performing the functions 
that the Supreme Court wanted the public 
authority to do.

Not only is the government doing that, it is also 
issuing licences to citizens to use the airwaves 
and charging them these astronomical fees, which 
are so high that you and I can never ever hope to 
obtain a licence. To make things worse, the 
government has attached all kinds of conditions 
to the licences  -   they cannot carry news 
bulletins, for example. This in spite of the 
Supreme Court's declaration that access to the 
airwaves is a fundamental right.

So who gets the licence? The privileged few who 
have the money to pay the huge licence fee, and 
who then use the licence to set up radio stations 
that are purely commercial in order to earn 
money. (That many of them are not earning as much 
as they would like to is beside the point.) And 
what if someone wants to set up a radio station 
to inform citizens, to create an awareness in 
them of social issues that are considered 
important and relevant? They cannot get a 
licence, because they cannot pay the fee, and 
they will not be allowed to broadcast the kind of 
programmes that they may want to  -   public 
service programmes. The government may say that 
Prasar Bharati is doing precisely that. It may 
well be doing it, but who gave it a monopoly on 
public service broadcasting? The government 
cannot even pass a law on the subject, given the 
fact that it will involve amending the 
Constitution, which this government is hardly in 
a position to do.

It is more than time that the government took a 
good look at its policy on radio broadcasting. 
And it is more than time that it took the Supreme 
Court judgment seriously and set up the public 
authority the court has directed the government 
to do, a body on the lines if the Federal 
Communications Commission in the United States, 
or the Broadcasting Authority in the United 
Kingdom. The government cannot pass a law saying 
that Prasar Bharati is exempt from applying for 
and taking out a licence; because it is an 
organisation and does not have the right that a 
citizen has.

So far no one has taken the government to court 
on this. But it should not count on this happy 
state of affairs continuing for very long. One 
day or the other someone will file a contempt 
case against the government and then it will have 
nowhere to turn. Unless it takes a good look at 
its policies immediately and ensures that access 
to the airwaves is what it was meant to be, and 
what the Supreme Court says it is  -   a 
fundamental right of a citizen of India.

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