An appeal by the Indian Broadcasters Federation and the Producers Guild against a recent ruling by the Bombay High Court (HC) on the new tariff rules by TRAI, hinges on the argument that it curtails freedom of speech and expression under the guise of public interest.
“The regulators like TRAI may be empowered to create many restrictions using the broad and subjective grounds of public interest – a slippery slope which was deliberately kept away from the fundamental right of speech and expression when the constitution was drafted. It would be one of the key arguments in the SC,” said Abhishek Malhotra, Managing Partner, TMT Law Practice.
TRAI recently revised the tariff on broadcasting channels and imposed a monthly cap of ₹12 per channel against the earlier cap of ₹19. According to lawyers, the ruling by the Bombay HC, which upheld TRAI’s move, was done citing public interest that could now embolden even other regulators in imposing caps over tariffs.
It is feared that this may have wide ramifications for the larger creative industry and equally for the individuals.
Vivan Sharan, an economist covering the media and entertainment industry said, “Broadcasters contend that content bundling restrictions impact their fundamental right to free speech under Article 19(1)(a). A 1995 judgment of the SC highlighted that this right must be read through the lens that airwaves are public property and a limited resource i.e. government has a right to restrict access by way of licensing. However, the Bombay HC has conflated the State’s prerogative to licence and control access, with the ability to regulate prices. This has wide economic implications since many sectors rely on scarce public resources such as land, water and so on.”
As per the Article 19(2) of the Constitution, the eight specified grounds that permit regulation of freedom of speech and expression include interests of the sovereignty and integrity of India, defamation, incitement to an offence whereas ‘public interest’ does not form part of that or even make a reference to ‘public interest’ as a permissible ground to restrict freedom of speech & expression in any manner.
“The findings are premised on the Ministry of Information & Broadcasting v Cricket Association of Bengal (CAB) judgment of the Supreme Court, which has been misread by the Bombay HC. The judgment dealt with a central government agency’s (MIB) refusal to sanction the use of private satellite frequency for airing a certain cricket event. The CAB took the issue to the Supreme Court which opined that while there may be an element of ‘public interest’ in the allocation/disposal of scarce public resources such as airwaves, it does not in any manner result in expanding the limited 8 exceptions to the ‘freedom of speech and expression’ as covered in Article 19(2),” Malhotra said.
The new MRP regime for broadcasting channels, while introduced in 2017 for the first time, leading to a complete change in the manner in which the broadcasting industry operates, was only made operational in March 2019.
Thus, when the TRAI initiated the consultation process in August 2019 with a view to bringing about the challenged amendments, it hardly had any basis/opportunity to study the market to assess whether, if at all, there was any impact upon the consumers/public interest, lawyers said. The Hindu BusinessLine