Broadcasters pin hopes on SC to correct Bombay HC's 'public interest' ruling on NTO 2.0

Concerned over the wider implications of the Bombay High Court's ruling in the challenge to the new tariff order (NTO) 2.0 case, the broadcasters are hoping for the Supreme Court's intervention in the matter. The Indian Broadcasting Foundation (IBF) has already challenged the Bombay High Court order in the SC with other broadcasters expected to follow suit.

The bench of Justices AA Sayed and Anuja Prabhudessai in its 157-page order had noted that tariff fixation is part of regulatory powers of TRAI and is conceived in public interest. It also stated that TV broadcasting is an integral part of Article 19(1)(a) and broadcasters have a fundamental right to freedom of speech and expression. However, it added that the said right to free speech and expression is not absolute. It also said that the drop in reach or viewership of channels due to stipulations of TRAI cannot be seen as an infringement of fundamental rights of broadcasters.

While arriving at this conclusion, the High Court appears to have relied on the judgment pronounced in MIB vs Cricket Association of Bengal (decided by the Supreme Court in 1995) to read ‘public interest’ into Article 19(2). According to legal experts, this is not a correct reading of the MIB vs CAB judgement.

The TV broadcasting industry is worried that the Bombay HC ruling gives unbridled powers to TRAI in the name of imposing reasonable restrictions in public interest. The broadcasters fear that the TRAI might use the public interest argument to further bring down MRP and place additional restrictions on bouquet creation in case the price of monthly TV bills see an increase.

The broadcasters contend that 'public interest' cannot be a ground for restricting free speech since Article 19(2) of the constitution sets out eight specific grounds under which ‘freedom of speech & expression’ can be regulated by a law which is reasonable.

"The Bombay High Court has relied on the CAB vs MIB case to say that freedom of speech and expression can be curtailed in the larger public interest. That is the main substantive point which has to be settled by the Supreme Court. The 2007 judgement of Justice Vikramajit Sen had said that the broadcasters don't have freedom of speech and expression under Article 19(1)(a). So the Delhi HC had denied 19(1)(a) while Bombay HC has granted that freedom but has taken that away by saying that reasonable restriction can be imposed in the larger public interest," said a lawyer involved in the matter on condition of anonymity.

He further stated that if the Supreme Court approves this finding then it would have far-reaching consequences not just for broadcasters but for anything that is electronically disseminated over the airwaves. "The logic is that because broadcasters use airwaves which is a public property therefore in larger public interest reasonable restrictions can be imposed. In its jurisprudence, the Supreme Court has held that freedom of speech and expression is a higher right than all other fundamental rights, and it cannot be restricted in the public interest."

To bring home the point, the lawyer gave an example of news. He said that if the news is circulated through a newspaper then that cannot be curtailed but if the same news is transmitted through a news channel then it can be curtailed. "So pricing and bundling restrictions are a way in which TRAI is controlling the speech," he noted.

He also said that 19(1)(a) can't be curtailed in public interest. It can only be curtailed in one of those eight specific grounds mentioned in Article 19(2) which is sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, and defamation or incitement to an offence.

Another lawyer involved in the matter concurred that the primary concern of the broadcasters is the misinterpretation of the contours of the right to freedom of speech and expression. "The crux of the order is that public interest is an additional condition to reasonable restriction in addition to the eight conditions that have been set out in Article 19(2). The court has included one more condition to justify TRAI's actions," he stated.

The IBF, he said, has a very strong case on the issue of freedom of speech and expression. "So the Bombay HC has said that the TRAI can, in public interest, demand that MRP should be brought down to Rs 12 from Rs 19, and bouquets should not be offered. So that is the biggest issue because if that is allowed then where do you stop. Today, it has been brought down to Rs 12 in public interest tomorrow it will be brought down to Rs 5."

The lawyer also noted that the twin conditions were not put in the consultation paper in the manner in which they were put in the tariff order. The consultation process requires a specific disclosure in a transparent manner. "Bombay HC has blindly relied on TRAI's explanatory memorandum. They have asked broadcasters why Rs 12 is unreasonable which is not fair since this is something which the TRAI should answer. We were arguing that Rs 19 should be allowed to continue since it has been fixed after a long period of time after having a proper consultation with even the Supreme court upholding the cap."

According to a TV broadcasting executive, the price of TV subscription will increase because the main aim of the TRAI is to push à la carte offerings. "Broadcasters will keep the prices of popular channels at Rs 12 to include it in the bouquet. There will be a price hike as happened in 2019 because of TRAI’s push on making à la carte channels available rather than bouquets which makes the channels affordable. As happened earlier, both broadcasters and TRAI will be blamed for the price hike, whereas the hike happens at the DPO level."