* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision:
3. d December, 2014. % + WP(C) No.3252/2014 SAI LOK KALYAN SANSTHA THROUGH PRESIDENT ..... Petitioner Through: Mr. Ajay Gautam (in-person) Versus UNION OF INDIA & ORS. Through: ..... Respondents Mr. Amit Mahajan, CGSC /UOI. Ms. Zubeda Begum, Standing Counsel for GNCTD. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW RAJIV SAHAI ENDLAW, J.
1. This petition under Article 226 of the Constitution of India filed as a Public Interest Litigation flags the issue of broadcast of a large number of programmes/advertisements on the television channels based on Astrology, ‘Lal Kitab’, Tarot, Numerology, ‘Devi Shakti aur Kripa’, by so called self made astrologers, ‘swamiji’, ‘panditji’, ‘guruji’ and ‘babaji’ who promise cures of various ailments on payment of money. Alleging such claims to be not based on any logic and scientific verification and being detrimental to public interest, reliefs of :– i. directing the respondents Union of India, Government of National Capital Territory of Delhi and News Broadcasters Association to establish a regulatory mechanism to regulate or monitor the broadcasting of programmes related to astrology etc. and magic cures of diseases and bad omen; and, ii. prohibiting the broadcasting of such programmes till such mechanism is put into place; are claimed.
2. The petition came up first before us on 21st May, 2014 when the counsel for the Ministry of Information and Broadcasting, Government of India undertook to place before us the Programme Code for monitoring the broadcasting in Electronic Media.
3. The counsel has today handed over in Court the ‘Code for Self- Regulation in Advertising’ as prescribed by The Advertising Standards Council of India and a copy of the Advisory dated 21st August, 2014 issued by the Ministry of Information and Broadcasting. Though we drew the attention of the counsel to the policy guidelines formulated by the Ministry of Information and Broadcasting for downlinking of all satellite channels downlinked/received/transmitted and re-transmitted in India for public viewing but he was not aware of and had no instructions with respect thereto. We have also heard Mr. Ajay Gautam, President of the petitioner appearing in person. He has drawn attention to the order dated 29 th August, 2012 of the Division Bench of this Court in WP(C) No.2954/2012 titled A.K. Jain Vs. Union of India directing all the concerned authorities to take remedial action to prevent publication of advertisements and telecast of programmes endorsing magic remedies / cures. He has contended that inspite of direction of this Court in the said order, no action has been taken.
4. We are of the view that there is no need to issue notice of this petition or to otherwise keep the same pending.
5. In view of the haphazard mushrooming of cable television networks all over the country as a result of the availability of signals of foreign television networks via satellites and which was perceived in many quarters as a "cultural invasion" since the programmes available on these satellite channels were predominantly western and totally alien to the Indian culture and way of life, and finding that subscribers of the said cable television networks, the programmers and the cable operators themselves were not aware of their rights, responsibilities and obligations in respect of the quality of service, technical as well as content-wise, use of material protected by copyright, exhibition of uncertified films, protection of subscribers from anti-national broadcasts from sources inimical to our national interest etc. and yet further feeling the need to regulate the operation of cable television networks in the country so as to bring about uniformity in their operation, the Cable Television Networks (Regulation) Act, 1995 was enacted.
6. Section 5 of the said Act prohibits the transmission or re-transmission through a cable service of any programme unless such programme is in conformity with the prescribed Programme Code. Section 19 of the Act provides for prohibition of transmission or re-transmission of any programme or channel, in public interest, if it is inter alia not in conformity with the prescribed Programme Code referred to in Section 5. Section 20 empowers the Central Government to, if it thinks it necessary or expedient so to do in public interest, prohibit the operation of any cable television network in such areas as it may specify, by notification in the Official Gazette. It also empowers the Central Government, if it thinks it necessary or expedient so to do inter alia in the interest of public order, decency or morality, to by order, regulate or prohibit the transmission or retransmission of any channel or programme.
7. The Programme Code referred to in Section 5 of the Act, is contained in Rule 6 of the Cable Television Networks Rules, 1994 and prohibits programmes from being carried in the cable service which inter alia offend good taste or decency, contain anything obscene, denigrate women through the depiction in any manner of the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent, or derogatory to women, or is likely to deprave, corrupt or injure the public morality or morals, contravene the provisions of the Cinematograph Act, 1952 or are otherwise not suitable for unrestricted public exhibition.
8. With the advent of technology enabling individual homes and other establishments to, instead of via cable, directly download satellite television channels, the Ministry of Information and Broadcasting formulated policy guidelines supra for downlinking of all satellite television channels downlinked / received / transmitted and re-transmitted in India for public viewing. The same provide that no person / entity shall downlink a channel, which has not been registered by the Ministry under the said guidelines. Accordingly, all persons / entities providing Television Satellite Broadcasting Services (TV Channels) uplinked from other countries to viewers in India as well as any entity desirous of providing such a Television Satellite Broadcasting Service (TV Channel), receivable in India for public viewership, is required to obtain permission from the Ministry in accordance with the said guidelines known as the Downlinking Guidelines. Clause 5 of the said guidelines prescribing basic conditions / obligations, inter alia provides that the company permitted to downlink registered channels shall comply inter alia with the Programme Code aforesaid. Clause 6 of the said Guidelines prescribing offences and penalties inter alia empowers the Ministry of Information and Broadcasting to impose penalty inter alia of suspension of the permission / registration granted thereunder and prohibition of broadcast up to a period of 30 days inter alia in public interest.
9. Not only so there also exists a Broadcasting Content Complaints Council (BCCC), a self regulatory body of the television broadcasters.
10. Similarly, The Advertising Standards Council of India to whose Code for Self-Regulation in Advertising the counsel for the respondent Union of India has drawn attention, is also a voluntary self regulation council to control the content of advertisements. The copy of the Advisory dated 21 st August, 2014 (supra) handed over also mentions the existence of Consumer Complaints Council (CCC) to deal with the violations inter alia of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 and mentions that with respect to the violations of the Advertising Code, complaint can be filed with the said Council. Infact, Annexure I to the said Advisory is a list of advertisements which were found violating the Advertising Code; in the said list mention is found of broadcast of advertisements of skin fairness cream / yantra / black magic/magical curing of ailments/ vehicle mileage plus/hair growth/slimming/weight loss/anti addiction etc.
11. It is thus not as if there is no regulatory mechanism in place, necessitating for this Court to issue a direction for establishment thereof as is sought in the petition.
12. However when we drew the attention of the petitioner thereto, he in turn drew attention to a large number of representations/complaints filed by him with the Union of India and the Prime Minister’s Office and with the GNCTD in this regard and laments that no action was taken thereon.
13. It is for the aforesaid reason that we have not deemed it appropriate to keep this petition pending. It appears that various representations / complaints of the petitioner have not reached the appropriate / concerned regulatory body and all that needs to be done is to direct such regulatory body to consider the grievances and complaints of the petitioner in accordance with the procedure and law applicable thereto.
14. We may notice that the permission given by the Ministry of Information and Broadcasting of the Government of India to various entities for uplinking / down-linking of signals also is subject to terms and conditions and one of the terms and conditions is to abide by the Programme Code and the directions given from time to time. We may further record that violations of uplinking / downlinking Guidelines are decided by InterMinisterial Council (IMC).
15. Reference in this regard may also be made to Sections 19 and 20 of the Cable Television Networks (Regulation) Act (supra) which empower the authorised officers under the said Act to, in public interest, prohibit any cable operator from transmitting or re-transmitting any programme or channel if, it is not in conformity with the prescribed Programme Code and Advertisement Code.
16. Similarly, Section 20 empowers the Central Government to inter alia in the interest of public order, decency or morality, by order, regulate or prohibit the transmission or re-transmission of any channel or programme. Section 6 of the said Act prohibits any person from transmitting or retransmitting through a cable service any advertisement unless such advertisement is in conformity with the prescribed Advertisement Code. Advertisement Code is prescribed in Rule 7 of the Rules supra and provides that advertisement carried in the cable service shall be so designed as to conform to the laws of the country and should not offend morality, decency and religious susceptibilities of the subscribers. Sub-Rule (2) of Rule 7 prohibits advertisements which contain reference which are likely to lead the public to infer that the product advertised or any of its ingredients has some special or miraculous or super-natural property or quality, which is difficult of being proved; sub-Rule (9) thereof also prohibits advertisement which violate the Code for self regulation in advertising as adopted by the Advertising Standards Council of India. The said aSCI Advertising Code supra also relates to some of the matters of which grievance is made in the petition.
17. It would thus be apparent from the above that the petitioner is required to either approach the Ministry of Information and Broadcasting or the Advertising Standards Council of India or the Broadcasting Content Complaints Council or the authorised officer under the Cable Television Networks (Regulation) Act for the redressal of his grievance.
18. Various fora / avenues / regulatory bodies being already in place, the question of our issuing any direction for establishment thereof or of prohibiting any programme/advertisement does not arise. It is for the said appropriate forum to decide the complaint of the petitioner.
19. Before parting with the matter, we may record that as far as the complaint of the petitioner, of the programmes based on astrology are concerned, the Legislature / Government having laid down the Programme Code and the Advertising Code, it is not in the domain of this Court to prescribe as to what the Code should be. Moreover, as far as astrology is concerned, astrology / zodiac / prediction / forecast are to be found not only on the television but also in the print and news media. Astrology is a subject being taught in the Universities and is not confined to India alone. In fact the most popular international publication on ‘forecast’ is of a foreign author named Linda Goodman. We therefore do not find it appropriate to also prohibit astrological programmes / advertisements to the extent they are not in violation of the Programme Code and the Advertising Code.
20. We have set out hereinabove in detail the various mechanisms for the guidance of the petitioner. It goes without saying that upon the petitioner making a grievance / complaint in accordance therewith, we expect the concerned authority or agency shall consider and deal with the same expeditiously. The petition is disposed of. RAJIV SAHAI ENDLAW, J.
CHIEF JUSTICE DECEMBER03 2014 M..