Cricket, Corporations and Art. 19(1)(a)

What, you may well ask, has corporate law and business per se got to do with cricket? The answer is: a fair bit. From the legal status of the BCCI to alleged company law violations in the ownership structure of various IPL teams, and from broadcasting rights to copyright violations, there is a plethora of legal issues that operate at the interface of cricket, corporate law and business. In this post, I analyse what I consider amongst the most interesting controversies to have arisen in this area, and one bearing a close connection with the Cricket World Cup in particular.

Secretary, Ministry for Information and Broadcasting v. Cricket Association of Bengal was a case decided in 1995, when the immense commercial potential of TV broadcasting of cricket was perhaps just beginning to be tapped. Broadly, the Court was asked to rule upon, inter alia, whether Governmental agencies such as DD could claim a monopoly over airwaves – and thus, by implication, over the telecasting and broadcasting of a particular event (in the instant case, the live broadcasting of cricket matches organised by the Cricket Association of Bengal) – or, alternatively, did the organizer or the producer of the event have the right to select a broadcasting agency of his own choice?

The technical issues dealing with the limitations of available frequencies need not concern us here. What is important to note, however, is that the Court framed the debate in the language of an Article 19(1)(a) freedom of speech and expression violation, which was sought to be justified by recourse to Article 19(2). The Court held that undoubtedly, broadcasting came within the ambit of the protected freedom under Art. 19(1)(a). It went on to observe: “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.”

Addressing the Government’s argument about public interest, the Court pointed out, in a lengthy paragraph that deserves to be quoted in full:

“…the monopoly… 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 monopolise the dissemination of views and information… 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 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…. 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.”

Furthermore, although under the Telegraph Act the Central Government did have the power to grant licenses for the utilization of the electro-magnetic waves below certain frequency levels, even this power was held to be subject to the freedom of expression under Art. 19(1)(a), and therefore only permissible if any of the criteria set out in Art. 19(2) was complied with.

On the side of the State, it was argued that this was a purely commercial matter, and therefore Art. 19(1)(g) was attracted, giving the State a wider latitude to regulate its distribution of licenses. It is interesting to note that the Court rejected this argument on two grounds: first, that sport was a form of expression, and dissemination of information about sport was also a part of the freedom of expression; and secondly, that the character of the telecasters, i.e. the BCCI and the Cricket Association of Bengal, was that of non-profit organizations seeking to popularize the game of cricket through the best possible methods. Indeed, the Court expressly distinguished the case of a purely profit-making organization, and an organization whose primary function involved an incidental inflow of profits.

The Court went on to hold, consequently, that the Cricket Association of Bengal had the right to enter into contracts with non-Doordarshan broadcasters to telecast the cricket matches in question.

In sum, therefore, this case raises the following two points for consideration: first, that the airwaves involved in telecasting and broadcasting through TV were held to be “public property”, and therefore subject to regulation; secondly, that in light of Art. 19(1)(a), such regulation could only be carried out under one of the permitted constitutional grounds under Art. 19(2). However, this entire framework was applicable only applicable when the telecaster was not primarily a profit-based entity.

Since the time of this case, however, the law has traveled a fair distance. The Courts are now far more lenient towards considering commercial speech to be a part of the right to freedom of speech and expression under Art. 19(1)(a), and are also more sympathetic to protecting speech one of whose primary purposes may be profit-making. The realities of broadcasting have also changed, with several players now being part of the market, some of whom undoubtedly are predominantly commercial in nature. What, for instance, would be the position of the Court if the State sought to regulate or restrict the coverage of the IPL, which is admittedly a commercial enterprise? Can foreign broadcasting companies claim a violation of the constitutional rights of viewers if the State restricts their entry into the market? All these questions, it is submitted, have been left open by the fairly ambiguous manner in which the Court has located cricket broadcasting within the contours of Art. 19(1)(a) of the Constitution!