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Petitioner: MUHAMMAD ASLAM SALEEIVII, ADVOCATE VS Respondent: THE PAKISTAN TELEVISION JUDGMENT
Court Name: Lahore High Court Judge(s): Nasim Hasan Shah, Aslam Riaz Hussain, Karam Elahi Chauhan Title:MUHAMMAD ASLAM SALEEIVII, ADVOCATE vs THE PAKISTAN TELEVISION
JUDGMENT
Reported As: PLD 1977 Lahore 852 Result: Declared accordingly Judgment JUDGMENT ASLAM RIAZ HUSSAIN, C. J.-This constitutional petition under Article 199 (1) (a) of the Constitution of Pakistan, 1973, has been filed by Mr. Muhammad Aslam Salami, who besides being an Advocate, a citizen and a tax-payer is also an office-bearer of the Jamaat-i-Islami (Para, 1 of the petition) which is one of the members of an Alliance formed by nine political patties who are contesting the forthcoming general elections jointly. (Ref. Para. 7 cf the petition). The said Alliance is known as Pakistan National Alliance (hereinafter called the P. N. A. Or the Alliance). The respondents in the writ petition are : (1) the Pakistan Television Corporation, Lahore, and (2) the Pakistan Broadcasting Corporation, Lahore. After hearing the learned counsel for the parties at length we had passed a short order on 2-3- 1977, to the following effect : "For the reasons to be recorded later, the writ petition is accepted in terms that the respondents are directed to do what they are required to do by law, viz., "Maintain balance" in the news and other programmes relating to the election campaign of the various political parties or groups of such parties, including the Pakistan National Alliance, participating in the forthcoming election, bring to public awareness the wide range of the significant activity of the aforementioned election campaign and to present the news in relation thereto in as factual, accurate and impartial a manner as possible. Although the discretion with regard to editing of the news etc., in the very nature of things must rest with the relevant functionaries of the respondent-Corporations, yet (unless specifically directed by the Government to act in a particular manner, in exercise of its power under clause (f) of section 10
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(1) or of subsection (2) of section 10 of the Pakistan Broadcasting Act (XXXII) of 1973, or of clause (3) of Article III of Memorandum of Association of the Pakistan Television Corporation), for the purpose of maintaining balance and impartiality it is directed that- (a) equal time, as far as possible, should be given to the activities with regard to the election campaign to the two major participants is the elections, i.e , The Pakistan People's Party and the Pakistan National Alliance in their daily news bulletins ; (b) permit the representatives of the Pakistan National Alliance to televise and broadcast the Manifesto of the said Alliance and address the Nation over their systems whenever the representatives of the Pakistan Peoples Party are permitted to do so, and (c) (i) either refrain from expressing any views on the election issues through its commentators (ii) or do so with respect to both the above-named participants, Also, while telecasting or broadcasting news about the various public meetings held by the contesting parties named above, either the live voice of an equal number of political leaders of each side addressing public meetings should be given or, in the alternative the voice of no one from either side should he broadcast live, unless, of course the Prime Minister of Pakistan addresses the Nation in his capacity as such, (in contradistinction to his capacity as the Chairman of the Pakistan Peoples Party when he addresses public gatherings in connection with the election campaign of his party), on any important national issue, including the conduct of the forthcoming elections, or any other important matter concerning the country or the Nation at large. Parties to bear their own costs." 2. We now proceed to give the facts of the case and the reasons for our above-noted order. The petitioner's main grievance is that the two respondents who have the sole monopoly of television and radio broadcasting and are the principal news media for the dissemination, inter alia of news etc. With regard to activities relating to the election campaign of the various contesting patties to the people of the country at large and are run and controlled by the Government of Pakistan, have not been acting impartially and fairly in projecting the news with regard to the election campaign of the P. N. A. And have been evidently discriminatory and biased in favour of the ruling party i.e. The Pakistan Peoples Party (hereinafter called the P. P. P.) 3. It was submitted by the learned counsel for the petitioner that each day a substantial part of the news bulletin is devoted to the activities of the P. P. P. Leaders in connection with their election campaign, while much less time is allocated to similar activities of the leaders of the P. N. A. A grievance was also made that while live voice of the Chairman of the P. P. P. Is broadcast on the television as well as the radio, only still pictures of the leaders of the P. N. A. Are shown on the television, but their voice is not broadcast and, instead, only the substance of their speeches is narrated by a commentator which, too, according to the learned counsel for the petitioner, is not accurately reported. It was also alleged that while the manifesto of the P. P. P. Was broadcast on the Pakistan Television and Radio, the manifesto of the P. N. A. Was not similarly read out, and further, while the names of all the candidates of the P. P. P. Were broadcast, the names of the persons who were given tickets by the P. N. A. Were not so broadcast. It was also submitted that the activities of the P. N. A. In connection with its election campaign are not being projected properly to the people of Pakistan and that this display of bias and discrimination was doing incalculable harm to the cause of the Opposition. The petitionsr, therefore, prayed that (a) directions be issued to the respondents to provide equal time to the spokesmen of the Pakistan Natitional Alliance as they are provi ling to the Pakistan People's Party both in ralation to the new business as well as the features: (b) to televise and broadcast the lists of the candidates of the National Alliance who have been awarded tickets
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(c) to permit a representative of the National Alliance to televise and broadcast the election manifesto and to address the Nation over their systems as frequently as the Peoples Party representatives do and, (d) to refrain from expression of any views by its own commentators on either the conduct of the election or on the election issues, leaving it to the contesting parties to influence the doctorate by live broadcasts, in the same manner as the Chairman of the Peoples Party and other members of his Cabinet have been doing over the last few years in general and since the announcement of the elections in particular. 4. The case was, at first, put up before a Division Bench which recommended that since the case involved a matter of general public importance, it may be placed before a larger Bench. A Full Bench was accordingly, constituted which admitted the case for a full bearing on the 25th and issued a notice to the respondents for the 28th of February 1977. On that day (i.e. 28.2-1977) the learned Deputy Attorney-General appeared for the two respondents and filed a joint written statements on their behalf, alongwith affidavit's of certain officials of the two respondent Corporations, as well as 8 photostat copies of news items which had appeared in various local dailies. ' In the written statement, the learned Deputy Attorney-General took up a number of preliminary objections, out of which he pressed the following : (1) That the petitioner not being an aggrieved person has no locus stand' to file the petition and also that he has no authority for the P. N. A. To file the petition. (2) That the Election Commission has the exclusive jurisdiction to hear and decide such matters. (3) That the petition is mala fide and has been filed for ulterior purposes. 1. As to the first preliminary objection taken up by him (namely, that the petitioner had no locus standi to file a writ petition) he submitted that since the petitioner is not a candidate, and has no personal interest or right in the subject-matter, he is not an "aggrieved" person and cannot, therefore, seek the remedy under Article 199 (1) (a) (1) merely on the basis of his being a 'citizen' or a 'tax payer'. He submitted further that to be an "aggrieved" person within the meaning of Article 199 (1) (a) of the Constitution, a person must have a legal right of enforcing the performance of a duty ; that he must show a direct personal interest in the performance of that duty as distinguished from a general interest which he shares with a large number of other members of the public. In support of this contention he relied on Zahoor Elahi v. Director Anti-Corruption Establishment and 2 others an Muhammad Yunus v. Islamic Republic of Pakistan. ' The learned Deputy Attorney-General also argued that the petitioner had not shown that he had been duly authorised by the P. N. A., for whom he is claiming the reliefs, to file a writ petition. 6. Learned counsel for the petitioner controverted the above-noted preliminary objection and submitted that. Muhammad Aslam Salimi, petitioner is not only a citizen or tax payer, but is also an important office bearer (Assistant Secretary General) of a well-known political party (Jamaat- iIslami), which is, admittedly, a member of the P. N. A. And as such has a direct personal interest in the matter in which the two news me la, which are public services, are performing their functions and has a right to enforce the performance of their duties by them. He submitted that the two respondent-Corporations are bound, under their charters to act impartially and fairly and maintain a balance in the broadcast of news disseminated by them with regard to significant national activities. In this connection he submitted that the Pakistan Broadcasting Corporation is a Statutory Corporation set up under section 3 of the Pakistan Broadcasting Corporation Act (XXXII), 1973 (hereinafter called the Act). He referred to section 10 (1) of the said Act which enumerates the functions of the Broadcasting Corporation. ' Learned counsel for the petitioner made a pointed reference to clause (e) of section 10 (1) of the Act which enjoins upon the Broadcasting Corporation1 2
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"to bring to pablic awareness the whole range of significant activities and to present news or events in as factual, accurate and impartial a manner as possible." ' He also referred to clause (2) of Article III of the Memorandum of Association of the Pakistan Television Corporation which provides inter alia that the Pakistan Television Corporation should maintain 'balance' while telecasting its programmes. He submitted that the expression 'maintain balance' used in clause (2) referred to above must, in the context, be taken to have the same meaning and to have imposed the same duty on the Pakistan Television Corporation, as the provisions of clause (e) of section 10 (1) of the Pakistan Broadcasting Act of 1973 had placed on the Pakistan Broadcasting Corporation. He submitted further that the two authorities cited by the learned Deputy Attorney-General are distinguishable as they are based on different facts and the principle enunciated therein is not applicable to the facts of the present case. He also contended that the petitioner bad a right to file a writ petition, not only on behalf of his own party (i.e. Jamaat- iIslami) but also on behalf of P. N. A., of which his own party is an important member, In this connection he also referred to a photostat copy of an express telegram sent to the General Manager and the Station Director, respectively, of the two respondent-Corporations, jointly by Wazir Ali, an office holder of the Tehreek-i-Istiqlal and Mr. Muhammad Aslam Salimi, petitioner, who is an office holder of the Jamaat-i-Islami, protesting that they were not acting impartially and fairly. The counsel also submitted that it was evident from the address given underneath the telegram that it had been sent from the office of the P. N. A., which is situated at 33-Davis Road, Lahore. As such the petition must be deemed to have been filed with the consent of the P. N. A., who have not, so far disclaimed it. 7. We have carefully considered the contentions of the learned counsel for the parties, on the 1st preliminary objection i.e. That the petitioner is not an "aggrieved party" within the meaning of Article 199 (I) (a) of the Constitution. It is correct that the said clause of Article 199 (1) requires that an application under the said Article must be by an aggrieved party, but we are of the view that the meaning of the expression 'aggrieved party' in Article 199 has to be construed in the context of and on the facts of each case. ' In the case of Ch. Zahoor Elahi the facts were that he (i.e. Ch. Zahoor Elahi) sent a report to the Director Anti-Corruption Establishment, containing allegations of corruption, nepotism and other criminal malpractices, against Mr. Ghulam Mustafa Khar who had held the offices of a Governor and Chief Minister of Punjab, and was still a member of the Provincial Assembly, requiring the said Director to register a case, conduct investigation and submit the challan in a Court of competent jurisdiction. It appears that the Director, Anti-Corruption and the Chief Secretary (respondents Nos. 1 and 2 respectively) did not take the required action. Ch. Zahoor Elahi, thereupon, filed a writ petition seeking a direction in the nature of mandamus against the Director, Anti-Corruption Establishment, Lahore, requiting him to complete the investigation and submit his final report (under section 173, Cr. P. C.) to the Special Judge, Anti-Corruption, on the charges levelled by him against Malik Ghulam Mustafa Khar (respondent No. 3). Prom the facts of that case as mentioned above, it is evident that the petitioner, in that case, had utterly failed to show that he had any direct interest in the performance of their duties by respondents Nos. 1 and 2 in connection with the prosecution of Malik Ghulam Mustafa Khar, respondent No. 3. As such the learned Division Bench, which heard the case rightly held that he had no locus standi to file the petition in question. ' In the case of Muhammad Yunus v. Islamic Republic of Pakistan, the facts were that the Government decided to auction a certain property which had been declared to be enemy property and invited tenders for that purpose. Muhammad Yunus, petitioner, offered a bid of Rs. 15 lass, while the National & Grindlays Bank (Lloyds Branch), Lahore, respondent, gave a higher bid of Rs. 17 lacs. The petitioner represented to the Secretary and the Custodian, Enemy Property Management3 4
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Board, Government of Pakistan, that the respondent No. 4 being a foreign banking institution, was not eligible under the instructions issued in connection of the auction and requested that the offer or bid of the Bank should, therefore, be rejected. The Custodian Enemy Property, instead of taking action on the representation filed by the petitioner, returned, through a cheque, the money deposited by him as earnest money. The petitioner (Muhammad Yunus) filed a writ petition, praying that the disposal of the property in dispute in favour of the respondent-Bank be declared to be without lawful authority. On the question as to whether or not Muhammad Yunus had the locus stand! To challenge the impugned sale, it was argued on his behalf that he (i.e. The petitioner) was an aggrieved party because he was a citizen of Pakistan and was paying income- tax to the Government, it was held that he had no personal or "legal" right in the property in question merely because be had made a bid in the auction, because according to general principles of Law of Contract the submission of a tender or bid is merely an offer for the purchase of property, which may or may not be accepted. It is on these facts that the Court held that being a citizen or a taz-payer did not, by itself, confer a legal right on him to challenge the impugned order and as such he was not an aggrieved party. 8. It would be noticed that in Ch. Zahur Elahi's case mentioned above the petitioner had no direct personal interest in the matter and appeared merely to be acting as probono publico while in the second case the petitioner had no legal right to claim the property in question. It may, however, be mentioned that in another case involving the rejection of the petitioner's bid in an auction, the Supreme Court of Pakistan held that the highest bidder whose bid had not been accepted was an 'aggrieved party'. In this behalf reference may be made to Arsalla Khan v. Bashi, Ahmad Blour. ' Moreover, the scope and the nature of the matters in issue in the two cases cited by the learned Deputy Attorney-General was very limited. In Ch. Zahur Elahi's case the petitioner merely wanted his political adversary to be prosecuted and in the case of Muhammad Yunus, the question involved was merely as to whether his bid should be accepted in preference to that of the respondent Bank. ' In the present case, however, the activity involved I e. The campaign for the forthcoming general elections, has a much wider scope and encompasses almost the entire Nation. The election fever is high and the election campaign is at its pitch in every Province, region, town, village and hamlet of the country. Almost every adult in the country would be directly and vitally affected by the results of the election, which is first of its kind being held in the country by a civilian Government. The two major contenders for power are locked in combat with each other in an intense election campaign and a crucial struggle for influencing the people and winning-over the voters is in progress. A number of means are being adopted by both the sides e.g. Public meetings are being addressed by leaders of each side ; huge processions are taken out by them ; propaganda announcements are being made on loudspeakers carried on taxi-cabs ; slogans are being shouted, manifestoes are being advertised in the press ; posters are being pasted, banners and flags are being put up and pamphlets are being distributed. But due to the technological progress made during the last 30 years, radio and television have become the most formidable instruments of propaganda, which enable the candidates for political office to reach extremely large number of people in the shape of local or national audiences. These media have played an increasingly important part in the election process during the post-war era, not only in America and European countries but also in our own country, where the meetings of Field Marshal Muhammad Ayub Khan and Miss Fatima Jinnah with the electorate were broadcast on the radio in their entirety, in the 1964 elections, and similarly, the head of every important political party was given more or less equal time to address the Nation on the television, in the 1971 elections. As already mentioned, the petitioner, is an office bearer of the Jamaat Islam which is one of the important members of P. N. A. The said Allis is seriously involved in the election struggle and it5
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cannot be said that the petitioner has no direct personal interest in the manner in which the two media i.e. The respondent-Corporations are projecting the election campaign of all the contesting parties. If the respondent-Corporations are projecting the election campaign of the P. N. A. In a partial, one-sided or unfair manner, the interests of the petitioner, who wants to see his party or the Alliance to succeed, are definitely hit. The mere fact, that the interests of a large number of other citizens or political persons are also being hit in the same manner, or many other persons share the petitioner's grievance cannot, in the above-mentioned circumstances be made the basis for asserting that since he is not alone in having a keen interest in the matter but shares the same with thousands of other persons, he has no locus stand) to file a petition under Article 199. ' We also feel that there is no force in the contention that it is only 'candidate' contesting the election who can, in the circumstances mentioned above, pray for a direction in the nature of mandamus. If that was so, it could be argued that Mr. K. M. Gandhi who was not himself a candidate in the 1946 elections had no interest whatsoever in the success of the candidates put up by the Indian National Congress in the said elections or that Maulana Abual A'ala Maudoodi, who is not himself a candidate in the present elections, has no personal or direct interest in the fate of the P. N. A. Candidates in the present election. 9. In the light of the above discussion, we are of the view that in the peculiar circumstances mentioned above the petitioner in the present case is an "aggrieved" person within the meaning of clause (a) of Article 199(1) of the Constitution of Pakistan and, as such, has the locus standi to file the present petition. 10. We are not inclined to agree with the contention that the petitioner is not authorised to file the present writ petition because not only his own party is a member of the Alliance but, as submitted by the learned counsel for the petitioner, a telegaram sent jointly by the petitioner and the Secretary of the Tehreek-i-Istiqlal from the office of the Affiance to the General Manager and the Managing Director of the two respondent-Corporations, respectively, shows that the petitioner's party and the Alliance had the common interest in the maintenance of balance and impartiality in the dissemination of news about its election campaign. Nor has the said Alliance disowned the writ petition till now, despite having knowledge about it through the press. This clearly shows that the petition was filed with the consent and concurrence of the Alliance and on its behalf. 11. With regard to the next preliminary objection, the learned Deputy Attorney-General argued that the Election Commission constituted under Article 218 of the Constitution has the exclusive jurisdiction to hear and adjudicate upon matters relating to the conduct of election. In this connection he referred to Article 218(3) of the Constitution and clause (c) of section 103 of the Representation of the Peoples Act (LXXXV) of 1976. These provisions may be reproduced here for facility of reference:- ' Article 218(3) ; "It shall be the duty of the Election Commission constituted in relation to an election to organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against." ' Section 103(c) of Act LXXXV of 1976 "Issue such instructions and exercise such powers, and make such consequential orders, as may, in its opinion, be necessary for ensuring that an election is conducted honestly, justly and fairly, and in accordance with the provisions of this Act and the rules." ' The learned Deputy Attorney-General then argued that not only is it the exclusive function of the Election Commission to organize and conduct the elections but it is also the duty of all executive authorities in the country to assist the Commission and the Election Commission in the discharge of his or their functions and the relevant executive authorities are bound in law to carry out the
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directions given by the Commission for that purpose. In this connection he referred to Article 220 of the Constitution and section 104 of the Representation of the Peoples Act, 1976. These, too, may be reproduced here for facility of reference:- ' Article 220 "It shall be the duty of all executive authorities in the Federation and in the Province to assist the Commissioner and the Election Commission in the discharge of his or their functions." Section 104 of Representation of Peoples Act LXXXV of 1976. Direction of Commission in certain matters:- "Anything required to be done for carrying out the purpose of this Act for which no provision or no sufficient provision exists shall be done by such authority and in such manner as the Commission may direct." ' He also referred to section 5 of the above-noted Act, which reads as follows "Assistance to the Commission.-(1) All executive authorities in the Federation and in the Provinces shall render such assistance to the Commissioner and the Commission in the discharge of his or their functions as may be required of them by the Commissioner or the Commission. (2) The Commissioner or the Commission may require any person or authority to perform such functions or render such assistance for the purpose of this Act as he or it may direct." ' From this he argued that if the petitioner had approached the…
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