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Petitioner: PAKISTAN BROADCASTERS ASSOCIATION and 10 others VS Respondent: PAKISTAN JUDGMENT
Court Name: Sindh High Court Judge(s): Aqeel Ahmed Abbasi, Muhammad Junaid Ghaffar Title:PAKISTAN BROADCASTERS ASSOCIATION and 10 others vs PAKISTAN
JUDGMENT
Reported As: PLD 2014 Sindh 630 Result: Petition dismissed Judgment JUDGMENT ' AQEEL AHMED ABBASI, J.---Through instant petition, the petitioners Association i.e. Pakistan Broadcasters Association along with five members i.e. Private/Public Limited Companies engaged in the business of operating various T.V. Channels under Licenses issued by respondent No.1 i.e. Pakistan Electronic Media Regulatory Authority have impugned the Show Cause Notice issued by PEMRA and have also challenged the vires of Rule 15(3) of Pakistan Electronic Media Regulatory Authority Rules, 2009 and Clause 10.4 of the Licenses issued to the petitioners and have sought declaration in the following terms:-- (1) Declare that Rule 15(3) of the Pakistan Electronic Media Regulatory Authority Rules, 2009 has been framed without lawful authority, is ultra vires the powers of the respondents, and is void ab initio, without lawful authority, and of no legal effect. (2) Declare that clause 10.4 contained in each of the licenses of Petitioners Nos.2, 4, 6, 8 and 10 is unreasonable, arbitrary, and excessive and as such is void ab initio. (3) Declare that the Impugned Notices dated February 18, 2010, April 7, 2010 and dated April 26, 2010 and the Impugned Public Notices dated March 2010 are illegal, unjust, without lawful authority, void ab initio and of no legal effect and quash the same. (4) Prohibit the Respondents, jointly and severally, from calling upon, directing, and/or otherwise demanding the petitioners Nos.2, 4, 6, 8, and 10 to restrict the duration of the advertisements aired on their respective satellite TV channels or from imposing any fine against the same and/or from taking any adverse measures or actions against the petitioners as 'threatened in, the Impugned Notices.
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(5) Grant cost of the petition. (6) Grant any and all other relief(s) that this honourable Court may deem just and proper in the circumstances of the present case. 2. Brief facts as stated in the memo of petition are that petitioner No.1 is a registered Society functioning as an Association of Private Sector Radio And Television Broadcasters, whereas, petitioner Nos.2, 4, 6, 8 and 10 are private/public limited companies, which own and operate various Satellite TV Channels under licenses issued by respondent No.l. i.e. PEMRA. It has been further stated in the Memo of petition that petitioner No.2 owns and operates eight Satellite TV Channels known as ARY Digital', (ARY One World', 'ARY QTV', `Zauq', 'Musik', 'Fashion TV', 'HBO', and 'Nick'. Petitioner No.4 owns and operates the Satellite TV Channel known as "Aaj News" pursuant to the License dated January 23, 2008 issued by respondent No.l. Petitioner No.6 owns and operates the two Satellite TV Channels known as 'Sindh TV News' and 'Sindh TV'. Petitioner No.8 owns and operates the three Satellite TV Channels known as 'KTN', 'Kashish', and 'KTN News'. Petitioner No.10 owns and operates three Satellite TV Channels known as APNA News', APNA Channel', and 'Kook TV. It has been stated that all the petitioners, after having complied with all codal formalities, were issued licenses by respondent No.1 to operate TV Channels and such licenses were renewed from time to time. However, as per petitioners, while granting license in favour of the petitioners the respondent No.1 incorporated clause 10.4 in each of their respective licenses which contains, unreasonable, arbitrary and excessive requirements. 3. Respondent No.1 issued notices to the petitioners, wherein it was alleged that there are excessive advertisement breaks during the broadcast of programmes by Satellite TV Channels being operated by the petitioners. It was further stated that such excessive commercial breaks are an infringement of the citizens' right on quality of programmes and reference to the provisions of Rule 15(3) of the PEMRA Rules, 2009 was made. It has been further stated by the petitioners that in the impugned Notice(s) it was alleged that respondent No.1 has decided in its 60th meeting that any violation of Rule 15(3) shall result in the imposition of a fine of Rs.100,000/- and in case of repetition to a fine of Rs.200,000/-. As such petitioners i.e. Satellite TV Channel operators, were advised to broadcast advertisements in compliance with Rule 15(3) of the PEMRA Rules. The above show cause notices were followed by a public notice dated 3rd March 2010 published in Daily Dawn, whereas, it was stated that some of the TV Channels are broadcasting advertisements in violation of Rule 15(3) of the PEMRA, Rules 2009 and that excessive advertisements infuriate the viewers and also affect the quality of programmes. General Public viewers were invited to register their complaints, suggestions or comments on the issue of quality of programmes, excessive advertisements or any other matter relating to broadcast media at respondent No.l's regional offices. Thereafter, respondent No.1 served Show Cause Notice(s) upon petitioners whereby they were called upon to show cause within 15 days as to why a fine of Rs1,00,000/- should not be imposed against them in terms of section 29(6) of the PEMRA Ordinance. Pursuant to said show cause notices, petitioner No.1 in its representative capacity wrote a letter to respondent No.1, whereby the issuance of show cause notice was disputed on the grounds that since advertisements are the only source of revenue for petitioners, therefore, such restriction on the petitioners will adversely effect their business and will cause financial loss. It is further stated that the impugned show cause notices restricting the duration of advertisement are unlawful, illegal and of no legal effect and the same may be withdrawn. Since the respondents were not convinced with the contention of the petitioners, therefore, the impugned show cause notices were not withdrawn, hence resultantly the petitioners have filed instant petition whereby, besides, validity of the impugned show cause notices, vires of Rule 15(3) as well as clause 10.4 of the terms of License Agreement issued in favour of the petitioners by respondent No.1 has also been challenged.
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4. Learned counsel for the petitioners has submitted that in terms of the Constitution of Islamic Republic of Pakistan, 1973, every citizen has a right and freedom to carry on his business activity without any interference or hindrance, whereas, per learned counsel, any restriction or hindrance in this regard violates the provisions of Article 1-8 of the Constitution of Islamic Republic of Pakistan, 1973, which recognizes the right to freedom of trade, business and profession to be carried out by every citizen of Pakistan. Per learned counsel, the impugned Rule 15(3) restricts the fundamental right of petitioners to carry on their business of operating Satellite TV Channels freely and without any interference or restriction by the respondent No. 1. Per learned counsel, similarly, the provisions of clause 10.4 incorporated in the License Agreement issued by respondent No.1 in favour of the petitioners is also confiscatory in nature and restricts the right of the petitioners i.e. Freedom of speech. It has been contended by the learned counsel for petitioner that such arbitrary and unreasonable restrictions in respect of the business of TV/Satellite Channels through aforementioned rule and the clause of license agreement as referred to hereinabove, is arbitrary and amounts to abuse of the process of law and the same may be declared as ultra vires to Constitution, and of no legal effect. While concluding the arguments, learned counsel for the petitioners has referred to following constitutional and legal provisions and also placed reliance on the following judgments of the Hon'ble Supreme Court of Pakistan, Indian Supreme Court as well as this Court. (1). Constitution of India Article 19 (2) Communications Act 2003 (UK) Section 322 (3) Dr. Shahid Masood v. Federation of Pakistan 2010 SCM R 1849 (4) Sakal Papers (P) Ltd., v. Union of India (sic) SC 305 (5) Bennett Coleman and Co. v. Union of India AIR 1973 SC 106 (6) Indian Express Newspapers v. Union of India AIR 1986 SC 515 (7) Hindustan Times v. State of UP 250(sic). (8) Independent Newspapers Corporation (Pvt.) Ltd. v. Chairman, Fourth Wage Board 1993 SCM R 1533 (9) Jameel Ahmed Malik v. Pakistan Ordnance Factories Board 2004 SCM R 164 (10) Masroor Ahsan v. Ardeshir Cowasjee PLD 1998 SC 823 (11) Arshad Mehmood v. Government of Punjab through Secretary, Transport Civil Secretariat, Lahore PLD 2005 SC 193. 5. Conversely, learned counsel for respondent No.1 has vehemently opposed the maintainability of instant petition and has seriously controverted the submissions made by the learned counsel for the petitioners. It has been contended by the learned counsel for the respondent that instant petition besides being misconceived in law and facts, is also tainted with malice, as according to learned counsel, the petitioners who were violating the express provisions of law and the rules, in order to frustrate the lawful proceedings initiated by the respondents in terms of PEMRA Rules, 2009, whereby show cause notices were issued to the petitioners under Rule 15(3) for violation of the said rule and terms of the License Agreement by the respondents, the petitioners have malafidely challenged the vires of the aforesaid Rule as well as clause 10.4 of the License Agreement through instant petition. It has been contended by the learned counsel for the respondent that the PEMRA Rules, 2009 have been framed to serve the purpose of PEMRA Ordinance, 2002, strictly in accordance with law, to regulate the provisions of Ordinance, 2002, and to prescribe the criteria and procedure for application, issuance, suspension and cancellation of license, to be issued to Broadcasters TV Channel operators or Cable TV Operators by the authority after complying with all the codal formalities. Per learned counsel, none of the provisions of the PEMRA Ordinance, 2002, or the PEMRA Rules, 2009, has ever been challenged nor any objection whatsoever was ever raised regarding any of the terms of the license issued to the petitioners, whereas, such objection has
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been raised by the petitioners only after issuance of Show Cause Notices to the petitioners who have violated the express provisions of Rule 15(3) and clause 10.4 of the License Agreement. It has been contended by the learned counsel that the petitioners, instead of complying with the legal provisions as contained in PEMRA Ordinance, 2002 as well as in PEMRA Rules, 2009, particularly Rule 15(3) which provided that "during a regular programme a continuous break for advertising shall not exceed three minutes and duration between two successive breaks shall not be less than fifteen minutes", the petitioners were flouting the aforesaid requirement of law, whereas, neither duration of the advertisement nor the duration between two such breaks as provided in terms of Rule 15(3) was being maintained. Per learned counsel, since the respondent is a Regulatory Authority in terms of PEMRA Ordinance, 2002, therefore, it is the duty of the respondent i.e. PEMRA to regulate and apply the PEMRA Ordinance, 2009 read with PEMRA Rules, 2009, and to ensure the compliance by all concerned. Per learned counsel, such regulation does not amount to putting any restriction upon the lawful business activity of the petitioners as alleged by the learned counsel for the petitioners. Per learned counsel, reference to Article 19 of the Constitution of Islamic Republic of Pakistan, 1973 by the learned counsel for the petitioners in the instant case is misconceived as through impugned rule no restriction has been imposed on a citizen with regard to his right to freedom of speech and expression nor any restriction has been imposed on the freedom of Press, on the contrary, in order to facilitate and regulate the constitutional mandate, the PEMRA Ordinance, 2009 and the PEMRA Rules, 2009 have been enacted to provide equal treatment to all the Broadcasters, TV Channel operators and Cable TV Operators. Learned counsel for the respondent has further submitted that Rule 15(3) of the PEMRA Rules, 2009 is not a new insertion as the similar provisions were also available under Rule 22(4) of PEMRA Rules, 2002 and all the Broadcasters and Cable TV Operators neither challenged the vires of such rule nor there was, barring few exceptions, any violation of such rule. Learned counsel also referred to various terms and conditions including clause 10.4 of the License Agreement issued by the respondent in favour of the petitioners and submitted that license is a contract between licensor and licensee, hence a party who is privity to such contract/agreement, cannot be allowed to wriggle out from such contract by merely challenging any of the terms or clause of the license agreement. Learned counsel also referred to the provisions of Article 18 of the Constitution and submits that power to regulate business and trade has been given to the Government, therefore, any enactment, rules and regulation formulated in this regard does not amount to putting any restriction on the business and profession of a citizen. It has been further contended by the learned counsel that through Rule 15(3) and clause 10.4 of the license agreement, in order to maintain the quality of TV programme telecast by the Broadcasters and Cable TV Operators, reasonable time frame and interval for advertisements has been provided to them, keeping in view the purpose and mandate of the PEMRA Ordinance 2002, and PEMRA Rules, 2009, as well as the viewers convenience, in order to ensure healthy transmission of information and entertainment by the Broadcasters and Cable TV Operators to its viewers. Per learned counsel, similar provisions as contained in Rule 15(3) of the PEMRA Rules and clause 10.4 of the license agreement are also available in large number of developed and developing countries i.e. United Kingdom, Germany, France, Ireland, Russia, Denmark, Philippine, Australia, South Korea, Argentina, Singapore, whereby the Broadcasters and Cable TV Operators are required to maintain the prescribed interval during advertisement as well as interval between two advertisements. In support of his contention, learned counsel has placed a brief summary containing detail of applicable time period provided under laws of various countries as referred to hereinabove. It has been contended by the learned Counsel that instant petition has no merits, hence liable to be dismissed with cost. In support of his contention, learned counsel for the respondent has placed reliance in the case of Pakcom Limited and others v. Federation of Pakistan and others PLD 2011 SC 44.
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6. Learned DAG has adopted the arguments advanced by the learned counsel for the PEMRA, and has also opposed the maintainability of the instant petition. It has been contended that in order to avoid the response to Show Cause Notices issued by PEMRA to the petitioners for violating the legal requirements, the petitioners have filed instant petition in the garb of challenging the vires of rule and the terms of license agreement which is liable to be dismissed. 7. We have heard both the learned counsel and perused the record as well as relevant provisions of the Ordinance, Rules and the Licenses issued and renewed from time to time by respondent in favour of the petitioners. 8. Before we may proceed to examine the vires of Sub-rule (3) of Rule 15 of PEMRA Rules, 2009 or the legality and effect of clause 10.4 of the lincese agreement issued by the respondent to the petitioners, it will not be out of place to refer and to reproduce hereunder the provisions of Articles 18 and 19 of the Constitution of Islamic Republic of Pakistan, 1973, which have been referred and relied upon by the learned counsel of both the parties during hearing of the instant petition. ' Article 18. Freedom of trade, business or profession.-Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful or business: ' Provided that nothing in this Article shall prevent- (a) the regulation of any trade or profession by a licensing system; or (b) the regulation of trade, commerce or industry in the interest of free competition therein; or (c) the carrying on, by the Federal Government or a Provincial Government, or by a corporation controlled by any such Government, of any trade, business, industry, or service, to the exclusion complete or partial, of other persons. ' Article 19. Freedom of speech, etc.-Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, [commission of] or incitement to an offence. 9. Both Articles 18 and 19 of the Constitution have been provided under Chapter-I relating to fundamental rights, therefore, are required to be interpreted liberally, however, in harmony, by considering the Constitution as a component organic unit so as to avoid any conflict between any of the Articles of the Constitution. 10. Article 18 of the Constitution enshrines that every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful business, however, subject to such qualification, if any, as may be prescribed by law. The provisions added to Article 18 of the Constitution further qualify the aforesaid right of a citizen to enter upon any lawful profession or occupation, and to conduct any lawful business, however, in the following terms: (a) the regulation of any trade or profession by a licensing system; or (b) the regulation of trade, commerce or industry in the interest of free competition therein; or (c) the carrying on, by the Federal Government or a Provincial Government, or by a corporation controlled by any such Government, of any trade, business, industry or service, to the exclusion complete or partial, of other persons. 11, From careful reading of hereinabove provisions of Article 18 of the Constitution of Islamic Republic of Pakistan, 1973, it can be gathered that the right of a citizen and freedom of trade, business or profession has been recognized as fundamental right of every citizen of Pakistan, which can be enforced by process of law, however, it will not be out of place to observe that such right is not absolute and is subject to such qualifications as may be prescribed by law. 12. Similarly, Article 19 of the Constitution of Pakistan recognizes and guarantees the right of a citizen of freedom of speech and expression as well as freedom of press, however, subject to
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reasonable restrictions which may be imposed by law in the interest of glory of Islam or the integrity, security or defence of Pakistan or any part, thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, commission of or incitement to an offence. 13. From careful reading of Article 19, it can be gathered that the right of a citizen of Pakistan relating to freedom of speech and expression as well as freedom of the press has been recognized as a fundamental right, whose enforcement can be sought through law, however, that right is also not absolute, but it is subject to reasonable restrictions which may be imposed by any law. It can be safely concluded that the rights of a citizen as guaranteed under Articles 18 and 19 of the Constitution of Pakistan are not absolute or unfettered, but the same are subject to law and reasonable restrictions which may be imposed by law. Reference in this regard can be made in the case of Pakcom Limited and others v. Federation of Pakistan and others PLD 2011 SC 44, wherein the Hon'ble Supreme Court, while examining the scope of various provisions of constitution including Articles 18, 23, 24 and 25 of the Constitution of Islamic Republic of Pakistan has held as under: "52. The interpretation of Article 18 has been made variously and the judicial consensus seems to be that the "right of freedom of trade, business or professions guaranteed by Art. 18 of the Constitution is not absolute, as it can be subjected to reasonable restrictions and regulations as may be prescribed by law. Such right is therefore not unfettered The regulation of any trade or profession by a system of licensing empowers the Legislature as well as the authorities concerned to impose restrictions on the exercise of the right. They must, however. Be reasonable and bear true relation to 'trade or profession and for purposes of promoting general welfare. Even in thus countries where the right to enter upon a trade or profession is not expressly subjected to conditions similar to this Article, it was eventually found that the State has, in the exercise of its police power, the authority to subject the right to a system of licensing, i.e., to permit a citizen to carry on the trade or profession only if he satisfied the terms and conditions imposed by the prescribed authority for the purposes of protecting and promoting general welfare" (PLD 1989 Kar. 219, Govt. Of Pakistan v. Akhlaque Hussain PLD 1965 SC 527)." 14. The PEMRA Ordinance. 2002 (Ordinance No.XIII of 2002) dated 1st March, 2002 has been promulgated by the President of Pakistan by exercising authority as vested in him under Article 89 of the Constitution of Pakistan with the following preamble. (i) improve the standards of information, education and entertainment; (ii) enlarge the choice available to the people of Pakistan in the media for news, current affairs, religious knowledge, art, culture, science, technology, economic development, social sector concerns, music, sports, drama and other subjects of public and national interest; (iii) facilitate the devolution of responsibility and power to the grassroots by improving of access of the people to mass media at the local and community level; and (iv) ensure accountability, transparency and good governance by optimizing the free flow of information. 15. It will be advantageous to examine the nature of the licence issued by the respondent in favour of the appellant under PEMRA Ordinance, 2002 for establishment and operation of broadcast media, and the relevant provisions of the Ordinance, 2002 which regulate issuance, renewal and revocation for the purposes of resolution of the controversy involved in the instant case. (A) The term licence has been defined in Section 2(m) of PEMRA Ordinance, 2002, which reads as under: "2(m) "Licence" means a licence issued by the Authority to establish and operate a broadcast media or distribution services." (B) Issuance of licence by the respondent authority for the establishment and operation of all broadcast media and distribution is regulated in terms of Section 19 of the PEMRA Ordinance, 2002,
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which reads as follows: "19. Licence to broadcast or operate.----(1) The Authority shall have exclusive right to issue licences for the establishment and operation of all broadcast media and distribution services, provided that this exclusive right shall be used by the Authority in conformity with the principles of fairness and equity applied to all potential applicants for licences whose eligibility shall be based on prescribed criteria notified in advance and that this shall be done through an open, transparent bidding process: ' Provided that the bidding shall be held if the number of applications exceeds the number of licences to be issued by the Authority. (2) No person shall engage in any broadcast media or distribution service except after obtaining a licence issued under this Ordinance. (3) Every licence shall be subject to such terms and conditions as may be prescribed. (4) The Authority shall have the power to determine number of licences to be issued in each category or sub-category and charge fees at such rates as the Authority may fix from time to time for the grant of a licence and for its annual renewal. (5) The Authority shall devise a Code of Conduct for programmes and advertisements for compliance by the licensees." (C) The terms and conditions of such licence issued under the PEMRA Ordinance, 2002 have been, defined in Section 20 of the PEMRA Ordinance, 2002, which reads as follows: "20. Terms and conditions of licence.--A person who is issued a licence under this Ordinance shall:- (a) ensure preservation of the sovereignty, security and integrity of the Islamic Republic of Pakistan;…
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