There is a huge difference between the public interest and what the public is interested in. The Supreme Court needs to make this distinction when giving its verdict on the dispute between Ten Sports and Doordarshan on broadcasting the India-Pakistan cricket matches.
The public is interested in many things, from films and pop music to soap operas and sports. At one time, the public was interested in Kaun Banega Crorepati above all else. That did not make it a public interest issue.
The biggest viewership on the internet is for pornography. Thousands of dotcom companies have gone bust, but the porno sites have thrived. So, there is huge public interest in pornography. That does not make pornography in the public interest.
Ten Sports had won the broadcasting rights for the India-Pakistan matches in open competition. A dispute between Ten Sports and local cable channels on broadcast fees led to fears of a deadlock, depriving viewers of the first match’s telecast. The government seemed ready to issue an ordinance to force the issue. Then, two High Courts heard and upheld public interest suits claiming that Doordarshan should have broadcast rights since it reaches the most people.
Ten Sports appealed. The Supreme Court then gave Doordarshan broadcast rights as an interim measure, subject to a decision on broadcast fees. The advertising rights will remain with Ten Sports (in the first match, DD blocked the ads of Ten Sports and substituted its own, making Rs 10 crore through sheer piracy). The final verdict is still awaited.
The High Courts relied on a 1995 Supreme Court judgement in the Hero Cup case which said that the telecasting of cricket matches was ‘‘in the public interest’’. Paradoxically, the same judgement upheld the right of any sports organiser to sell telecasting rights. The current case is a good occasion for the Supreme Court to reverse its unfortunate 1995 interpretation of the public interest.
Fundamental rights, equality before the law, equal justice for the poor and the minorities — these have traditionally been regarded as issues of public interest. How can cricket be raised to the same level?
I myself am cricket crazy. But I do not believe that I have a fundamental right to watch a cricket match (nor, I suspect, does my employer). Many mothers tell their children they have no fundamental right to watch cricket, especially when they have homework to do. Hundreds of millions of Indians have no access to TV and no knowledge of cricket. Aficionados of kabaddi or hockey claim that these sports are more deeply embedded in Indian traditions than cricket. Why then is cricket alone in the public interest? Cricket is the most popular sport. So what? When ‘Kaun Banega Crorepati’ was the most popular programme, did DD have the right to steal it in the public interest?
India has soiled its reputation as a country that observes the rule of law and sanctity of contracts. The world over, broadcasting rights for sports events are sold to private bidders, and no government channel can override those rights. If any government wants a monopoly broadcast, it needs to negotiate broadcasting rights, not steal the signals of a rival.
These considerations, though weighty, pale beside the fundamental issue of what the public interest is. To raise cricket to the level of public interest is to trivialise the very concept.
Old notions of sovereignty over air-waves are both technologically untenable and morally suspect. Air waves do not respect borders. India ’s first Information and Broadcasting Minister, Keskar, banned film music on All India Radio, but could not stop Radio Ceylon from sending film music to every Indian household. The government ban on foreign TV broke down during the 1991 Iraq war when people bought television dishes to tune into CNN.
India has banned cellular services in Tripura on security grounds, yet this is technically unworkable since cell-phones can use signals from across the border in Bangladesh.
Technology apart, it is Brezhnevian to insist that governments should control access of their citizens to telecasts. Communist countries bemoaned the fact that their citizens could see on Western TV what the West was really like, and exposed official propaganda as false.
The Berlin Wall fell because East Germans could see, against their government’s idea of the public interest, what huge support they had in the West. The last thing we need is a thought police controlling the air waves. This issue did not come up directly in the cricket case, yet the Attorney General insisted that the government had the right to control the air waves in the public interest. Just like East German dictator Honecker. There lies the road to serfdom.
Some will say that governments must be able to jam foreign signals in times of war or emergency. Perhaps. But not to steal cricket telecasts in peacetime.