Query for learned advocates and experts
Querist :
Anonymous
(Querist) 15 September 2011
This query is : Resolved
Dear learned Advocates and Experts,
This query is especially directed towards those learned advocates and experts who have seen the days in 1970s when one needed license for possessing radio or television or those who have a deep understanding of the Constitutional law.
If anyone has copy of that legislation which required license for possessing radio or television, it would be great if you share it here for analysis from Constitutional perspective.
As per my understanding radio and television are protected under freedom of speech and expression.
Purpose of my query is to understand the following:
Can a legislation to regulate a fundamental right say that no person will posses radio or television without a license. Whoever acquires, has in his possession or carries radio or television without license shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.
As per my analysis, the above condition in legislation of not even allowing a person who is in possession{fabricated his radio from spare parts for his own personal use to enjoy his fundamental right under Aricle 19(1)a}to come and get a license, will be violation of guarantee against self incrimination under Article 20(3) since the legislation is compelling him to make an open declaration to get implicated.
What are your opinions regarding this?
R.Ramachandran
(Expert) 15 September 2011
Please come out of your "Anonymity" so that one can have a healthy discussion on the topic.
prabhakar singh
(Expert) 15 September 2011
can there be a rouge less society???????????
so also goes true for stets and their governance. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
Querist :
Anonymous
(Querist) 15 September 2011
Ramachandran Sir, with due respect, how does anonymity hamper a healthy discussion in this query? As per my understanding this option for anonymity has been given on this website for some good reason. If you read the following links you may probably get an idea:
1) http://www.eff.org/issues/anonymity
2) http://www.neowin.net/news/israeli-supreme-court-makes-internet-anonymity-a-constitutional-right
Hope you will take my reply in good spirit and not feel hampered by my using of the anonymity option on this website.
Anyways as usual I find your replies excellent from the legal perspective and helped me learn and discover a lot by reading them. I expect and welcome in good spirit similar contributions from you in this discussion.
Prabhakar Sir, I understand and appreciate what you mean to say. If you could also shed some light from Constitutional perspective that will be great.
Guest
(Expert) 15 September 2011
Radio and television licesnses were governed under Indian Telegraphs Act 1885 and Indian Wireless Telegraphy Act 1933 and the rules made thereunder. The liceses to possess radio and televisions were discontinued later, but establishing and working is still prohibited for the general public except with license.
The provisions of punishment under section 6 of the Indian Wireless Telegraphy Act are as under:
(1) Whoever possesses any wireless telegraphy apparatus, other than a wireless transmitter, in contravention of the provisions of Section 3 shall be punished, in the case of the first offence, with fine which may extend to one hundred rupees, and, in the case of a second or subsequent offence, with fine which may extend to two hundred and fifty rupees.
(1A) Whoever possesses any wireless transmitter in contravention of the provisions of Section 3 shall be punished with imprisonment which may extend to three years, or with fine which may extend to one thousand rupees or with both.
(2) For the purposes of this section a Court may presume that a person possesses wireless telegraphy apparatus if such apparatus is under his ostensible charge, or is located in any premises or place over which he has effective control.
(3) If in the trial of an offence under this section the accused is convicted the Court shall decide whether any apparatus in respect of which an offence has been committed should be confiscated, and, if it so decides, may order confiscation accordingly.
Querist :
Anonymous
(Querist) 16 September 2011
Thank you Dhingra Sir. Does the wireless telegraphy apparatus come under freedom of speech and expression of Article 19(1)a of Constitution? If yes, then the legislation to regulate fundamental right cannot override Article 19(1)a.
A citizen can fabricate a wireless telegraphy apparatus for his personal use and he should be able to go and get a license for it under the regulations.
From the above Sections it appears that the legislation is not providing any such opportunity to the citizen to come and get license which Constitution has already guaranteed to him.
A citizen enjoying his fundamental right under Article 19(1)a who wants to get a license is being compelled by Indian Wireless Telegraphy Act 1933 to make a declaration against himself in order to self incriminate himself in violation of Article 20(3) of the Constitution. Is my interpretation correct? What are the views of advocates and experts of this forum?
Chanchal Nag Chowdhury
(Expert) 18 September 2011
Licences for Radio & TV were done away with because the Govt. of the day thought it prudent to. They can be reimposed if the Govt. of the future feel it prudent to impose. It has nothing to do with Fundamental Rights.
Querist :
Anonymous
(Querist) 19 September 2011
Nag Sir, with due respect, I humbly disagree with your opinion that it has nothing to do with Fundamental Rights due to the reasons mentioned here under:
"Everyone has the right to freedom of opinion and expression; the right includes freedom to hold opinions without interference and to seek and receive and impart information and ideas through ANY MEDIA and regardless of frontiers" proclaims the Universal Declaration Of Human Rights (1948). This resolve is reflected in Article 19(1)(a) of the Constitution.
Explaining the scope of freedom of speech and expression Supreme Court has said that the words "freedom of speech and expression" must be broadly constructed to include the freedom to circulate one's views by words of mouth or in writing or through audiovisual instrumentalities. It therefore includes the right to propagate one's views through the print media or through ANY OTHER communication channel e.g. the radio and the television. Every citizen of this country therefore has the right to air his or their views through the printing and or the electronic media.
Government has no monopoly on electronic media. The Supreme Court widened the scope and extent of the right to freedom of speech and expression and held that the government has no monopoly on electronic media and a citizen has under Article 19(1)(a) a right to telecast and broadcast to the viewers/listeners through electronic media television and radio any important event. A citizen has fundamental right to use the BEST MEANS of imparting and receiving communication and as such have an access to telecasting for the purpose.
The matter of discussion in this query is not that the restrictions by government are not within scope of Article 19(2) of the Constitution. The matter of discussion in this query is: Is the legislation about these restrictions violative of Article 20(3) of the Constitution?
Guest
(Expert) 19 September 2011
Dear querist,
In fact, you need to go through the wireless telegraphy act and rules, s a whole, along with the Constitution of India [NOT ONLY Sec. 19(1)(a)] thoroughly to satisfy yourself.
However, in short, I may say that there is a lot of difference between possession and listening of a wireless telegraphy apparatus and fabricating (manufacturing) and working (broadcasting) of an communication to the outside world.
If you go through the definition of wireless telegraphy apparatus, that states, as follows:
"Wireless telegraphy apparatus means any apparatus, appliance, instrument or material used or capable of use in wireless communication, and includes any article determined by rule made under Sec. 10 to be wireless telegraphy apparatus, but does not include any such apparatus, appliance, instrument or material commonly used for other electrical purposes, unless it has been specially designed or adapted for wireless communication or forms part of some apparatus, appliance, instrument or material specially so designed or adapted, nor any article determined by rule made under Section 10 not to be wireless telegraphy apparatus."
IF YOU THINK THAT YOU SHOULD BE ALLOWED BY THE gOVERNMENT TO FABRICATE (MANUFACTURE) A WIRELESS TELEGRAPHY APPARATUS WITHOUT ANY LICENSE TO CONTROL YOUR ACTIVITIES, ALL THE EXTREMEISTS WOULD ALSO GET AUTOMATIC FREEDOM TO MANUFACTURE WIRELESS TELEGRAPHY APPARATUSES FOR THEIR USE IN THE DESTRUCTION ACTIVITIES THAT THEY UNDERTAKE IN VARIOUS COUNTRIES OF THE WORLD.
WOULD YOU LIKE THAT THE GOVERNMENT SHOULD BECOME SO CARELESS TOWARDS THE SECURITY OF ITS PEOPLE AND ALLOW ONE AND ALL TO PLAY WITH THE SECURITY CONCERNS IN THE NAME OF THE FUNDAMENTAL RIGHTS?
However, if you are so eager to fabricate the wireless telegraphy apparatus, what is the hitch for you to obtain a valid license for the same and allow the Government to make proper inspection about your involvement in the activities of wirelee telegraphy?
Querist :
Anonymous
(Querist) 19 September 2011
Dhingra Sir, it appears you have not been able to understand my query from Constitutional and legal perspective and needlessly going into political and emotional aspects of extremism etc.
Nowhere I am saying that entire Indian Wireless Telegraphy Act, 1933 is violative of the Constitution. Neither I am against regulations under Indian Wireless Telegraphy Act, 1933.
Let us understand the fine points of my query first and then give opinion. The Constitution is guaranteeing me the freedom of Speech and Expression which includes the possession of tools used for the same. Thus wireless telegraphy apparatus also comes under Article 19(1)(a) of the Constitution. It is also a fact that any legislation cannot override the Constitutional guarantees.
Example: My Life is guaranteed under Article 21 of the Constitution. A legislation to regulate Life cannot override the Constitutional guarantee and implicate me for merely possessing of my Life(a Fundamental Right under the Constitution). Such a legislation to regulate my Life will have to give me oppurtunity for me to come and comply with the regulations. It cannot ask me to make an open declaration in violation of Article 20(3) of the Constituton to get me implicated for mere possession of my Life, which is already protected as a Constitutional guarantee.
Similarly instead of allowing me come and get a license for me already enjoying a fundamental right under the Constitution, if I go to get a license, the Sections 3 and 6 of Indian Wireless Telegraphy Act, 1933 are asking me to make an open declaration in violation of Article 20(3) of the Constituton to get me implicated for merely possessing wireless telegraphy apparatus, which is already protected as a Constitutional guarantee for my freedom Speech and Expression under Article 19(1)(a) as well as Article 21.
Hope my query is now clear and makes sense.
Guest
(Expert) 19 September 2011
Probably you are sidetracking the issue by bringing in the issue of protection of life.
By the way, what is the link between right to speech, fabricating (manufacturing) a wireless telegraphy apparatus, or protection of your life? All the three are quite distinct issues. Needless to mention fabricating a wireless set and protection of life have not even distant link with right to speech. If you don't have any ill-intention against the soveriegnity of India or the security of state, why are yuou afraid of complying with the provisions of Sec.3 of the Wireless telegraphy Act. Section 6 of the said Act does also provides any provision to punish with death sentence. People manufacturing the wireless telgraphy apparatuses are still getting licenses, but never heard of any death sentence to any of the manufacturers, as you are fearing for you.
I would like to ask a very simple question to you, does the Constitution of India guarantees you a right to manufacture a wireless telegraphy apparatus, which you feel is denied by the Wireless Telegraphy Act?
You are probably reading between the lines, so far as constitional provisions are concerned. You are reading clause (1)(a) of Article 19, but not cluase (2) of the said Article, which clearly lays down that "NOTHING IN SUB-CLAUSE (a) OF CLAUSE (1) SHALL AFFECT THE OPERATIONS OF ANY EXISTING LAW. This is just a tip of the iceberg. That is why I advised you to read the constitution as a whole, before you try to raise issues in isolated manner.
You also forget that nothing mentioned in the constitution can be implemented without enacting a proper legislation by appropriate Acts of Parliament. You have not probably gone through Article 35 of the Constituition, which clearly provides for legislation to give effect even to the fundamental rights.
If you think, the Wireless telegraphy Act violates the Constitution of India, nothing prevents you to file a case in the competent court of law and get the authentic ruling of the court.
There was nothing of the sort of political and emotional aspects of extremism. That was just an example for your guidance only. Of course, if you don't feel like agreeing on my views, you definitely have a right to differ with my views. Likewise, I also have a right to disagree with you concept of fundamental rights. You cannot expect me to blindly endorse your views.
Querist :
Anonymous
(Querist) 20 September 2011
Dhingra Sir it appears you have still not been able to understand my question.
The link between right to speech, fabricating (manufacturing) a wireless telegraphy apparatus for personal use, or protection of your life is that they are fundamantal rights or the tools for fundamental rights. Whenever we interpret Part III, rights should have wider meaning and powers should have narrow meaning. I think you agree to this ateast.
It is unfortunate that instead of understanding the technical aspect of the matter, needlessly going into emotional mode like saying why are you afraid of complying with the provisions of Sec.3 of the Wireless Telegraphy Act.
We are discussing Section 3 and 6 which is concerned with the possession of wireless telegraphy apparatus, you are asking a question as to whether Constitution guarantees a right to manufacture a wireless telegraphy apparatus for personal use. May I ask the Constitution does not even guarantee to us that we can marry and create children but we are doing it. How and why when there is no such explicitly enumerated guarantee by the Constitution?
Even when Article 19(2) and 35 is not in question, still you are refering to Article 19(2) and Article 35 without taking into account of Articles 13(1), 13(2), 19(1)(a) and 20(3)
Article 19(2) is nothing but a restatement of State interest. Article 19(2) or Article 35 is not empowering the State to violate Articles 13(1), 13(2), 19(1)(a) and 20(3). Or are you saying Article 19(2) and Article 35 are empowered to violate Articles 13(1), 13(2), 19(1)(a) and 20(3)?
I restate my query again in a very simple manner, hope you will understand my point of view. In order to regulate rights under Article 19(1)a, can Article 19(2) violate Article 20(3)?
Guest
(Expert) 21 September 2011
In fact, the problem with you seems to be that you try to find the whole of the constitution of India and all the statutes within the framework and scope of a single sub-clause (a) of clause (1) of Article 19 that pertains to the "Right to Speech".
Your original question was about the fundamental right to speech with particular reference to manufaction of a wireless telegraphy apparatuse, while there was least connection with right to speech and manufacture of a wireless telegraphy apparatus. Now you are trying to confuse the other issues also my mixing up all the issues together, like, protection of life, marriage, having children.
I don't find any need to understand a mixture of your issues by diversion of your original query.
I have alredy stated, "if you think, the Wireless telegraphy Act violates the Constitution of India, nothing prevents you to file a case in the competent court of law and get the authentic ruling of the court."
BETTER TRY YOUR LUCK TO GET THE WIRELESS TELEGRAPHY ACT ANNULLED THROUGH THE HON'BLE SUPREME COURT. I WON'T ALSO HAVE ANY OBJECTION, IF YOU ALSO TRY TO GET THE ISSUES OF MANUFACTURE OF A WIRELESS TELEGRAPHY APPARATUSE, MARRIAGE, HAVING CHILDREN INCLUDED IN THE DEFINITION OF RIGHT TO SPEECH.
Querist :
Anonymous
(Querist) 22 September 2011
Dhingra Sir the whole of the Constitution of India and all the statutes does not mean they have the right to violate or override Articles 13(1), 13(2), 19(1)(a) and 20(3). If this is the case(as perceived by you) then the very purpose of having guarantees under Part III of Constitution gets defeated. Why have the Part III in the Constitution and Articles 32, 226 to give powers to Supreme Court and High Courts, if Articles 13(1), 13(2), 19(1)(a) and 20(3) are to be allowed to be violated by Article 19(2) and 35, let the State do whatever it wants.
Nowhere I have said that entire Wireless Telegraphy Act is unconstitutional and needs to be annulled. You are unnecessarily talking about annulment of the entire act and trying to divert from real points of discussion.
Nobody is trying to confuse the other issues, they are only examples of how broad is the meaning of fundamental rights under the Constitution.
If you note I have already mentioned that explaining the scope of freedom of speech and expression, Supreme Court has said that the words "freedom of speech and expression" must be broadly constructed to include the freedom to circulate one's views by words of mouth or in writing or through audiovisual instrumentalities. It therefore includes the right to propagate one's views through the print media or through ANY OTHER communication channel e.g. the radio and the television. Still you are trying to say that wireless telegraphy apparatus is outside the scope of Article 19(1)a.
My query is very simple, in order to regulate rights under Article 19(1)a, can Article 19(2) violate Article 20(3)?
