2017 LHC 2716 Review (PEMRA’s ban on Indian TV shows contested)

M/s. Leo Communications (Pvt.) filed a petition against The Federation of Pakistan, etc. before the Chief Justice Syed Mansoor Ali Shah in the Lahore High Court. Ms. Asma Jahangir, was the advocate for the petitioners and Respondents were represented by Mr. Tahir Mahmood Ahmed Khokhar, Deputy Attorney General for Pakistan, Mr. Mansoor Usman Awan, Advocate for the respondent/PEMRA along with Tahir Farooq Tarrar, Head Legal. The research assistance was given by Mohsin Mumtaz, Civil Judge/Research Associate at LHCRC (Lahore High Court Research Centre).

The Petitioner Company had a valid license (for 15years) to establish and operate satellite TV broadcast channel station, issued by Pakistan Electronic Media Regulatory Authority (PEMRA). The channel was operated under the name of Filmazia. Under the license, the Petitioner Company was allowed to air 6% Indian content (clause 7.2 of the license). PEMRA banned Indian content through notice (Circular) dated 19.10.2016. The grievance of the Company was that the circular had unilaterally and unlawfully varied and altered the terms and conditions of the license in violation of The Pakistan Electronic Media Regulatory Authority Ordinance, 2002.

Ms. Asma Jahangir, counsel for the Petitioners argued that the impugned circular did not show any necessity in the Public interest as required under section 30(2) of the ordinance. Further, she contended that the petitioner licensee was not served with a show cause notice before varying the terms and conditions of license as required under section 30(3) of the ordinance. The Counsel argued that the Federal Government had allowed the display of Indian Films in Pakistani cinemas and this decision had been accepted by PEMRA, therefore there was no lawful justification of placing a ban on Indian plays and dramas. Counsel for the Petitioner referred to an order of the High Court of Sindh, Karachi dated 23.06.2017 passed in Suit No.1621/2017, whereby the competitors of the petitioner company approached the court and obtained a stay order, wherein PEMRA had been restrained from taking any coercive action. The Counsel further contended that their competitors were airing Indian content too.

Mr. Mansoor Usman Awan, Advocate for respondents (PEMRA) submitted that the petitioner had no locus standi to maintain the instant petition as being a licensee, the company was bound to follow the directions given by PEMRA. He argued that leaflet had been issued to safeguard the public interest. In support of his contention he referred to Section 30 (2) of the Ordinance and many other orders of the meetings of the Authority (PEMRA). He candidly submitted that the ground for placing a ban on Indian content was in reaction to the ban placed on Pakistani dramas by a private Indian channel. Hence, the consideration behind the circular was the principle of reciprocity.

The court asked PEMRA to verify certain facts before the circular was examined on constitutional and legal grounds. The counsel was inquired to evaluate whether the ban on Pakistani dramas in India was the decision of the Government of India or PEMRA in India and whether the principle of reciprocity had a statutory cover and was applied across the board. It was also inquired whether all the Indian dramas could be viewed easily online in Pakistan. PEMRA failed to give satisfactory answers to all queries, as it relied upon a single document which was a ban imposed by a private channel (zee zindagi) of India. The ban was not the decision of any statutory body in India. There was therefore, no principle of reciprocity applicable.

In the Court’s view, the Counsel for Respondents failed to justify their case. The court noted that pursuant to article 19 of the Constitution of Pakistan, 1973 right to free speech and expression was guaranteed within the country and the restrictions being contested were abusing that guarantee. PEMRA had to convincingly establish that there was an imminent threat or necessity of public interest which justified its restrictions. This, the court held to not have been proven.

The court therefore, set aside the Circular dated 19.10.2016 issued by PEMRA as being unconstitutional and illegal. It also mentioned that PEMRA was free to invoke section 30(2) of the ordinance in appropriate circumstances, to protect and safeguard the public’s interest. The petition was accepted and the channel was allowed to air Indian content.