18
S.C. 128\02
In my view this concession is properly made and finds support in other
jurisdictions. For instance in the case of Athukorale and Ors v Attorney-General of
Sri Lanka15 the Supreme Court of Sri Lanka held that:-
“having regard to the limited availability of broadcasting frequencies, the
regulation of broadcasting was necessary to ensure the adequate coverage of
issues and to prevent the monopolistic domination of the frequency spectrum
by the government or by a few individuals. On that basis regulation did not
violate the right to freedom of speech but rather advanced it by serving the
interest of the whole community and giving listeners and viewers the
opportunity to consider a range of views. However, in order to safeguard the
fundamental rights of freedom of thought and expression the regulatory body
had to be independent of the government. …”
It is also apparent from the same judgment that regulation, particularly
the need for licensing was necessary for the maintenance of law and order.
In this
regard the court had this to say:-
“Article 14 of the Constitution deals with those great and basic rights which
are recognised and guaranteed as the natural rights inherent in the status of a
citizen of a free country. Freedom of speech … goes to the heart of the
natural right of an organised freedom-loving society to impart and acquire
information … This freedom is not absolute. There is no such thing as
absolute or unrestricted freedom of speech and expression, wholly free from
restraint’ for that would amount to uncontrolled licence which would lead to
disorder and anarchy. Absolute and unrestricted individual rights do not and
cannot exist in a modern State. The welfare of the individual, as a member of
collective society, lies in a happy compromise between his rights as an
individual and the interests of the society to which he belongs … Our
Constitution has rightly struck a proper balance between the varying
competing social interests, and has … set forth the restrictions to which the
fundamental right of speech and expression may be subject …”
(underlining is mine)
The Court went further in stating the necessity to licence and stated:-
15
(1997) 2 BHRC 610
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