' 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.
(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.
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 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.
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 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, 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;
(b) ensure preservation of the national, cultural, social and religious values and the principles of public policy as enshrined in the Constitution of the Islamic Republic of Pakistan;
(c) ensure that all programmes and advertisements do not contain or encourage violence, terrorism, racial, ethnic or religious discrimination, sectarianism, extremism, militancy, hatred, pornography, obscenity, vulgarity or other material offensive to commonly accepted standards of decency;
(d) comply with rules and regulations made under this Ordinance;
(e) broadcast if permissible under the terms of its licence, programmes in the public interest specified by the Federal Government or the Authority in the manner indicated by the Government or, as the case may be, the Authority, provided that the duration of such mandatory programmes do not exceed ten per cent of the total duration of broadcast or operation by a station in twenty- court hours except if, by its own volition, a station chooses to broadcast such contents for a longer duration;
(f) comply with the codes of programmes and advertisements approved by the Authority appoint an in-house monitoring Committee, under intimation to the Authority to ensure compliance of the Code;
(g) not broadcast or distribute any programme or advertisement in violation of copyright or other property right;
(h) obtain NOC from Authority before import of any transmitting apparatus for broadcasting, distribution or teleporting operation.
(i) not sell, transfer or assign any of the rights conferred by the licence without prior written permission of the Authority.
(j) not broadcast video footage of suicide bombers, terrorists, bodies of victims of terrorism, statements and pronouncements of militants and extremist elements and any other act which may, in any way, promote, aid or abet terrorists activities or terrorism;
(k) ensure that no anchor person, moderator or host propagates any opinion or acts in any manner pre-judicial to the ideology of Pakistan or sovereignty, integrity or security of Pakistan;
(1) not broadcast any programme inciting violence or hatred or any action prejudicial to maintenance of law and order;
(m) not broadcast anything which defames, or brings into ridicule the Head of State, or members of the armed forces, or executive, legislative or judicial organs of the state;
(n) not broadcast any programme or discussion on a matter which is sub-judice; and
(o) not broadcast anything which is known to be false or baseless or is mala fide or for which there exist sufficient reasons to believe that the same may be false, baseless mala fide."
(D) Similarly, filing of application for issuance of licence, its refusal and validity is regulated in terms of section 24 of PEMRA Ordinance, 2002, whereas Section 25 of the PEMRA Ordinance, 2002 defines certain persons, who cannot be granted licence under the PEMRA Ordinance, 2002. Sections 24 and 25 of the said Ordinance are reproduced hereunder: "24. Licence, application, issuance, refusal and validity.- (1) Any person desirous of obtaining a licence for establishment and operation of broadcast media or a distribution service shall apply to the Authority in such manner and form as may be prescribed.
(2) The Authority shall process each application in accordance with prescribed criteria and shall hold public hearings in the respective provincial capitals of each Province, or as the case may be, Islamabad, before granting or refusing of the licence.
(3) Each application shall be accompanied by such fee as the Authority may prescribe.
(4) A Licence shall be valid for a period of five, ten or fifteen, years subject to payment of the annual fee prescribed from time to time.
(5) The Authority may renew a licence on such terms and conditions as may be prescribed, and in case of refusal to renew a licence reasons shall be recorded in writing.
25. Certain persons not be granted licence.-A licence shall not be granted to:-
(a) a person who is not a citizen of Pakistan or resident in Pakistan;
(b) a foreign company organized under the laws of any foreign Government;
(c) a company the majority of whose shares are owned or controlled by foreign nationals or companies whose management or control is vested in foreign nationals or companies (; or)
(d) any person funded or sponsored by a foreign Government or organization including any foreign non-governmental organization.
(E) Section 29 of the PEMRA Ordinance, 2002 authorizes the authority to enter the premises of a broadcast media or distribution service operator, through its officer or its nominee for the purposes of inspection and investigation, and if the facts so warrant, to seize its broadcast or distribution service equipment, seal the premises after issuing a show cause notice and also to impose fine up to ten million rupees on a licensee who contravenes any of the provisions of the PEMRA Ordinance, 2002 or the rules or regulations made thereunder. Section 29 of the said Ordinance, reads as follows: "29. Power to authorize inspection- (1) The Authority may authorize any of its officers or its nominees to enter the premises of a broadcast media or distribution service operator for purposes of inspection.
(2) A broadcast media station or distribution service premises shall, at all reasonable times, be open to inspection by an authorized officer under subsection (1) and the licensee shall provide such officer with every assistance and facility in performing his duties.
(3) The authorized officer shall, within forty-eight hours of the inspection, submit his inspection report to the Authority.
(4) The Authority may authorize any of its officers to undertake investigation, in the manner it may prescribe, in any matter with regard to its functions and to seek any specific information, from any person, which the Authority may deem useful in order to enable it to determine and dispose of such matter.
(5) The Authority or as the case may be the Chairman after issuing a show-cause notice to a broadcast media or distribution service may seize its broadcast or distribution service equipment, or seal the premises, which is being used in contravention of the provisions of this Ordinance or the rules made thereunder or any other law: Provided that the equipment shall be returned to the holder of a valid licence after imposing on him such penalty as the Authority may determine by Pakistan Electronic Media Regulatory Authority (Amendment) Ordinance, XXVII of 2007, (4-6-2007).
[Provided further that the Authority or the Chairman may seize a broadcast or distribution service equipment or seal the premises which is operating illegally or in contravention of orders passed under section 30.]
(6) The Authority may, after the licensee has been, given reasonable opportunity to show cause, impose fine up to ten million rupees on a licensee who contravenes any of the provisions of this Ordinance or the rules or regulations made thereunder.
(F) Section 30 of the PEMRA Ordinance, 2002 authorizes the authority to revoke or suspend the licence of a broadcast media or distribution service by an order in writing on one or more of the grounds as mentioned in the aforesaid section. Provisions of Section 30 are reproduced hereunder for the sake of relevance.
"30. Power to vary conditions, suspend or revoke the licence. -
(1) The Authority may revoke or suspend the licence of a broadcast media or distribution service by an order in writing on one or more of the following grounds, namely:-
(a) the licensee has failed to pay the licence fee, annual renewal fee or any other charges including fine, if any;
(b) the licensee has contravened any provision of this Ordinance or rules or regulations made thereunder or an order passed under section 27;
(c) the licensee has failed to comply with any condition of the licence; and
(d) where the licensee is a company, and its shareholders have transferred a majority of the shares in the issued or paid up capital of the company or if control of the company is otherwise transferred to persons not being the original shareholders of the company at the time of grant of licence without written permission of the Authority.
(2) The Authority may vary any of the terms and conditions of the licence where it deems that such variation is in the public interest.
(3) Except for reason of necessity in the public interest a licence shall not be varied, or revoked under subsection (1) or subsection (2) unless the licensee has been given reasonable notice to show cause and a personal hearing.
(4) Notwithstanding anything contained in subsection (5) of section 29 or any other provision of this Ordinance, where the Authority takes action under subsection (3) without notice by reason of necessity in the public interest, the Authority or the Chairman, as the case may be, may seize broadcast or distribution service equipment or seal the premises of the licensee: Provided that in a situation of emergency the Authority or the Chairman may direct closure of any broadcast or distribution network for such period as it may determine."
16. Since, through instant petition, the petitioners have challenged the vires of Rule 15(3) of PEMRA Rules, 2009 as well as legality of clause 10.4 of the License Agreement issued by respondent No.1 in favour of the petitioners, we will examine such provisions on the touchstone of constitutionality and legal propriety, hence, the same are reproduce hereunder:- "(a) Rule 15. Programmes and advertisement content.- (1) The contents of the programmes and advertisements which are broadcast or distributed by the broadcast media or distribution service operator, shall conform to the provisions of section 20 of the Ordinance, these rules, the code set out in the Schedule-A and terms and conditions of the licence.
(2) The programmes shall also conform to the provisions of the Motion Pictures Ordinance, 1979 (XLIII of 1979), the rules and code of conduct made thereunder, whereas the advertisements shall also conform to the TV Code of Advertising Standards and Practices in Pakistan and Advertisement Code issued by the Authority.
(3) During a regular programme a continuous break for advertising shall not exceed three minutes and duration between two such successive breaks shall not be less than fifteen minutes.
(4) The licensee shall maintain a record and register of, the programmes being broadcast or distributed by him and shall, for a period of not less than forty-five days, preserve such programmes."
(b) Clause 10.4. The maximum period of an advertisement break during Prime Time, that is, between 1900 to 2200 hours Pakistan Standard Time, shall not be more than 2 minutes to a minimum of ten minutes 'of programme."
17. The purpose for having reproduced the various provisions of the PEMRA Ordinance, 2002 and Rule 15(3) of PEMRA Rules, 2009 as well as the clause 10.4 of the license issued by the respondent in favour of the petitioner is to examine as to whether the impugned provisions of Rule 15(3) of PEMRA Rules, 2009 and clause 10.4 of the license agreement are in violation of Constitutional mandate or the same are ultra vires to the law and discriminatory or confiscatory in nature as alleged by the petitioners. As regards constitutionality of the impugned Rule 15(3) of the PEMRA Rules, 2009 and clause 10.4 of the license agreement is concerned, we have already held hereinabove that, right of a citizen as guaranteed under Articles 18 and 19 of the Constitution of Islamic Republic of Pakistan 1973 is not an absolute or unqualified right but it is subject to law and reasonable restrictions which may be prescribed by law. In terms of the provisions of Rule 15(3) of the PEMRA Rules, 2009 and the clause 10.4 of the license agreement, it appears that a reasonable duration of three minutes has been prescribed for a continuous break for the advertisement during the regular programmes, whereas, further reasonable duration of fifteen minutes have also been prescribed between two such successive breaks. Similarly, in terms of clause 10.4 of the license agreement the maximum period of an advertisement break during prime time i.e. Between 1900 to 2200 hours has been prescribed not to be more than two minutes to a minimum of ten minutes of the programme.
18. From bare perusal of hereinabove provisions of Rule 15(3) of PEMRA Rules, 2009 and the term of clause 10.4 of the license agreement, it is clear that through the impugned provisions merely, "duration of advertisements", during a regular programme and during prime time, has been prescribed in order to maintain uniformity and reasonable continuity in the programme to be telecast by T.V. Channel Operators, keeping in view the purpose of the PEMRA Ordinance, 2002. By no stretch of imagination it can be stated that, by prescribing "duration of advertisement" during a programme the Legislature or the Government in the instant case, has in any manner infringed the right of the petitioner as guaranteed under Articles 18 and 19 of the Constitution of Islamic Republic of Pakistan, 1973, because the rights guaranteed by Articles 18 and 19 are not absolute rights and the same are subject to reasonable restrictions in accordance with the provisions of the Constitution itself or any other law made in this regard, as held by the Hon'ble Supreme Court in the case (supra).
19. Perusal of the statutory provisions as reproduced hereinabove shows that the issuance of Satellite T.V. License, its terms and conditions, renewal, suspension and revocation is governed under the aforesaid provisions of the PEMRA Ordinance 2002. The license issued by PEMRA, either to Satellite T.V. Channels or to Cable T.V. Operators is governed under the provisions of PEMRA Ordinance 2002, whereas, the terms of such licenses are required to be determined and shall be governed in consonance to the provisions of the PEMRA Ordinance, 2002, keeping in view the purpose for which such enactment has been made. The competent authority is at liberty to regulate its affairs and unless such regulation is arbitrary, discriminatory or demonstrably irrelevant to the policy, which the legislature is free to adopt, cannot be interfered on the grounds of mere commercial expediency or some financial implications, as have been argued by the counsel for the petitioners in the instant case. It will not be out of place to observe that the Media, particularly the Electronic Media, in our country enjoys reasonable Independence, whereas a large number of Satellite T.V. Channels are operating throughout country freely and have access to all public information except the one prohibited by law. Electronic Media has now acquired an important position towards providing information and public instructions, and can even build public opinion on various national, political, religious and social issues for having been provided an easy access to public at large through licenses issued by the Government for operation of Satellite T.V. Channels under the PEMRA Ordinance, 2002 and in terms of PEMRA Rules, 2009. Therefore, this free access to public at large provided by Government to the petitioners casts a great responsibility upon them not only to abide by the Constitution, law, rules and regulations but also to ensure that a certain discipline and restraint shall be demonstrated by them which may not only serve the purpose of the Constitution and law but may also be helpful in creating a better civilized society which is well informed, more educated tolerant and capable of forming correct opinion on religious, political, social, national or international issues and to take right decisions in their individual as well as collective lives.
20. However, in case of any violation of law, rules and regulations, or the terms of the license agreement, a reciprocate action, keeping in view the gravity of the violation and its impact upon the scheme of law, rules and regulations, has to be taken in terms of the provisions of PEMRA Ordinance, 2002 to ensure the compliance of law, rules and regulations. In the instant case the petitioners have admittedly violated the express provisions of Rule 15(3) of the PEMRA Rules, 2009 as well as provisions of clause 10.4 of the license agreement, which otherwise is binding upon the petitioners, like other all T.V. Channel Operators pursuant to their contractual obligation. Hence, the impugned rule 15(3), clause 10.4 of license agreement and the Notices issued by the respondents to the petitioners for violating the impugned rule and the terms of the license agreement as referred to hereinabove are neither unconstitutional nor suffer from any jurisdictional error or illegality, hence, do not require any interference by this Court while exercising constitutional jurisdiction under Article 199 of the Constitution of Republic of Pakistan, 1973. We may observe that violation of law, rules, regulations and the terms of license agreement by the petitioners and the avoidance of financial liability for such violation cannot be allowed under the garb of untenable pleas or on mere challenging the vires of rule or the term of the license agreement as referred to hereinabove by the petitioners. Accordingly, we do not find any merits in the instant petition, which is hereby dismissed along with listed applications with cost of Rs.50,000/- to be shared by the petitioners equally.