OMAR SIAL, J.----AR Y Communications (Pvt.) Limited operates a television channel by the name of ARY Digital ("ARY"). ARY is telecasting 'a drama by the name of Jalan . The Pakistan Electronic Media Regulatory Authority ("PEMRA ") wants the drama not to be telecast as several complaints have been received by it from the general public regarding the theme of the drama.
2. PEMRA, on 29-10-2020, while invoking its power under section 27 of the PEMRA Ordinance, 2002, ordered ARY to take the drama off air and prohibited its telecast until the objectionable content was removed. ARY being aggrieved by the prohibition notice issued by PEMRA has challenged the same through these proceedings.
3. Mr. Abid Shahid Zuberi, learned counsel for ARY, has argued that the impugned notice must be set aside as the due process in its issuance has not been followed by PEMRA. The learned counsel has primarily stressed that a mechanism is prescribed under the PEMRA Ordinance, 2002 to address situations such as the one which has arisen i.e. the complaints should have first been examined by the Council of Complaints, constituted under section 26 of the Ordinance, which was not done. Mr. Kashif Hanif, learned counsel for PEMRA, on the other hand, argued that although the Council of Complaints was established under section 26 of the Ordinance, yet, its role was limited to dealing with issues that arose under sections 29(6) and 30 of the Ordinance. According to Mr. Hanif, the power given to PEMRA under section 27 of the Ordinance was an independent and standalone one and was not restricted in any manner by section 26. Mr. Hanif was also of the view that section 27 envisages an action in those complaints that require to be addressed immediately and hence in the circumstances of the present case there was no need for the issue to be referred to the Council of Complaints. Both sides have restricted their argument to the question as to whether the due process of law was followed or not. Both sides 'agree that the Council of Complaints was not engaged in any manner prior to the impugned notice having been issued.
4. Having heard the learned counsel for ARY as well as the learned counsel for PEMRA, my observations are as follows.
5. It was brought to the court's notice that a similar notice issued by PEMRA earlier was set aside by this court on 15-9-2020 (in M.A. No. 32 of 2020) and it was ordered that the matter be remanded back to PEMRA to look at it afresh. PEMRA preferred an appeal before the Honorable Supreme Court impugning the said order . I have been informed by both counsels that the said appeal has been dismissed by the Honorable Supreme Court.
6. It would facilitate reference if sections 26 and 27 of the Ordinance are reproduced below .
26. Council of Complaints.----(1) The Federal Government shall, by notification in the Official Gazette, establish Councils of Complaints at Islamabad, the Provincial capitals and also at such other places as the Federal Government may determine.
(2) Each Council shall receive and review complaints made by persons or organizations from the general public against any aspects of programmes broadcast or distributed by a station established through a licence issued by the Authority and render opinions on such complaints. (underscoring Nos been inserted)
(3) Each Council shall consist of a Chairperson and five members being citizens of eminence from the general public at least two of whom shall be women.
(3-A) The Councils shall have the powers to summon a licensee against whom a complaint has been made and call for his explanation regarding any matter relating to its operation.
(4) The Authority shall formulate rules for the functions and operation of the Councils within two hundred days of the establishment of the Authority .
(5) The Councils may recommend to the Authority appropriate action of censure, fine against a broadcast or CTV station or licensee for violation of the codes of programme content and advertisements as approved by the Authority as may be prescribed.
27. Prohibition of broadcast media or distribution service operation. The Authority shall by order in writing, giving reasons therefore, prohibit any broadcast media or distribution service operator from.
(a) broadcasting or re-broadcasting or distributing any programme or advertisement if it is of the opinion that such particular programme or advertisement is against the ideology of Pakistan or is likely to create hatred among the people or is prejudicial to the maintenance of law and order or is likely to disturb public peace and tranquility or endangers national security or is pornographic, obscene or vulgar or is offensive to the commonly accepted standards of decency; or
(b) engaging in any practice or act which amounts to abuse of media power by way of harming the legitimate interests of another licensee or willfully causing damage to any other person.
7. It is clear from the above sections of law that it is the Council that the legislature has empowered to receive and review complaints made by persons or organizations from the general public against any aspects of programmes broadcast or distributed by a station. The Council may then make its recommendations to the Authority .
8. The "Authority" as referred to in section 27; is the Pakistan Electronic Media Regulatory Authority , and section 6 of the Ordinance stipulates that the Authority shall consist of a Chairman and 12 members to be appointed by the President of Pakistan.
9. I have no doubt in my mind that the legislature was aware that freedom of expression is a fundamental right given by the Constitution and that all legislation is subordinate to it. It would be a reasonable assumption that this is the reason that safeguards against any arbitrary action were built into the legislation. It is the Authority that has been empowered to take action against a licensee, however , a two-tier process has been prescribed to ensure that an opinion (on complaints such as the present one) from a diverse range of people is sought before action is taken.
If not elimination, such diverse opinion would at least ensure mitigation of personal bias of an individual in a decision-making process. Mention must also be made to Rule 8 of the Pakistan Electronic Media Regulatory Authority (Councils of Complaints) Rules, 2010. Rule 8 prescribes that any person aggrieved by any aspect of a program or an advertisement may lodge a complaint with the Council or an author ized officer in whose jurisdiction the program is viewed. An authorized officer has been defined to be an officer authorized by the Authority . The same Rule i.e. 8, as pointed out by Mr. Zuberi, also provides that even if a complaint is received by an authorized officer, the same is to be forwarded by him to the Council for further action. The Council will then recommend action. The Authority is required to take into consideration the recommendations of the Council but is empowered pursuant to Rule 8(5) to either agree or disagree with the recommendations. It is, however , required to give its reasons for doing so and then pass any appropriate orders. In my opinion this is where section 27 of the Ordinance (in complaints such as the present one) will kick in, and not before the process given in section 26 is complied with.
Mr. Kashif Hanif has argued articulately however while doing his best, has struggled to justify the apparent failure on the part of PEMRA to follow due process. I am unable to agree with Mr. Hanif that the Council can be bypassed by the Authority as and when it feels the need to bypass it.
10. Mr. Hanif has also put on record minutes of the 10th Authority Meeting dated 26-1-2015. Item 5 of the minutes reflects that the Authority has delegated its powers under section 27 of the Ordinance for prohibition of broadcast/rebroadcast of any program to the Chairman. In effect, according to the argument raised by Mr. Hanif i.e. the Authority is empowered to take action, one person has been made the sole arbiter of deciding what is decent or indecent, moral or immoral etc. This surely is neither the spirit of democracy nor the objective of the legislature which went to great lengths to ensure that personal likes and dislikes of an individual do not taint the Authority's decisions.
11. Mr. Hanif has relied on 2 authorities in support of his argument. One is a decision of the Islamabad High Court reported as Labaik (Pvt.) Limited .v. PEMRA (2018 YLR 2350 ). This authority is of not much help in the present circumstance because in that case, the matter was heard at length by the Coun cil of Complaints before orders were passed by the Authority . The second authority relied upon is reported as Labaik (Pvt.) Limited v. PEMRA (PLD 2020 Islamabad, 343). In this case, it appears that whether a prohibition notice had been validly issued was not raised as an argument by the appellant hence no finding on the same was given.
12. In view of the above, the impugned notice is set aside on the ground that due process prescribed by law was not complied with in its issuance. The appeal is disposed of in the foregoing terms.
13. In the end I would like to put on record the court's appreciation for the professional manner in which both learned counsel have argued their respective positions, maintaining the decoru m of the court throughout the proceedings.