Self-willed government

The government promulgated an extraordinary Ordinance last Saturday. The new law requires private broadcasters to share their live signals with Doordarshan (DD), which is the public broadcaster. It applies to 'all important' sports events, and was provoked by the spat between a private broadcaster, Nimbus, and DD. Nimbus had won the rights to broadcast all one-day international (ODI) cricket matches in India in a sealed bid auction. DD had also participated in that auction and lost because it had bid less than Nimbus. This acquisition of telecast rights by a private broadcaster resulted in a very large number of cricket fans""50 million, according to one estimate""who have access only to DD not being able to watch the matches. There was a public outcry when this first happened at the Nagpur ODI against the West Indies. The matter went to the court, which sensibly decided that DD could have the signal fed into its distribution network with a delay""seven minutes in this case. There the matter should have been allowed to rest because it is a neat way of differentiating the market between those who pay for cable and satellite reception, and those who don't""and it really does not matter if the latter set of viewers gets to see the state of play with some minor delay. But the minister for information and broadcasting, Priyaranjan Dasmunsi, decided to change the law. Whether it is challenged remains to be seen. Perhaps it should be, if only to give some clarity to this amazing extension of the principle of eminent domain.

Eminent domain is the American term for something that has been in use for a long time under different names. It comes from the Latin dominium eminens and enunciates that the "... the property of subjects is under the eminent domain of the state". From this it follows that the state can do pretty much what it wants with private property because civilised behavioiur requires that private ends should give way to public need. The critical requirement is public purpose. And, compensation should always be paid to those whose property is taken over, fully or in part. The right was first exercised in England when the king acquired a salpetre mine because it was needed for making munitions. The mine owner challenged the king, who won the case on the grounds cited above. Since then governments have used it quite a lot. But the public interest in question has always been in respect of things like building a road or railway line, or military installations or public buildings, and so on. Sometimes, it has also been used for acquiring contracts, patents, trade secrets and copyrights, but such cases are rare. However, never has it been used for acquiring private property for the purposes of entertainment because no one has thought it right to assert that an important public interest is not being served if people can't watch a sporting event.

It is in this sense that the government has extended the scope of eminent domain. This extension is fraught with dangers because the precedent, should it become one, will allow future governments to exercise the right not sparingly and after paying compensation but arbitrarily, if for nothing else, because it gets them political popularity. Indeed, just how arbitrary the government has been becomes apparent when DD now demands a share of the advertising revenue. No one thinks of the basis on which Nimbus might have bid the amount that got it the contract, and whether it might now go bust. Today it is cricket; tomorrow it could be other PPPs.