TMI Blog2017 (8) TMI 1496X X X X Extracts X X X X X X X X Extracts X X X X ..... terrestrial and DTH networks and not to Cable Operators so as to enable the Cable TV operators to reach such consumers who have already subscribed to a cable network. Appeal fails and is dismissed. - CIVIL APPEAL NO.(S) 10732-10733 OF 2017, 10734-10735 OF 2017, 10738-10739 Of 2017, 10736-10737 Of 2017[Arising Out Of Special Leave Petition (Civil)Nos. 4574-4575 OF 2015, 419-420 Of 2017, 12743-12744 Of 2016, 4572-4573 OF 2015] - - - Dated:- 22-8-2017 - Ranjan Gogoi And Navin Sinha, JJ. JUDGMENT Ranjan Gogoi, 1. Leave granted in all the Special Leave Petitions. 2. The precise origin of the game of cricket, though largely unknown, has been traced, at least, to late 15th Century England. With the expansion of British Empire the game of cricket travelled to different parts of the globe including India. Today, if there has to be a national game in India, cricket would certainly be a front-runner. The packed stands in all cricketing venues is certainly not the full picture. Live telecast of all major cricketing events, domestic and international, is beamed to millions of homes in the country. Telecasting/Broadcasting rights are leased out by the organizing body i. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bharati s terrestrial and DTH networks but are subscribers of such cable operators or other DTH service providers. Such retelecast of the signals received by the Prasar Bharati under Section 3 of the Sports Act, 2007 by the Cable Operators flow from the operation of Section 8 of the Cable Television Networks (Regulation) Act, 1995 (hereinafter referred to as the Cable Act, 1995 ) which provision has been perceived to require Cable Operators to mandatorily carry in their cable service such Doordarshan channels that may be notified by the Central Government under the said Section 8 of the Cable Act. As DD 1(National) is one of the channels mandatorily required to be carried by the Cable Operators (due to its maximum reach) and the live telecast of cricketing events which the content rights owners/holder is obliged to share with Prasar Bharati under Section 3 of the Sports Act, 2007 is retransmitted through the said Doordarshan channel i.e. DD 1(National) the cricketing events are telecast to millions of viewers by Cable Operators who otherwise charge the subscribers. By virtue of the aforesaid arrangement Cable Operators do not have to subscribe to the specific sports channels of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, failing which the licensor shall be at liberty to take action as per clause 20.1 of this Agreement. 8. Subsequently, ESPN Software India Pvt. Ltd. and Star India Pvt. Ltd. had been impleaded as petitioner Nos. 3 and 4 in the aforesaid writ petitions in view of Media Rights Agreement effective from April 2012 upto March 2018, as referred to above. 9. The aforesaid appeal (LPA No.1327 of 2007) and Writ Petition (No.8458 of 2007) were allowed by the Division Bench by holding that on an interpretation of the provisions of Section 3 of the Sports Act, 2007 and Section 8 of the Cable Act, 1995 the signals received by Prasar Bharati from the respondents should not be placed in the designated Doordarshan channels which are to be compulsorily carried by the Cable Operators under Section 8 of the Cable Act, 1995. Aggrieved the present appeals have been filed by the Union of India, Prasar Bharati, Home Cable Network Private Limited and Sopan Foundation. 10. We have heard Shri Mukul Rohatgi, learned Attorney General (as he then was) appearing for the Union of India and Prasar Bharati, S/Shri Harish Salve, P. Chidambaram, Sanjay Hegde, A.M. Singhvi, Sudhir Chandra, Gopal Jain, lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor in order to operate a cable television network. Section 2(aiii) defines cable operator in the following terms. 2(aiii) cable operator means any person who provides cable service through a cable television network or otherwise controls or is responsible for the management and operation of a cable television network and fulfils the prescribed eligibility criteria and conditions; 16. Section 8 of the Cable Act, 1995 as amended by Act No.21 of 2011 with retrospective effect from 25th October, 2011 is in the following terms: 8. Compulsory transmission of Certain channels.-(1) The Central Government may, by notification in the Official Gazette, specify the names of Doordarshan channels or the channels operated by or on behalf of Parliament, to be mandatorily carried by the cable operators in their cable service and the manner of reception and re-transmission of such channels: Provided that in areas where digital addressable system has not been introduced in accordance with the provisions of sub-section (1) of section 4A, the notification as regards the prime band is concerned shall be limited to the carriage of two Doordarshan terrestrial channels and one regional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice of the aforesaid notification would be required to be taken as in substance and in law the position is no different. 17. The next set of statutory provisions which would be required to be noticed, at this stage, are those to be found in the Sports Act, 2007. The preamble to the Sports Act, 2007 makes it clear that it has been enacted to provide access to the largest number of listeners and viewers, on a free to air basis, of sporting events of national importance through mandatory sharing of sports broadcasting signals with Prasar Bharati and for matters connected therewith or incidental thereto. Section 3 of the Sports Act, 2007, on the scope and width of which provision the core arguments have been advanced so as to enable the Court to determine the true scope and purport thereof in the light of the provisions of Section 8(1) of the Cable Act, 1995 and the notifications issued thereunder is in the following terms: 3. Mandatory sharing of certain sports broadcasting signals.-(1) No content rights owner or holder and no television or radio broadcasting service provider shall carry a live television broadcast on any cable or Direct-to-Home network or radio commentary b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned to receive and re-transmit television channels or programmes for reception by multiple subscribers; xxx (j) Direct-to-Home (DTH) broadcasting service means a service for multi-channel distribution of programmes direct to a subscriber's premises without passing through an intermediary such as a cable operator by uplinking to a satellite system; xxx (s) sporting events of national importance means such national or international sporting events, held in India or abroad, as may be notified by the Central Government in the Official Gazette to be of national importance; xxx (t) terrestrial television service means a television broadcasting service provided over the air by using a land-based transmitter and directly received through receiver sets by the public; 19. From the above, it can be noticed that under Section 3 of the Sports Act, 2007, no content rights owner or holder and no television or radio broadcasting service provider can carry a live television broadcast on any cable or DTH network or radio commentary broadcast in India, of sporting events of national importance unless it simultaneously shares the live broadcasting signal, without its a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial and DTH networks of Prasar Bharati. Any such view, according to Shri Rohatgi, would be counter-productive and go against the mandate of Section 3 of the Sports Act, 2007. It is also pointed out the provisions of sub-section (2) of Section 3 of the Sports Act, 2007 to contend that the possible loss of revenue arising to the content rights owners/holder due to the mandatory requirement of sharing live feeds with the Prasar Bharati has been adequately taken care of by the scheme of arrangement of revenue contained in sub-section (2) of Section 3 of the Sports Act, 2007. It is urged that it is in the light of the above that the provisions of Section 8 of the Cable Act, 1995 have to be construed. It is further contended that though the Cable Act, 1995 is anterior to the enactment of the Sports Act, 2007, Section 8 of the Cable Act, 1995 should not be understood to have been whittled down by the enactment of Section 3 of the Sports Act, 2007 in the absence of any conspicious indication of such legislative intent in Section 3 of the Sports Act, 2007. In fact, according to Shri Rohatgi, the mandatory duty cast on the Cable Operators by Section 8 of the Cable Act, 1995 is another step i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 8(1) of the Cable Act, 1995 engrafts a must carry obligation and such must carry obligation cannot extend the scope of the must share mandate contained in Section 3 of the Sports Act, 2007. Emphasis is laid on the words its terrestrial networks and Direct-to-Home networks appearing in Section 3 of the Sports Act, 2007 to contend that the must share mandate must be understood to be to enable the Prasar Bharati to re-transmit the same on its terrestrial and DTH networks only. On behalf of Star India Pvt. Ltd. it is specifically contended that a huge amount of revenue of over 3000 crore has been paid by Star India Pvt. Ltd. towards broadcasting/telecasting rights which must be allowed to have full effect and any restriction in the exercise of such right, if at all, can operate only to the extent explicitly provided for in Section 3 of the Sports Act. 25. On behalf of BCCI, Shri Amit Sibal, learned Senior Counsel has specifically argued that any extended meaning to Section 3 of the Sports Act, 2007 beyond what flows from its plain language would have the effect of infringing the rights of the BCCI under Article 19(1)(a) of the Constitution. Several precedents have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aps justified, that the new trend and upsurge may make Doordarshan and its regional channels extinct resulting in dissemination of awareness on national issues. This is evident from the report of the Standing Committee to whom the Cable T.V. Network (Regulation) Bill 1993 was referred to. This is why Section 8 of the Cable Act, 1995 was enacted, namely, to obligate Cable TV operators to carry news and information concerning the developments of the country, Government Policies and other such related matters even to all such households who may have availed of cable services. In fact, transmission of Doordarshan channels by Cable Operators is always a complimentary part of any bouquet of services that a Cable Operator may make available to a consumer. 28. On the other hand, the Sports Act, 2007 which is a later enactment had altogether a different object for its enactment, namely, to provide access to the largest number of listeners and viewers, on a free to air basis, of sporting events of national importance through mandatory sharing of sports broadcasting signals with Prasar Bharati and for maters connected therewith or incidental thereto. Section 3 of the Sports Act, 2007 is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st on Cable Operators to transmit the DD1 (National) channel and the transmission of Live feed of major sports events of national importance on the said channel by the Doordarshan as a matter of mere coincidence instead of a legislative mandate. Hypothetically, it is always open to the Central Government to denotify DD1 (National) from the notified channels in the notification under Section 8 of the Cable Act. Surely, the effect and operation of Section 3 of the Sports Act cannot be left to be decided on the basis of the discretion of the Central Government to include and subsequently exclude or not to include at all the DD1 (National) channel in a notification to be published under Section 8 of the Cable Act, 1995. Insofar as DTH network of private operators is concerned, the same does not even come under the operation of a Cable Operator. 30. Needless to say our conclusions above do not, in any manner, impact or effect the rights of the appellant under Section 12(3)(c) of the Prasar Bharati Act which rights always remain available for exercise, if so desired. 31. On the basis of the above discussions, we, therefore, come to the conclusion that under Section 3 of the Sports ..... X X X X Extracts X X X X X X X X Extracts X X X X
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