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TMI Blog2018 (5) TMI 1762X X X X Extracts X X X X X X X X Extracts X X X X ..... pra, Ms.Sneha Jain, Ms.Aakanksha Munjhal, Ms.Gitanjali Mathew, Ms.Monisha Suri, Ms.Surasika Parthasarathy, Mr.Utsav Trivedi For the respondent : Mr.G.Rajagopalan, ASG, Mr.Venkatasamy Babu, Mr.P.Wilson, Sr.C., for M/s P.Wilson Associates , Mr.Saket Singh , Mr.Richardson Wilson Intervenor in : Mr.G.Masilamani, Sr.C., Mr.Jose John, Mr.M.Narendran, Ms.Lilly Francis, Ms.Nikitha, J.S.,, Mr.AR.L.Sundaresan, S.C., Mr.Arjun Suresh for WM/s Dua Associates, Mr.Jayant K.Mehta Mr.B. Kishore for M/s Dua Associates, Mr. Krishna Srinivas for M/s S. Ramasubramanian Associates COMMON ORDER A Division in the Bench created this reference. Ironically, answering the reference would create a decision of the Division Bench. 2. If patience is considered as a virtue, it could be stated to have well served, upon hearing the submissions of eloquence of the learned counsels representing competing interest. 3.Heard the learned Senior Counsels and learned counsel appearing for the petitioners, respondents and intervenors and perused the documents, pleadings and written arguments. 4. SCOPE OF REFERENCE:- 4.1. Before venturing into the case in detail, it would be appropriate to define the role of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry Authority of India Act, 1997,(hereinafter referred to as "the TRAI Act, 1997") over "content". Resultantly, the one and only issue to be considered is to the existence of "content" as a "fact" in the impugned Regulations and Tariff Order. The said contention so made cannot be countenanced for more than one reason. It is an half hearted attempt to read the judgment as a statute. In the lead judgment, the scope of the TRAI Act, 1997, The Copyright Act, 1957 and the Tamil Nadu Cable Television Networks (Regulation) Act, 1995, and rules were indeed considered, though to a limited extent. While it is a case of the petitioners that the regulatory authority, hereinafter referred to as TRAI, through the impugned Regulations and Tariff Order, regulates the "content", no such power is available under the TRAI Act, which jurisdiction is occupied by the Copyright Act, 1957. In the differing judgment, the Hon'ble Chief Justice has clearly stated in paragraph 3 of the order that the question raised in the writ petitions is to the jurisdiction of TRAI on the availability of the power under the TRAI Act to issue the impugned Regulations and Tariff Order. Incidentally, it was further held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not in conformity with the parent Act / plenary Act. Therefore, clauses 6(1), second proviso to 6(1), proviso to 7(2), 7(4), first proviso to 7(4) and 10(3) of the said Regulations and clauses 3(1), 3(2)(b), second proviso to 3(2)(b), first proviso to 3(3), second proviso to 3(3), third proviso to 3(3), fourth proviso to 3(3), fifth proviso to 3(3), sixth proviso to 3(3) and 3(4) of the said tariff order are struck down as not in conformity with the parent act, i.e., TRAI Act. 8(b) With regard to the other two impugned provisions, as we were given to understand in the course of the hearing that they are relevant and necessary for some other clauses also other than those which have been put in issue in the instant writ petitions, they deserve to be saved to the extent they survive and serve the purpose other than serving implementation or any other purpose of the provisions which we have struck down. Therefore, the other impugned provisions, i.e., clause 11(2) in the said Regulations as also clause 4(2) in the said tariff order will continue to be in the books, but cannot be pressed into service for anything to do with the provisions which we have struck down supra. In other words ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter for spelling out the difference. 5.2. For deciding the issues, a factual setting is necessary. In the lead judgment the facts have been captured with abundant clarity. Therefore, this Court is relieved of the repetition of factual narration except to the extent required. 5.3. The petitioners are broadcasters and television channels. The broadcast of the petitioners is meant to reach the general public being the subscriber. The broadcasting would involve both uplinking and downlinking. It has got three principal actors in its exercise viz., broadcasters-petitioners, distribution platform operators (multi system operators, etc.,) and the consumers, who are otherwise called customers/subscribers. There is also a fourth fringe player whose limited role stands in between the distributor platform operator and the subscriber called local cable TV operator. 5.4. As the telecommunication service in general and broadcasting service, in particular, involves a regulatory regime apart being governed by a sector specific Act, the process of uplinking and downlinking by a broadcaster requires permission, which according to the respondents is relatable to Section 4 of the Indian Telegra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fferent categories of channels, such as, Free to Air Channels, Pay Channels, Standard and High Definition Channels. A broadcaster, after obtaining permission, gives its own equipment to the distributor for downloading the signals. A distributor does the work of unencrypting the encrypted signals of the broadcaster and thereafter, re-encrypts it for transmission to the end user. These signals are said to have been communicated to the end users/subscribers when they reach the set top box. This set top box will be fixed at the place of the subscriber. Therefore, the process involves a chain of events before a signal reaches the subscriber. 5.9. Atleast from the year 2004 onwards, the process of regulating the broadcasting services under TRAI Act, leading to the present impugned Regulations and the Tariff Order, started happening. 5.10. Accordingly, by the Tariff Order dated 01.10.2004, the ceiling price of television channel was fixed. By the second amendment Order dated 01.12.2004, 7% increase on the television channel was made. Similarly, under the third tariff order dated 31.08.2006, the price of the television channel was capped at Rs. 5/- (ceiling limit) apart from mandating th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to as the Act), the Central Government hereby entrusts the following additional functions to the Telecom Regulatory Authority of India, established under Sub-section (1) of Section 3 of the Act, in respect of broadcasting services and cable services, namely: (1) Without prejudice to the provisions contained in clause (a) of subsection (1) of section 11 of the Act, to make recommendation regarding -- (a) the terms and conditions on which the 'addressable systems' shall be provided to customers Explanation--For the purposes of this clause, 'addressable system' with its grammatical variation, means an electronic device or more than one electronic devices put in an integrated system through which signals of cable television network can be sent in encrypted or unencrypted form, which can be decoded by the device or devices at the premises of the subscriber within the limits of authorisation made, on the choice and request of such subscriber, by the cable operator for that purpose to the subscriber. (b) the parameters for regulating maximum time for advertisements in pay channels as well as other channels. (2) Without prejudice to the provisions of sub-sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute. Admittedly, the respondent is also a service provider within the meaning of the provisions of the Act. The dispute herein is, thus, between two service providers." 5.16. The petitioners were asked by the impugned regulations and tariff order package and sell their pay channels, free to air channels, High and Standard definition channels in a specified manner keeping in mind the overall interest of all inclusive of the general public. Thus, through this process, the petitioners are made to make their offers as a-la-carte and bouquet channels. They are asked not to mix the pay channels and free to air channels with each other. Therefore, the offer should either be a bouquet of free to air channels or pay channels. Similarly, they are not supposed to offer in a bouquet, both high definition and standard definition formats of the same channels. A monetary cap was fixed on the bouquet of pay channels. The extent of discount offer is also restricted to encourage the customer to effectively exercise its choice to choose channel of their liking on an a-la-carte basis. Thus, the impugned Regulations and the Tariff order make it mandatory for the broadcasters to make their offers in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the legality rather than the logic, reason and object behind. Hence, it would be imperative to answer issues framed supra, which were, in fact, dealt with in both judgments in their own ways. 6. PRINCIPLES:- 6.1. Before venturing further let us keep in mind the general principles of law required to be applied in the case. 6.2. Judging a statute through "literal" to "Hyden's Golden Rule" has gone through a circle. What is being applied by the Courts today is on the reasonable, creative and Fair Construction Principle. A liberal interpretation is required more in a social, welfare legislation with the objective in mind. 6.3. LORD DENNING: "A Judge should ask himself the question (how). If the makers of the Act had themselves come across this rule in the texture of it, how would they have straightened it out? He must do so as they would have done. A Judge must not alter the material on which (the Act) it is woven but he can and should iron out the creases." 6.4. CRAIES IN STATUTE LAW: "... It is the duty of Courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed' .. that in ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... words in an entry is the rule. Hence legislative entries are to be interpreted broad and wide. However, the general rule of interpretation also would apply by a combined reading of provisions, objects and reasons put together as a whole. 6.9. R.S.REKHCHAND MOHOTA SPINNING & WEAVING MILLS LTD., VS. STATE OF MAHARASHTRA (1997) 6 Supreme Court Cases 12). "8.........The interpretation of the statute would apply to the interpretation of the entries subject to reservation that their application is of necessity conditioned by the subject-matter of the enactment itself. It should be remembered that the problem before us is to construe a word appearing in Entry 45 which is a head of legislative power. It cannot be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended to it. It is, therefore, clear that in construing an entry in a list conferring legislative powers, the widest possible construction, according to their ordinary meaning, must be put upon the words used therein. Reference to legislative practice may be admissible for cutting down the meaning of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, inspire those whose duty it is to interpret the Constitution, and the courts are not free to stretch or to pervert the language of an enactment in the interest of any legal or constitutional theory. Constitutional adjudication is not strengthened by such an attempt but it must seek to declare the law but it must not try to give meaning on the theory of what the law should be, but it must so look upon a Constitution that it is a living and organic thing and must adapt itself to the changing situations and pattern in which it has to be interpreted. It has also to be borne in mind that where division of powers and jurisdiction in a federal Constitution is the scheme, it is desirable to read the Constitution in harmonious way. It is also necessary that in deciding whether any particular enactment is within the purview of one legislature or the other, it is the pith and substance of the legislation in question that has to be looked into. It is well settled that the various entries in the three lists of the Indian Constitution are not powers but fields of legislation. The power to legislate is given by Article 246 and other articles of the Constitution. The three lists of the Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cles of the Constitution. The legislative fields are of enabling character designed to define and delimit the respective areas of legislative competence of the respective legislatures. There is neither implied restriction imposed on the legislature nor is any duty prescribed to exercise that legislative power in a particular manner. But the legislation must be subject to the limitations prescribed under the Constitution. 20. When the vires of an enactment is challenged, it is very difficult to ascertain the limits of the legislative power. Therefore, the controversy must be resolved as far as possible, in favour of the legislative body putting the most liberal construction upon the relevant legislative entry so that it may have the widest amplitude. The court is required to look at the substance of the legislation. It is an equally settled law that in order to determine whether a tax statute is within the competence of the legislature, it is necessary to determine the nature of the tax and whether the legislature had power to enact such a law. The primary guidance for this purpose is to be gathered from the charging section. It is the substance of the impost and not the form that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . By a general principle, a special Act is to be given primacy over a general one. However, this also has to be seen on the provisions governing both enactments. There may be a case where General Act may have the substantive provision as against the special one. 7.4. In MACQUARIE BANK LIMITED VS. SHILPI CABLE TECHNOLOGIES LIMITED ((2018) 2 Supreme Court Cases 674), the Supreme Court has considered the principle governing interpretation through the following paragraphs. "27. Equally, Dr. Singhvi's argument that the Code leads to very drastic action being taken once an application for insolvency is filed and admitted and that, therefore, all conditions precedent must be strictly construed is also not in sync with the recent trend of authorities as has been noticed by a concurring judgment in Ms. Eera through Dr. Manjula Krippendorf v. State (Govt. of NCT of Delhi) & Anr, Criminal Appeal Nos. 1217-1219 of 2017 decided on July 21, 2017. In this judgment, the correct interpretation of Section 2(1)(d) of the Protection of Children from Sexual Offences Act, 2012 arose. After referring to the celebrated Heydon's case, 76 E.R. 637 [1584] and to the judgments in which the golden rule of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions can be put to a statutory provision, each judge having a free play to put his own interpretation as he likes. This would be destructive of judicial discipline, and also the basic principle in a democracy that it is not for the Judge to legislate as that is the task of the elected representatives of the people. Even if the literal interpretation results in hardship or inconvenience, it has to be followed (see G.P. Singh's Principles of Statutory Interpretations, 9th Edn., pp. 45-49). Hence departure from the literal rule should only be done in very rare cases, and ordinarily there should be judicial restraint in this connection." 30. Regard being had to the modern trend of authorities referred to in the concurring judgment in Ms. Eera through Dr. Manjula Krippendorf (supra), we need not be afraid of each Judge having a free play to put forth his own interpretation as he likes. Any arbitrary interpretation, as opposed to fair interpretation, of a statute, keeping the object of the legislature in mind, would be outside the judicial ken. The task of a Judge, when he looks at the literal language of the statute as well as the object and purpose of the statute, is not to inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be sent to a Magistrate empowered to take cognizance of offence. In relation to offence under the Act, the Magistrate has no power to take cognizance. That power is exclusively with the Special Court and thus report under Section 157 of the Code will have to be sent to the Special Court though the section requires it to be sent to the Magistrate. It is clear that for the expression "Magistrate" in Section 157, so far as the Act is concerned, it is required to be read as "Special Court" and likewise in respect of other provisions of the Code. If the expression "Special Court" is read for the expression "Magistrate", everything will fall in line. This harmonious construction of the provisions of the Act and the Code makes the Act work. That is what is required by principles of statutory interpretation. Section 9(1) of the Act provides that the Special Court shall in the trial of such cases follow the procedure prescribed by the Code for the trial of warrant cases before the Magistrate. The expression "trial" is not defined in the Act or the Code. For the purpose of the Act, it has a wider connotation and also includes in it the pre-trial stage as well. Section 9(2) makes the Specia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e specific or special statute clearly includes the matter in controversy (Edmond v. United States [137 L Ed 2d 917 : 520 US 651 (1997)] , Warden v. Marrero [41 L Ed 2d 383 : 417 US 653 (1974)] )." 45. More recently, in Binoy Viswam v. Union of India (2017) 7 SCC 59 at 132, this Court construed the Income Tax Act, 1961 and the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 harmoniously in the following manner: "98. In view of the above, we are not impressed by the contention of the petitioners that the two enactments are contradictory with each other. A harmonious reading of the two enactments would clearly suggest that whereas enrolment of Aadhaar is voluntary when it comes to taking benefits of various welfare schemes even if it is presumed that requirement of Section 7 of the Aadhaar Act that it is necessary to provide Aadhaar number to avail the benefits of schemes and services, it is up to a person to avail those benefits or not. On the other hand, purpose behind enacting Section 139-AA of the Act is to check a menace of black money as well as money laundering and also to widen the income tax net so as to cover those persons wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Advocates Act deals with the fundamental right under Article 19(1)(g) of the Constitution to practice one's profession. Therefore, a conjoint reading of Section 30 of the Advocates Act and Sections 8 and 9 of the Code together with the Adjudicatory Authority Rules and Forms thereunder would yield the result that a notice sent on behalf of an operational creditor by a lawyer would be in order." 7.5. KSL AND INDUSTRIES LIMITED VS. ARIHANT THREADS LIMITED AND OTHERS ((2015) 1 Supreme Court Cases 166). "This Court in solidaire case approved the observations of the Special Court to the effect that if the legislature confers a non-obstante clause on a later enactment, it means that the legislature intends that the later enactment should prevail. Further, it is a settled rule of interpretation that if one construction leads to a conflict, whereas on another construction two Acts can be harmoniously construed, then the latter must be adopted." 8. PRESUMPTION: While holding that there is a presumption in favour of the legislation qua the scope of both the enactments on the same subject matter, it was accordingly held by the Supreme Court in KISHOREBHAI KHAMANCHAND GOYAL VS. STATE OF GU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eate any confusion by retaining conflicting provisions and, therefore, when the court applies the doctrine, it does not more than give effect to the intention of the Legislature by examining the scope and the object of the two enactments and by a comparison of their provisions. The matter in each case is one of the construction and comparison of the two statutes. The Court leans against implying a repeal, "unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time, a repeal will not be implied, or that there is a necessary inconsistency in the two Acts standing together." (See Craies on Statute Law, Seventh Edition, page 366, with reference to Re: Berrey [1936] Ch. 274 ). To determine whether a later statute repeals by implication an earlier, it is necessary to scrutinize the terms and consider the true meaning and effect of the earlier Act. Until this is done, it is impossible to ascertain whether any inconsistency exists between the two enactments. The areas of operation of the Act and the Establishments Act in question are different with wholly different aims and objects. They operate in their respective fields and there is no imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al fiction, the object and purpose of such a fiction has to be seen, understood and applied. Such a presumption has to be taken thereafter, to its logical conclusion. 11.2. RAJASTHAN STATE INDUSTRIAL DEVELOPMENT AND INVESTMENT CORPORATION AND ANOTHER VS. DIAMOND & GEM DEVELOPMENT CORPORATION LIMITED AND ANOTHER ((2013) 5 Supreme Court Cases 470). " VI. "As if" - Meaning of 26. The expression "as if", is used to make one applicable in respect of the other. The words "as if" create a legal fiction. By it, when a person is "deemed to be" something, the only meaning possible is that, while in reality he is not that something, but for the purposes of the Act of legislature he is required to be treated that something, and not otherwise. It is a well settled rule of interpretation that, in construing the scope of a legal fiction, it would be proper and even necessary, to assume all those facts on the basis of which alone, such fiction can operate. The words "as if", in fact show the distinction between two things and, such words must be used only for a limited purpose. They further show that a legal fiction must be limited to the purpose for which it was created. (Vide: Radhakissen C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court after adverting to the relevant case law on the subject, laid down the parameters of judicial review of subordinate legislation generally thus:- "15.There is a presumption in favour of constitutionality or validity of a subordinate legislation and the burden is upon him who attacks it to show that it is invalid. It is also well recognised that a subordinate legislation can be challenged under any of the following grounds: (a) Lack of legislative competence to make the subordinate legislation. (b) Violation of fundamental rights guaranteed under the Constitution of India. (c) Violation of any provision of the Constitution of India. (d) Failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act. (e) Repugnancy to the laws of the land, that is, any enactment. (f) Manifest arbitrariness/unreasonableness (to an extent where the court might well say that the legislature never intended to give authority to make such rules). 16. The court considering the validity of a subordinate legislation, will have to consider the nature, object and scheme of the enabling Act, and also the area over which power ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proviso cannot be construed as an independent legislation and hence must be struck down. In the Rejoinder he has relied on the decision of the Privy Council in James Winter v. Attorney General of Victoria (1874-75) L.R.6 P.C. 378 and to the extracted paragraph from Dwarka Prasad v. Dwarka Das Saraf : "We may mention in fairness to Counsel that the following, among other decisions, were cited at the Bar bearing on the uses of provisos in statutes: C.I.T. v. Indo-Mercantile Bank Ltd. 1959 Supp. 2 SCR 256; Ram Narain Sons Ltd. v. Asstt. C.S.T. ; Thompson v. Dibdin 1912 AC 533; Rex v. Dibdin 1910 Pro Div 57 and Tahsildar Singh v. State of U.P. 1959 Supp 2 SCR 875. The law is trite. A proviso must be limited to the subject-matter of the enacting clause. It is a settled rule of construction that a proviso must prima facie be read and considered in relation to the principal matter to which it is a proviso. It is not a separate or independent enactment. 'Words are dependent on the principal enacting words, to which they are tacked as a proviso. They cannot be read as divorced from their context' (1912 AC 544). If the rule of construction is that prima facie a proviso should be li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the legislature in associating wider words with words of narrower significance is doubtful, or otherwise not clear that the said rule of construction can be usefully applied. It can also be applied where the meaning of the words of wider import is doubtful; but, where the object of the legislature in using wider words is clear and free of ambiguity, the rule of construction in question cannot be pressed into service. 72. In Bank of India v. Vijay Transport, (1988 Supp, SCC 47 = AIR 1988 SC 151), the Court was dealing with the contention that a literal interpretation is not always the only interpretation of a provision in a statute and the court has to look at the setting in which the words are used and the circumstances in which the law came to be passed to decide whether there is something implicit behind the words actually used which would control the literal meaning of the words used. For the said purpose, reliance was placed on R.L. Arora (2) v. State of Uttar Pradesh, ((1964) 6 SCR 784 = AIR 1964 SC 1230). Dealing with the said aspect, the Court has observed thus, (Vijay Transport Case, Bank of India Vs. Vijay Transport, (1988 Supp SCC 47 = AIR 1988 SC 151). SCC p. 51, para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rule of ejusdem generis; rather the latter rule is only an application of the former. The rule has been lucidly explained by GAJENDRAGADKAR, J. in the following words: "This rule, according to MAXWELL, Interpretation of Statutes (11th Edn., 1962) 321, means that when two or more words which are susceptible of analogous meaning are coupled together, they are understood to be used in their cognate sense. They take as it were their colour from each other, that is, the more general is restricted to a sense analogous to a less general." The learned author on further discussion has expressed the view that meaning of a word is to be judged from the company it keeps, i.e., reference to words found in immediate connection with them. It applies when two or more words are susceptible of analogous meanings are coupled together, to be read and understood in their cognate sense.(Principles of Statutory Interpretation by G.P.Singh (8th Edn.) 379. Noscitur a soccis is merely a rule of construction and cannot prevail where it is clear that wider and diverse etymology is intentionally and deliberately used in the provision. It is only when and where the intention of the legislature in asso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson is unconnected with the fundamental right conferred in public interest by Article 19(1) (a); and a fundamental right is enforceable against the State but cannot be invoked to serve a private interest of an individual. Elucidating the same, it has been propounded that defamation of a private person by another person cannot be regarded as a 'crime' under the constitutional framework and hence, what is permissible is the civil wrong and the remedy under the civil law. Section 499 IPC, which stipulates defamation of a private person by another individual, has no nexus with the fundamental right conferred under Article 19(1)(a) of the Constitution, for Article 19(2) is meant to include the public interest and not that of an individual and, therefore, the said constitutional provision cannot be the source of criminal defamation. This argument is built up on two grounds: (i) the common thread that runs through the various grounds engrafted under Article 19(2) is relatable to the protection of the interest of the State and the public in general and the word "defamation" has to be understood in the said context, and (ii) the principle of noscitur a sociis, when applied, "defamation" r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded, by way of his actions, or conduct, or silence when it is his duty to speak, from asserting a right which he would have otherwise had." 17. TRAI ACT, 1997: 17.1. A regulated regime came into being through the creation of a sector specific enactment viz., The Telecom Regulatory Authority of India Act, 1997 (Act 24 of 1997). It can be said, this Act is a creation of a judgment of the Apex Court in SECRETARY, MINISTRY OF INFORMATION & BROADCASTING, GOVT. OF INDIA AND OTHERS V. CRICKET ASOCIATION OF BENGAL AND OTHERS ((1995) 2 Supreme Court Cases 161). In this celebrated judgment, the pressing need to create a comprehensive enactment regulating the airwaves or frequencies being public properties was felt and emphasized. So also the overwhelming public interest to create a level playing field, avoid monopoly, regulate the service providers and the usage of frequencies, airwaves, content of the programmes and to sustain, promote and improve the quality. Accordingly, a direction was issued to the Government of India to formulate a comprehensive enactment after noting the inadequacies inherent in the Indian Telegraphic Act, 1885. The following are the important passages. "55....... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... country is meaningless unless the citizens are well informed on all sides of the issues, in respect of which they are called upon to express their views. One-sided information, disinformation, misinformation and non-information all equally create an uninformed citizenry which makes democracy a farce when medium of information is monopolised either by a partisan central authority or by private individuals or oligarchic organisations. This is particularly so in a country like ours where about 65 per cent of the population is illiterate and hardly 1-1/2 per cent of the population has an access to the print media which is not subject to precensorship. When, therefore, the electronic media is controlled by one central agency or few private agencies of the rich, there is a need to have a central agency, as stated earlier, representing all sections of the society. Hence to have a representative central agency to ensure the viewers' right to be informed adequately and truthfully is a part of the right of the viewers under Article 19 [1] (a). 120...........Hence every citizen has a right to use the best means available for the purpose. At present, electronic media, viz., T.V. and radi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roadcasting media is inherently different from Press or other means of communication/information. The analogy of press is misleading and inappropriate. This is also the view expressed by several Constitutional Courts including that of the United States of America. 4. The Indian Telegraph Act, 1885 is totally inadequate to govern an important medium like the radio and television, i.e., broadcasting media. The Act was intended for an altogether different purpose when it was enacted. This is the result of the law in this country not keeping pace with the technological advances in the field of information and communications. While all the leading democratic countries have enacted laws specifically governing the broadcasting media, the law in this country has stood still, rooted in the Telegraph Act of 1885. Except Section 4(1) and the definition of telegraph, no other provision of the Act is shown to have any relevance to broadcasting media. It is, therefore, imperative that the parliament makes a law placing the broadcasting media in the hands of a public/statutory corporate or the corporations, as the case may be. This is necessary to safeguard the interests of public and the inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject coming under Entry 31 of List 1 of the VII Schedule. 17.4. The word "regulate" as adumbrated in the preamble assumes greater importance in relation to the subject sought to be dealt with. A restrictive and rigid meaning shall not be given to the word "regulate". Otherwise, the very object and intendment of the Act would be at peril. BHARAT SANCHAR NIGAM LIMITED VS. TELECOM REGULATORY AUTHORITY OF INDIA AND OTHERS ((2014) 3 Supreme Court Cases 222). "81.The terms 'regulate' and 'regulation' have been interpreted in large number of judgments. We may notice few of them. In V.S. Rice & Oil Mills v. State of A.P. AIR 1964 SC 1781, agreements for a period of ten years had been executed for supply of electricity and the same did not contain any provision authorising the Government to increase the rates during their operation. However, in exercise of power under Section 3(1) of the Madras Essential Articles Control and Requisitioning (Temporary Powers) Act, 1949, the State Government issued order enhancing the agreed rates. The same was challenged on the ground that any increase in agreed tariff was out of the purview of Section 3(1). Chief Justice Gajendragadkar, speaking for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed therein - that the problem whether an enactment was regulatory or something more or whether a restriction was direct or only remote or only incidental involved, not so much legal as political, social or economic consideration and that it could not be laid down that in no circumstances could the exclusion of competition so as to create a monopoly, either in a State or Commonwealth agency, be justified. Each case, it was said, must be judged on its own facts and in its own setting of time and circumstances and it might be that in regard to some economic activities and at some stage of social development, prohibition with a view to State monopoly was the only practical and reasonable manner of regulation. The statute with which we are concerned, the Mines and Minerals (Regulation and Development) Act, is aimed, as we have already said more than once, at the conservation and the prudent and discriminating exploitation of minerals. Surely, in the case of a scarce mineral, to permit exploitation by the State or its agency and to prohibit exploitation by private agencies is the most effective method of conservation and prudent exploitation. If you want to conserve for the future, you m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... check and may imply the power to prohibit under certain circumstances, as where the best or only efficacious regulation consists of suppression. It would therefore appear that the word "regulation" cannot have any inflexible meaning as to exclude "prohibition". It has different shades of meaning and must take its colour from the context in which it is used having regard to the purpose and object of the legislation, and the Court must necessarily keep in view the mischief which the legislature seeks to remedy. The question essentially is one of degree and it is impossible to fix any definite point at which "regulation" ends and "prohibition" begins. We may illustrate how different minds have differently reacted as to the meaning of the word "regulate" depending on the context in which it is used and the purpose and object of the legislation. In Slattery v. Nalyor LR (1888) 13 AC 446 the question arose before the Judicial Committee of the Privy Council whether a Bye-law by reason of its prohibiting internment altogether in a particular cemetery, was ultra vires because the Municipal Council had only power of regulating internments whereas the Bye-law totally prohibited them in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal factors including States' contribution in developing, manning and controlling such activities, including parting with its wealth, viz., the minerals, the fixation of the rate of royalties would also be included within its meaning." 87. Reference in this connection can also be made to the judgment in U.P. Coop. Cane Unions Federation v. West U.P. Sugar Mills Association (2004) 5 SCC 430. In that case, the Court interpreted the word 'regulation' appearing in U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953 and observed: " Regulate" means to control or to adjust by rule or to subject to governing principles. It is a word of broad impact having wide meaning comprehending all facets not only specifically enumerated in the Act, but also embraces within its fold the powers incidental to the regulation envisaged in good faith and its meaning has to be ascertained in the context in which it has been used and the purpose of the statute." 88. It is thus evident that the term 'regulate' is elastic enough to include the power to issue directions or to make regulations and the mere fact that the expression "as may be provided in the regulations" appearing in clauses (vii) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne with the objects meant to be achieved. We are particularly concerned with Section 11, which would be dealt with at a later point of time. Suffice it is to state that the Act is meant to regulate a large number of activities. It is also to be noted that no such regulation like the impugned one and the tariff order can ever be made under any other enactment including The Copyright Act, 1957. 17.7. Section 2 of the Telecom Regulatory Authority of India Act, 1997 deals with definitions. It opens with the words "unless context otherwise requires". Therefore, the words mentioned therein are to be given their natural meaning in tune with the object enshrined. Section 2(e) of the Act defines the "licensee". "Licensee" is one who is licensed under sub section (1) of section 4 of the Indian Telegraph Act, 1885. To be noted, without such a licence, a broadcaster cannot undertake the function of uplinking and downlinking. The licensee also becomes a "service provider" under sub clause (j) of section 2 of the Act. There is no difficulty in holding that a broadcaster is a service provider. Section 2(j) merely says a "service provider" includes the licensee. Thus, a person can be a service pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no difficulty in holding that a broadcaster is the "service provider" under the purview of the Act. 17.9. Much has been said on the definition contained in Section 2(1)(k) of the Act, which defines a "telecommunication service". "(k) "telecommunication service" means service of any description (including electronic mail, voice mail, data services, audio tax services, video tax services, radio paging and cellular mobile telephone services) which is made available to users by means of any transmission or reception of signs, signals, writing images and sounds or intelligence of any nature, by wire, radio, visual or other electromagnetic means but shall not include broadcasting services". 17.10. We must bear in mind that we are dealing with the definition section. Thus, it is not a substantive provision. It includes service of any description and therefore, services mentioned thereunder are merely illustrative in nature. What is important herein is the service being made available to "the end user". This provision does not define either telecommunication or broadcasting. Either we can go for external aid or the impugned regulation, which defined them accordingly. So are the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4). It is well settled that when substantive powers are given through the provisions, to give effect to the object of the Act, the words are to be treated as illustrative and not exhaustive. Thus, once the power to regulate the activities of various stake holders is recognised keeping in view of the predominant public interest, the thing would automatically fall in place. Section 11(b) speaks about compliance of the terms and conditions of the licence. This also would take in its ambit, licence issued under Section 4 of the Indian Telegraph Act, 1885. This provision also deals with laying down standard of quality of service. The underlying interest is that of the consumer. Therefore, Section 11(b) has to be read as a whole. If that is done, then, there is no difficulty in bringing the availability and existence of the power in favour of TRAI to regulate. The words "quality of service" and "public interest" are to be given an extensive and expansive meaning. Similarly, sub clause "d" of Section 11 provides sufficient power to perform such other functions as may be necessary to carry out the provisions of the Act. Therefore, this provision, viz., Section 11(d) is directly relatable t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11(1) of the Act. 17.17. The proviso makes it clear that such directions are to be restricted to the matters specified in Section 11(1)(b) of the Act. One can say this is because Section 11(1)(a) is merely recommendatory in nature. 17.18. Now let us come to the provisions dealing with regulations. Section 36 is the source provider to make regulation consistent with the Act and the Rules. Making a regulation is a legislative Act to be done through the parliament. Under Section 36(2), such regulation may provide for the matters specified therein. This power has to be exercised in particular and without prejudice to the general power conferred under Section 36(1) of the Act. Thus, under Section 36(1), the TRAI Act makes regulations to carry out the objects of the enactment enshrined under Sections 11, 12 and 13. Such a power is rather wide and primacy. This power as conferred is merely illustrative as stated above. 17.19. Except complying with the Act and Rules, there is no other restriction to TRAI Act to make a regulation under Section 36 of the Act. Section 36(2) specifies various topics for enacting the regulations. They can also be referable to Sections 11(1)(b) and 11(1)(c). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice provider but has to also ensure compliance of the same and may recommend revocation of licence in the event of non- compliance with the regulations. It has to perform very objectively one of its main functions, i.e., to facilitate competition and promote efficiency in the operation of the telecommunication services, so as to facilitate growth in such services. It is expected of this regulatory authority to monitor the quality of service and even conduct periodical survey to ensure proper implementation." 17.23. STAR INDIA PRIVATE LIMITED VS. TELECOM REGULATORY AUTHORITY OF INDIA AND OTHERS ((2008) 146 DLT 455 (DB)) "35.We shall now shift focus to Section 11 of the TRAI Act which has been substantially altered by the Amending Act of 2000 inasmuch as its first sub-section has been completely substituted by the extant one. However, the provision with which we are presently concerned, viz. Subsection (2), has not been touched. It empowers TRAI to determine and prescribe "the rates at which the telecommunication services within and outside India shall be provided." Its Proviso bestows discretion on TRAI "to notify different rates for different persons or class of persons for si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Regulators, as the case may be. Where redressal machinery is provided for such delegation should be impervious to objection. Inasmuch as the TRAI Act provides for the establishment of the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) with jurisdiction inter alia to hear and dispose of appeals against any direction, decision or order of the Authority, this important safeguard against any possible abuse or arbitrary exercise of power is duly in place. A second Appeal to the Hon'ble Supreme Court of India is also provided for. 49. Furthermore, the TRAI is clearly competent to prescribe the conditions and tariff impugned before us by virtue of the TRAI Act itself. We have already upheld the legality of Section 2(1)(k), the consequence of which is that broadcasting is undeniably and unassailably covered by that statute. TRAI accordingly is expected to make recommendation inter alia in respect of "measures to facilitate competition and promote efficiency in the operation of telecommunication services so as to facilitate growth in services (see Section 11(1)(a)(iv))". TRAI must regulate arrangements amongst service providers of sharing their revenue derived from prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us that the regulations framed under Section 36 are ultra vires the provisions of the TRAI Act." 17.25. HOTEL AND RESTAURANT ASSOCIATION AND ANOTHER VS. STAR INDIA (P) LIMITED AND OTHERS ((2006) 13 Supreme Court Cases 753). 17.26. The Apex Court has considered with clarity on the extent of the power available to TRAI and the role required to be played. These are the necessary paragraphs: "24. Section 11 of TRAI Act provides for the functions of TRAI. Clause (a) of Sub-section (1) of Section 11 of TRAI Act empowers TRAI to make recommendations either suo motu or on the request from the licensor, on the matters enumerated therein. Clause (b) thereof empowers it inter alia to fix the terms and conditions of inter-connectivity between the service providers. 25.Sub-section (2) of Section 11 of TRAI Act contains a nonobstante clause providing that TRAI may frame from time to time by order (s) notified in the official gazette the rates at which the telecommunication services within India and outside India shall be provided under the said Act including the rates at which messages shall be transmitted to any country outside India. Proviso appended to Sub-section (2) thereof empower ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PUGNED REGULATIONS: 18.1. Chapter 1 deals with the definition clause. This chapter speaks of al-a-carte channel. On the similar lines, it speaks about the bouquet of channels. For the first time, the word "broadcaster" has been defined along with a "Local Cable Operator" and "Multi System Operator". Incidentally, it defines "a programme". "A service provider", "set top box", "subscriber" and "a television channel" have been defined. The following are the definition clauses. "(h) "broadcaster" means a person or a group of persons, or body corporate, or any organization or body who, after having obtained, in its name, downlinking permission for its channels, from the Central Government, is providing programming services; (i) "broadcaster's share of maximum retail price" with reference to a pay channel or a bouquet of pay channels means any fee payable by a distributor of television channels to a broadcaster for signals of pay channel or bouquet of pay channels, as the case may be, and for which due authorization has been obtained by such distributor from that broadcaster; (j) "broadcasting services" means the dissemination of any form of communication like signs, signals, writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ox, which is to be provided by a service provider, no subscriber can either actually or likely to view. This definition also makes it clear that what is sufficient is the availability of a channel to be seen. "Subscriber" has been defined as the one, who receives the broadcasting services without further transmission. "A television channel" has been defined as the one, which has been granted permission for downlinking. Thus, to attract the definition clause, a permission is mandatory. 18.3. The regulations also define the programme, which means exhibition of films, features, drama etc. Programme means any television broadcast and includes: - (i) exhibition of films, features, dramas, advertisements and serials; (ii) any audio or visual or audio visual live performance or presentation and the expression "programming service" shall be construed accordingly. 18.4. The aforesaid definition of word "programme" and "programme service" will have to be understood as being a member of broadcasting service family. A broadcasting services is a wide term inclusive of different forms of broadcasting vis a vis radio broadcasting television broadcasting, web broadcasting etc. Now in the impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch popular channels at RIO rates. To make the matters worse, the distributors of television channels have to pay as if all the channels in the bouquet are being watched by the entire subscriber base, when in fact only the popular channels will have high viewership. In such a scenario, at the retail end, the distributors of television channels somehow push these channels to maximum number of subscribers so as to recover costs. This marketing strategy based on bouquets essentially results in 'perverse pricing' of bouquets vis-à-vis the individual channels. As a result, the customers are forced to subscribe to bouquets rather than subscribing to a-la-carte channels of their choice. Thus, in the process, the public, in general, end up paying for "unwanted" channels and this, in effect, restricts subscriber choice. Bundling of large number of unwanted channels in bouquets also result in artificial occupation of distributors' network capacity. This acts as an entry barrier for newer TV channels. 65. In order to facilitate subscribers to exercise their options in line with intention of lawmakers to choose individual channels, in the new framework the broadcasters will declare t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to monetise, but within the framework. A broadcaster may price even non-driver channels at a much higher value that they can command. Non-discovery of reasonable price of a channel in a market is one of the constraints that can be manipulated and misused to price a channel in a-la-carte from which is illusionary. Such high a-la-carte prices permits broadcasters/distributors to provide high discounts to push non-drivers channels in form of bouquets to the subscribers while reducing the probability of choosing the a-la-carte channels of choice as required by the lawmakers in the Parliament. The possibility to forcing bouquets over a-la-carte choice by using higher discounts can be further understood by following example, where a 41 broadcaster has a total of 35 pay channels out of which only 5 are driver channels : 67. In the present regulatory framework incidences have come to the knowledge where discount upto 90% on the declared RIO prices has been given by broadcasters. Obviously such efforts kill competition and reduce a-la-carte choice which is anti-subscriber. Accordingly, the Authority has prescribed a discount of 15% to be provided by 42 broadcasters at wholesale level and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssable systems between broadcaster & DPOs at wholesale level and further enhancing it 1.25 times to account for DPOs distribution fee. Broadcasters also have complete freedom to price their pay 43 channels which do not form part of any bouquet and offered only on a-la-carte basis. Similar conditions will also be applicable to DPOs for formation of the bouquets. However, the Authority will keep a watch on the developments in the market and may review the manner in which a channel can be provided as part of a bouquet, in a time period of about two years." 19. THE COPYRIGHT ACT, 1957: 19.1. Before going into the provisions we are concerned with, it is made abundantly clear that the discussion is relatable only the issue involved i.e., whether the impugned regulations and Tariff order militate and violate the Copyright Act. 19.2. Indian Copyright Act, 1914, was a poor cousin of Copyright Act, 1911 of the United Kingdom for obvious reasons. After independence, on the need to expand the scope and to increase powers and functions, the Copyright Act, 1957 was introduced. The field of legislation for the enactment is entry 49 of list 1 of VII Schedule. Accordingly, certain rights akin to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the work, which is made available. Hence, two factors are important. One is the availability of the work and the other is the enjoyment by any member of the public. The question as to whether it is seen, heard or not becomes irrelevant. Therefore, a deeming fiction is created. A fact has been created, which is otherwise non existent. Hence, much emphasis will have to be given for the availability and thus, actual seeing or hearing becomes a non issue. 19.7. When such a work is "communicated to the public" as defined under Section 2 (ff) through the "means" mentioned in 2 (dd), it becomes a broadcasting. Therefore, a broadcast would actually happen only when it is communicated to the public. When such an activity is done by an organisation, it becomes a broadcaster. Accordingly, a cycle has to be completed from the point of view of the broadcaster to the end user viz.,the subscriber. 19.8. The word "infringing copy" has been defined under Section 2-m to mean, "(m) "infringing copy" means- (iv) in relation to a programme or performance in which such a broadcast reproduction right or a performer's right subsists under the provisions of this Act, the sound recording or a cinema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich held that film producer is the first owner of the copyright and authors and music composers to not have separate rights". Accordingly, in view of the amendment made, the authors are given right to own their music and lyrics even if they are created to make a film. 20.5. Towards strengthening the rights of the authors, it is sought to provide the right to royalty sharing. This has been made as an absolute and inalienable one. The amendment also provides, withholding of such a right even after the licence granted in favour of a third party. Incidentally, the amendment gave substantial rights to the authors over the copyright societies. 20.6. These amendments also went into the issue of transparency qua the copyright society. Accordingly, a copyright society is mandated to publish tariff scheme as against the earlier mere submission to the Registrar of Copyright. Further more, the right to challenge the Tariff Scheme of a copyright society has been given to any person aggrieved. The Copyright Board is also sufficiently empowered to discharge its functions. Thus it could be seen that the object of the 2012 amendment is to enhance and protect the rights of the copyright holder in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not contemplate the process of transmission between a broadcaster and a distributor prior to a broadcast, as defined under the Act. 20.10. Much has been said about the 'broadcast reproduction right'. Rights of broadcasting organisation have been brought under Chapter VIII. The Copyright Act only deals with the rights and duties of individuals such as copyright holder and the licensee with a limited right to a third party. Therefore, it does not deal with a larger public interest, especially when the airwaves and frequencies are owned by the Government which is duty bound to protect the overwhelming public interest of the subscriber. This provision also does not deal with a "broadcast right" as such but only a "broadcast reproduction right". Before discussing further let us see the provision as such. "37. Broadcast reproduction right.- (1) Every broadcasting organisation shall have a special right to be known as "broadcast reproduction right" in respect of its broadcasts. (2) The broadcast reproduction right shall subsist until twentyfive years from the beginning of the calendar year next following the year in which the broadcast is made. (3)During the continuance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ganisation, which can be restricted to a broadcast made. Hence, it is programme, work and thus broadcast centric. 20.14. To understand the position better, let us see Section 37 as it stood before at the time of Act 14 of 1957. "37. Broadcast reproduction right-- (1) Where any programme is broadcast [****] by the Government or any other broadcasting authority, a special right to be known as "broadcast reproduction right" shall subsist in such programme." 20.15. This section starts with the words "where any programme is broadcast". By the amendment, which stands as of now, the word "programme" has been taken out as against "broadcast". This is to give a wider coverage. Similarly, the words "by radio, television" were omitted in view of the subsequent technological development. The present amendment is also necessitated by the entry of private actors. 20.16. Section 37 is an unique piece of legislation and thus one of its kind. While it speaks about the right of a broadcasting organisation, it also controls the extent of it. Thus, Section 37 is a core provision, which exclusively deals with a broadcasting reproduction right. 20.17. Section 37 certainly comes into play only afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les. It acts and performs on behalf of the owner who in most of the cases is under a disadvantageous position. A window has been provided to a person aggrieved over the fixation of tariff. 20.20. Thus, on a conspectus of the above, there is no difficulty in holding that Copyright Act, 1957, and the TRAI Act, 1997, do stand apart in the respective arena. Their fields are distinct and separate. Under the Copyright Act, no third party is involved. There is no element of regulation. The TRAI Act is a sector specific Act. As airwaves is a public property, there is no overwhelming public interest under the Copyright Act unlike TRAI Act. 20.21. M/S JAK COMMUNICATIONS PVT. LTD., VS. M/S SUN TV NETWORK LIMITED AND ANOTHER ((2010) 2 Law Weekly 936). "31. It is also argued that in view of the TRAI Act, the provisions of the Copyright Act cannot be enforced. In the wake of the judgment of the Supreme Court, we cannot read both the Acts in that manner and come to a conclusion that the subsequent TRAI Act would take away the power of civil Court to entertain a suit filed for infringement of copyright. Both the Copyright Act as well as the TRAI Act operate in the respective field. Whereas the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given to agreement based on mutual negotiations following the scheme of the Copyright Act 1957. Section 39(A) of the Copyright Act does not make section 31 applicable to "broadcast reproduction rights" and it is thus true that under the scheme of the Copyright Act, "broadcast reproduction rights" do not come under compulsory licensing. However, exclusion from compulsory licensing under the Copyright Act by no means suggests that provisions requiring "must provide" of the broadcasting content on "non-exclusive and non-discriminatory" terms may not be mandated in a different set of statutes, aimed at regulating the broadcasting service. It needs to be borne in mind that under the Copyright Act there is an omission and not a prohibition or bar against compulsory licencing for "broadcasting content rights". Petition No.151(C) of 2010 disposed of by judgment and order dated 4 February 2011. Thus, contrary to the submissions made by Mrs. Singh, the matter of compulsory licencing of "broadcasting content rights" is left open to be dealt with in a different context, by a different set of laws, regulating another area of societal demands. In case of broadcasting service the Regulator fel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " accordingly referred the following question to the Federal Court of Appeal: "Is the Commission empowered, pursuant to its mandate under the Broadcasting Act, to establish a regime to enable private local television stations to choose to negotiate with broadcasting distribution undertakings a fair value in exchange for the distribution of the programming services broadcast by those local television stations?" 20.27. The contentions raised by the distributor companies were accordingly rejected on both the legal issues. A further challenge was made to the Supreme Court of Canada. By a slender majority of 5:4, appeal was allowed. 20.28. Before proceeding further, let us place on record the relevant provisions. Section 3(1) deals with the policy objectives. Section 3(1) of the Broadcasting Act declares the broadcasting policy for Canada. "3. (1) It is hereby declared as the broadcasting policy for Canada that (e) each element of the Canadian broadcasting system shall contribute in an appropriate manner to the creation and presentation of Canadian programming; (f) each broadcasting undertaking shall make maximum use, and in no case less than predominant use, of Canadian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ier for the distribution of programming directly to the public using the facilities of that common carrier; (g)require any licensee who is authorized to carry on a distribution undertaking to give priority to the carriage of broadcasting; and (h)require any licensee who is authorized to carry on a distribution undertaking to carry, on such terms and conditions as the Commission deems appropriate, programming services specified by the Commission. 10.(1)The Commission may, in furtherance of its objects, make regulations (a)respecting the proportion of time that shall be devoted to the broadcasting of Canadian programs; (b)prescribing what constitutes a Canadian program for the purposes of this Act; (c)respecting standards of programs and the allocation of broadcasting time for the purpose of giving effect to the broadcasting policy set out in subsection 3(1); (d)respecting the character of advertising and the amount of broadcasting time that may be devoted to advertising; (e)respecting the proportion of time that may be devoted to the broadcasting of programs, including advertisements or announcements, of a partisan political character and the assignment of that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and (d)in the case of a television communication signal, to perform it in a place open to the public on payment of an entrance fee, and to authorize any act described in paragraph (a), (b) or (d). 31(1) In this section, "new media retransmitter" means a person whose retransmission is lawful under the Broadcasting Act only by reason of the Exemption Order for New Media Broadcasting Undertakings issued by the Canadian Radiotelevision and Telecommunications Commission as Appendix A to Public Notice CRTC 1997-197, as amended from time to time; "retransmitter" means a person who performs a function comparable to that of a cable retransmission system, but does not include a new media retransmitter. "signal" means a signal that carries a literary,dramatic, musical or artistic work and is transmitted for free reception by the public by a terrestrial radio or terrestrial television station. (2)It is not an infringement of copyright for a retransmitter to communicate to the public by telecommunication any literary, dramatic, musical or artistic work if (a) the communication is a retransmission of a local or distant signal; (b) the retransmission is lawful under the Broadcast ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. It is to be noted that such a regulation passed providing road map for the inter se relationship between the broadcaster and the distributor has already been upheld by the Court in our case. There is no BRR involved in the copyright in Canada. The Court also gave a finding that the activity sought to be introduced is governed and controlled by the Copyright Act, a situation totally non-existent before us. The dispute before the Canadian Court was between the broadcasters and the distributors. Therefore, the interest of the subscriber was never a point for consideration. There is no repository of source under our Copyright Act. It is only available with the TRAI Act. Hence, in the considered view of this Court, the aforesaid decision is to be seen in its own context. 21. INDIAN TELEGRAPH ACT, 1885. 21.1. This enactment is of vintage - origin having crossed a century and a quarter. The deficiency in this enactment has in fact broughtforth the TRAI Act, 1997. As held by the Courts, the provisions of this Act will have to be read in consonance with the TRAI Act, which is also indicated in Section 2(2) and 38. Part II deals with the privileges and powers of the Government. As per S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Government of India has any right to establish, maintain and work telephones. It is the exclusive privilege of the Government of India, which could be permitted to be exercised by others by a grant from the Government of India. 43. In other words, such licences are in the nature of largesse from the State. No doubt, the authority of the State to distribute such largess is always subject to the condition that the State must comply with the conditions of Article 14 of the Constitution i.e. the distribution must be on the basis of some rational policy. Even the language of the proviso to Section 4 of the Telegraph Act, which stipulates that the grant of license should be "on such conditions and in consideration of such payments as it thinks fit", must necessarily be understood that the conditions must be rational and the payments forming the consideration for the grant of license must be non-discriminatory. The conditions contained in the licenses in question stipulate that the term of the license could be extended on mutually agreed terms, if the Government of India deems it expedient. The obligations of the Government of India flowing from the Constitution as well as a statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 'pay' channels to be charged by the multi-system operators or local cable operators from the subscribers in each of the notified areas. (2) Every broadcaster shall file his declaration of the nature and prices of channels under sub-rule (1) before the Authority and the Central Government within fifteen days of the date of notification by the Central Government under section 4 A of the Act. (3) If in the opinion of the Authority, the price declared by the broadcaster in respect of any of its pay channels is too high, the Authority may, under section 11 of the Telecom Regulatory Authority of India Act, 1997 (24 of 1997), fix and declare the maximum retail price of such a pay channel or fix a general maximum retail price for all pay channels within which the broadcasters may declare their individual prices for each pay channel, to be paid by the subscribers in any of the notified areas, and such an order of the Authority shall be binding on the broadcasters and the multi-system operators and local cable operators." This present rule after substitution. " 10. Obligations of broadcaster, multi-system operator and cable operator:- Every Broadcaster, Multi-System Operator and cable o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... local cable operators from the subscribers in areas notified by the Central Government under section 4A. The tariff dispensation provided in the present order for addressable systems, on the other hand, mandates that a broadcaster shall specify its "wholesale" rates for addressable platforms. In case, the tariff dispensation in the present tariff order is immediately extended to cable services in such CAS notified areas, it may result in a situation where a broadcaster would be required to define retail price as well as wholesale price of its 33 channels in respect of such notified areas. In order to prevent this anomaly, a separate recommendation is being made to the Government for amending Rule 10 of the Cable Television Networks Rules. Till the required amendment is carried out by the Government, the existing tariff dispensation for cable services in areas notified by the Central Government under section 4A of the Cable Act, i.e., under the Telecommunication (Broadcasting and Cable) Services (Third) (CAS Areas) Tariff Order, 2006 (6 of 2006) and the revenue sharing arrangements under the Telecommunication (Broadcasting and Cable Services) Interconnection Regulation, 2004" (13 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Therefore, de hors the CTN Act and the CTN Rules TRAI is otherwise competent to fix tariffs, as also to prescribe the Standard Interconnection Agreements." 22.5. It was further held by relying upon the earlier Tribunals order that both the TRAI Act and Cable TV Net Works(Regulation) Act, 1995, do have the power to regulate the broadcasting service. A fruitful extraction of the following relevant paragraph is hereunder. "The Tribunal, referring to Section 11(2) of the TRAI Act negated the submissions and held that the legislative intent was clear and it recognized the need to regulate the broadcasting service. The Tribunal then dealt with the broadcasters' challenge to the SIA, which, unlike RIO that is framed by the broadcaster itself, was statutorily prescribed and was thus clearly far more stringent than the provisions under consideration in this case. The SIA was challenged on the ground that it infringed the broadcasters' freedom of contract. Rejecting the submission the Tribunal held: "Introduction of a standard format of the interconnect agreement as prescribed by the Authority has been seriously challenged. It was argued that this it (sic) curtails freedom of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted." 22.6. Submissions have been made by placing reliance upon other enactments by the learned Senior Counsel appearing for the fourth respondent, such as, Sports, Broadcasting Signals (Mandatory) sharing with Prasar Bharati Act, 2007. This Court is not willing to borrow the provisions contained therein. Though an objection has been raised by the learned Senior Counsels appearing for the petitioners that the said Act does deal with the content, suffice it is to state that the entry is one and the same. Therefore, the contentions that entry 31 of list 1 of VII Schedule does not deal with content has no basis. However, we need not proceed further since the impugned regulation itself reiterates the very same definition provisions ipso facto. Thus, on a detailed analysis of the provisions contained in the enactments other than the TRAI Act, 1997, one cannot hold that there exists any conflict, overlapping either incidental or direct and the field being occupied as against the TRAI Act, which has got a specific role to play. These enactments can at best be stated to sail along with the TRAI Act. 23. SUBMISSIONS OF THE PETITIONERS: 23.1. The learned Senior Counsels while seeking to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C., (1989) Supreme Court Cases Online Bom 29); (ii) SUPER CASSETTES INDUSTRIES PVT. LTD., V. SBN NETWORK (2016 SCC Online Del 5926); and (iii) JAK COMMUNICATIONS PVT. LTD., VS. SUN TV NETWORK LTD, AND OTHERS ((2010) 2 Law Weekly 936)" 23.5. Insofar as the deferring judgment is concerned, it is submitted that the scope and ambit of the enactments have been wrongly understood. The finding rendered on the amendment made in the year 2012 amending Section 39-A cannot be sustained. It is wrong to construe that the Copyright Act deals with a copyright owner vis a vis a licensee viz., broadcasting right holder. The amendments do control a dispute between a broadcaster and the distributor. If a finding could be given on the cap fixed for the MRP of the bouquet along with restrictions on the discount of channels, the same logic ought to have been extended to the other clauses contained in the Regulations and the Tariff Order. 24. SUBMISSIONS OF THE RESPONDENTS: 24.1. The learned Senior counsels appearing for the respondents submitted that there is sufficient power available under the TRAI Act to pass the impugned proceedings. The impugned proceedings cannot be termed as regulating the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lenge to the jurisdiction of the TRAI to come up with said regulations and said tariff order. 4(c)Such a challenge to the jurisdiction of TRAI is predicated on one core issue and that one core issue is that the jurisdiction of TRAI to regulate and fix tariff is limited to carriage or 'means of transmission' and therefore it cannot be extended to 'content' which according to the writ petitioners is completely and comprehensively governed by the Copyright Act, 1957 (14 of 1957) as amended with effect from 21.6.2012, which is hereinafter referred to as 'Copyright Act' for convenience and clarity. 6(g) .............The third reason is all parties to the lis agreed to the aforesaid 18 clauses being treated as impugned clauses and all parties agreed that the scope of the writ petitions shall be to test the constitutional validity and vires qua TRAI Act of the aforesaid 18 clauses contained in two tables. 6(h) To be noted, Dr.Abhishek Singhvi, learned Senior counsel leading the counsel on record for the other writ petitioner also submitted that the aforesaid 18 clauses in said regulations and said tariff order and challenge to their constitutional validity an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as the petitioner suggested. There is no ambiguity on the definition provision. 25.4. The power conferred on the authority under Sections 11 to 13 has already been considered on quite a few occasions by the Courts. Nothing more is required to be added in the light of the discussions made already. If the contentions of the petitioners are accepted, the very provision contained under Section 11(2) would become redundant and otiose, notwithstanding a challenge in futility made before the Delhi High Court on the constitution validity of Section 11(2) is much to the knowledge of the petitioners. 25.5. Notably, tariff orders of similar nature were being introduced from time to time from the year 2004 onwards. Power to make regulation has been provided under Section 36. The Courts have interpreted with such a power as pervasive notwithstanding the other provisions. To be noted, the notification No.39 has also not been challenged by the petitioners while challenging the proviso to Section 2(1)(k). This notification has also added additional power to the fourth respondent. To sum up, the TRAI Act being a centripetal, sector specific one, involving the utilisation of the public property, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el under Section 37 of the Copyright Act. Merely because, the television channel becomes a broadcaster, no independent right can be placed as against the "broadcasting" which may involve any work or a programme coming under the Act's purview. In this connection, the definition of TV Channel as adumbrated in the impugned regulations will have to be seen. While the copyright does not make any reference to a TV Channel, it has been referred accordingly as such, only after obtaining permission for downlinking under the impugned regulations. Therefore, the TV channel has been understood in a very restrictive manner under the impugned regulations. Needless to state that the Cable Television Networks (Regulation) Act, 1995, also deals with the television channel as against the Copyright Act. 25.11. This Court is of the considered view that having drawn the lines and fixed the goal post with the agreement of the parties, the issue as to whether the impugned Regulations and the Tariff Order deal with a content or a carriage as understood by the petitioners is irrelevant. That the petitioners are affected by the impugned Regulations and Tariff Order is not in doubt. Therefore, the quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of the hearing however, they feigned ignorance) * Transparency in Discounts *Wholesale cap tobe fixed on discounts at a maximum overall cap of 33% * Conditions to regulate bouquets *Maximum discount on multi-broadcaster retail bouquet to be capped at 33% 25.14. They have also requested the bundling of HD and SD channels not to be allowed. This could be seen from the following statement made by them before TRAI as recorded under the consideration paper dated 29.02.2016. " 3.Bundling of HD and SD channels should not be allowed,both at wholesale and retail leves; 4. Charging of access fee for HD channels should not be allowed at retail level; 5.DPOs free to sell HD channels as a-la-care as well as bouquet(s) of HD channels; 6.Consumers and DPOs should have a choice to subscribe to only HD Channels or only SD channels or both combined but purchased separately." 25.15. Thus a party, who approbates and reprobates should not be shown any indulgence by the Court. Certainly, the law governing "issue estoppel" would also come into play. It also applies to the declaration made by the Court on the basis of the stand taken by the petitioners that it is a service provider un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the single person which is evident from the Act. Section 51 of the Copyright Act deals with acts constituting infringement of a copyright and Section 37(3) separately deals with acts constituting infringement of broadcast reproduction rights. Emphasis have been placed upon Section 39-A which provides that Sections 18, 19, 30, 53, 55, 58, 64, 65 and 66 shall with any necessary adaptations and modifications apply in relation to the Broadcast reproduction right in any broadcast. This clearly showed the legislative intent as to which provision of the Act would apply to both copyright and also broadcast reproduction right and by necessary implication Sections not so specifically provided would not ipso facto apply to the broadcast reproduction right. Sections 13 and 14 of the Copyright Act make it clear that copyright will subsist only in 'work' and that does not include 'broadcast'. This clearly demonstrates that the broadcast rights particularly in respect of telecast of live events are separate and distinct from copyright available in Chapter XII of the Act. The definition of 'broadcast' under Section 2(dd) and the definition of 'communication to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rriage alone. No third party has come forward to raise his grievance. Statutes are governed by different entries and therefore, the source of powers are limited resulting in lack of jurisdiction under the TRAI Act. The amendment made to Rule 10 of the Cable Television Networks (Regulation) Act, 1995, has to be seen along with the amendment brought forth in the year 2012 to the Copyright Act, 1957. The impugned Regulations and Tariff Order do deal with the content. 26.2. It is to be noted that as discussed repeatedly, there is no need to go into the issue as to whether the impugned Regulations and the Tariff Order touch upon the content or carriage as contended by the petitioners. After all, it is the perspective of the parties. The learned Judge has specifically recorded the factum of scope of lis "by consent". The question as to whether the offering of the channels of a bouquet is market driven is totally irrelevant. We are not on the reason, logic and rationale behind the impugned regulations. It is the specific case of the TRAI that it is not market driven but the very market is driven by the broadcasters by making such offers, leaving no room for any choice to the end user-sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers would involve content have been in force unchallenged or failed in challenge from the year 2004 onwards was also not taken note of. The effect of the decision would in a way obliterate the very power of the TRAI to regulate. Thus, with due respect to my learned brother, I am unable to agree with the decision made, though it is a sheer pleasure to read. 26.6. A contention has been made by the learned Senior counsel appearing for the fourth respondent that even the impugned tariff orders have been noted as a regulation. This Court is of the view that though the said submission appears to be true, it may not have any impact on the ultimate decision, which is one of availability of the power under the TRAI Act, 1997 as against the Indian Copyright Act, 1957. 27. DISSENTING VIEW: 27.1.In her short, yet clear decision, the Hon'ble Chief Justice has held that there is sufficiency of the power under the TRAI Act as against the Indian Copyright Act, 1957. They travel in their respective paths, not intended to cross. The scope of the amendments made in the year 2012 along with Section 37 was correctly dealt with. This Court is of the view that the Copyright Act has rightly taken n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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