TMI Blog2018 (5) TMI 1762X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to take adequate measures as mandated by the statute. The Cable Television Networks (Regulation) Act, 1995 and the Indian Telegraph Act, 1885 go with the TRAI Act strengthening the hands of the authority. TRAI Act came into being on the need enough to have a better enactment than the Telegraph Act, 1885, supported and safeguarded by the Cable Television Networks (Regulation) Act, 1995. This Act deals with cable television network. That is the reason why, the authority is the same along with the definition of digital addressable system and introduction transmission of programmes through digital addressable system etc. Therefore, this enactment deals with the last part of the broadcast. Section 2(k) of the TRAI Act merely explains a telecommunication service. Therefore, even assuming it can be divided into three parts as suggested by the learned counsel for the petitioners, the conclusion does not change. The TRAI Act does not deal with a mere means of transmission alone. Perhaps the petitioners do understand it rather well. That is the reason why they laid the challenge before the Division Bench of Delhi High Court to the very provision. The principle governing the noscitur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e field have not been taken note of. Petition disposed off. - W.P.Nos.44126 & 44127 of 2016 and W.M.P.Nos.37951 to 37956 of 2016, 5641, 6050 to 6052, 6054 to 6056 and 11131 of 2017, W.P.No.44126 to 2016 - - - Dated:- 23-5-2018 - THE HONOURABLE Mr. JUSTICE M.M.SUNDRESH For the petitioner : Mr.Mr.P.Chidambaram, Sr.C., Mr.Satish parasaran, Sr.C., Mr.P.H.Arvindh Pandian, Sr.C., Mr.Saikrishna Rajagopal, Ms.Ruby singh Ahuja, Mr.Rahul Balaji, Mr.Sidharth Chopra, Ms.Sneha Jain, Ms.Aakanksha Munjhal, Ms.Gitanjali Mathew, Ms.Monisha Suri, Ms.Surasika Parthasarathy, Mr.Utsav Trivedi, Dr. Abhishek Singhvi, Sr.C, Mr.P.S.Raman Sr.C.,Mr.Gopal Jain, Sr.C., Mr.Saikrishna Rajagopal, Ms.Ruby singh Ahuja, Mr.Rahul Balaji, Mr.Sidharth Chopra, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of the respective views. Such a role would encompass both fact and law. For concurring with a view of one as against another, the Reference Court can give its own reasons by supplementing it. On the same score, if the ultimate decision is one and the same, but reasons being different, the Reference Court cannot go beyond it. The power available cannot be equated with that of a review nor an exercise resulting in sitting in judgment over the other. 4.3. After completion of the main round of arguments, the learned Senior Counsels appearing for the petitioners took an unexpected stand against the grain on the restrictive scope of reference inter alia contending that both the learned Judges concurred with each other on the jurisdiction of the Telecom Regulatory 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to supra are concerned. Further more, Clause 36 of the Letters Patent clearly prohibits such an exercise. If for the argument sake, the decision of the learned Chief Justice is taken as that of a single Judge, going into the same on merits by this Court would lead to exercising the power of review, which is also not available. Accordingly, the feeble, half hearted submissions made by the learned counsels for the respondents also stand rejected. 4.6. In the lead judgment, the following conclusion was arrived at. 8(a) Owing to the narrative, discussion and all that have been set out supra, those of the impugned provisions in the said regulations and said tariff order which touch upon content of the programmes of broadcasters are liable to be struck down as 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be equally divided, they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case including who those first heard it, no specific point on which difference has arisen has been specified. When the matter was placed before me, at the threshold this aspect was highlighted by me and the learned counsels appearing for all the parties have stated that even though points of difference have not been specifically pointed out by the Division Bench, the difference as apparent from various discussions and conclusions of the two learned Judges should be culled out and should be decided on that basis without returning the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form itself. Therefore, there is a clear cut mechanism put in place between the two service providers viz., broadcaster and distributor. 5.7. Under the interconnected regulations, a broadcaster must provide its signal to every distributor on reasonable terms. These regulations are founded on the principles of must provide and non exclusion . Accordingly, the broadcaster is duty bound to publish a Reference Interconnected Offer (RIO) setting forth the technological and commercial terms. The object of this regulation is to avoid discrimination and absolute control by a broadcaster as against a distributor. 5.8. The broadcaster uplinks the signal of its channel either by using its own Teleport or by leasing it. To be noted, the signals of the pay channels are in encrypted form. Now, we have different 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 si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and TRAI was given an additional function to specify standard norms and periodicity of revision of rates of pay channels including interim measures. A fruitful recapitulation:- S.O. 44(E).--In exercise of the powers conferred by the proviso to clause (k) of sub-section (1) of section 2 of the Telecom Regulatory Authority of India Act, 1997 (24 of 1997), the Central Government hereby notifies the broadcasting services and cable services to be telecommunication service. [Notification No. 39 issued by Ministry of Communication and Information Technology dated 9 January 2004. S.O. No. 44(E) issued by TRAI, vide F. No. 13-1/2004] ORDER S.O. 45(E).--In exercise of the powers conferred by clause (d) of subclause (1) of section 11 of the Telecom Regulatory Authority of India Act, 1997 (24 of 1997) (hereinafter 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lecom Disputes Settlement and Appellate Tribunal, in which, M/s Media Pro Enterprises India Private Limited was a party. It was nothing but an aggregate of broadcasters including the one of the petitioners herein, who has also been arrayed as fourth respondent. Here again, the contention was rejected while reiterating the views of the Division Bench of the Delhi High Court, referred supra. Once again the Special Leave Petition was dismissed by the Apex Court. 5.15. The petitioner also filed a miscellaneous application in M.A. No.108 of 2009 in Petition No.172 of 2009 before the Tribunal inter alia contending that it is a service provider under the TRAI Act. The finding rendered by the Tribunal is as under: 35. The fact that the petitioner, as a provider of Broadcasting Service , is a service provider is beyond any dispute. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retation. 5.20. On the contrary, giving a factual finding without any legal basis would create a serious impact on the provisions governing. It would amount to deciding legal issues on the disputed questions of fact. After all, a legal issue can only be decided on an admitted fact. The Regulations, the Tariff Order and their impact are admitted facts. Therefore, the question for consideration is the availability of power leading to their birth and legal bar, if any. It is also to be noted at the cost of repetition that even the lead judgment as alluded to earlier, the petitioners have agreed that they do not venture to go into the merits of the case. Thus, the very existence of content as the petitioners seek to espouse would come under the caption merit . Packaging Channels may be a smart, prudent business acumen, but then we are 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. 6.8. An entry in the List under the Seventh Schedule is the field of legislation. Thus the power is derived only under Article 246 of the Constitution of India. Such an entry has to be given widest amplitude of its power as against a narrow and restricted one. A liberal construction of the 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s used in the Constitution must be found from the language used. We should interpret the words of the Constitution on the same principle of interpretation as one applies to an ordinary law but these very principles of interpretation compel one to take into account the nature and scope of the Act which requires interpretation. A Constitution is the mechanism under which laws are to be made and not merely an Act which declares what the law is to be. It is also well settled that a Constitution must not be construed in any narrow or pedantic sense and that construction which is most beneficial to the widest possible amplitude of its power, must be adopted. An exclusionary clause in any of the entries should be strictly and, therefore, narrowly construed. No entry should, however, be so read as not (sic) to rob it of entire content. A broad and liberal spirit should, therefore, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidered the same question in paras 12 and 20 which read as under: (SCC pp. 647 and 649) 12. The primary question, therefore, is: Whether the impugned Act enacted by the State Legislature is one under Entry 53 of the State List, viz., Taxes on the consumption or sale of electricity . Indisputably, the title of the Act as well as the charging Section 3 employ the words duty on supply of electricity . Under article 246(3) of the constitution, every State legislature has explicit power to make law for that State with respect to the matters enumerated in List II (State List) of the Seventh Schedule to the Constitution. The State's power to impose tax is derived from the Constitution. The entries in the three lists of the Seventh Schedule are not power of legislation but merely fields of legislation. The power is derived under Article 246 and other related articles 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 parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruction interpretation. One has to fall upon the object and the reasons behind an enactment. The Court may sit in the armed chair of a maker of the enactment and see through its eyes. 7.2. Interpretations of two enactments as stated above are to be made on the settled legal principles. Thus, there is no presumption of one enactment encroaching upon the other unless there is a clear inconsistency or repugnancy. Therefore, the Court has to be satisfied that the provisions contained in both the enactments sought to be impugned with respect to one of them are irreconcilable and such inconsistency appears so apparent. In the absence of a direct conflict or collision between the two enactments, one cannot be held as contrary to the other. In such a case, even if there is an incidental overlapping, it would not violate the provisions. Occasional vagaries do not matter much. 7.3. 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 CAB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s should be strictly construed. Here again, the modern trend in construing penal statutes has moved away from a mechanical incantation of strict construction. Several judgments were referred to and it was held that a purposive interpretation of such statutes is not ruled out. Ultimately, it was held that a fair construction of penal statutes based on purposive as well as literal interpretation is the correct modern day approach. 29. However, Dr. Singhvi cited Raghunath Rai Bareja v. Punjab National Bank, (2007) 2 SCC 230 and relied upon paragraphs 39 to 47 for the proposition that the literal construction of a statute is the only mode of interpretation when the statute is clear and unambiguous. Paragraph 43 of the said judgment was relied upon strongly by the learned counsel, which states: In other words, once we depart from the literal rule, then any number of interpretations 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial Court will be same whether trying such cases as are instituted before it or transferred to it. The use of different words in Sections 6 and 7 of the Act as already noticed earlier also shows that the words in Section 7 that the prosecution for any offence shall be instituted only in the Special Court deserve a liberal and wider construction. They confer on the Special Court all powers of the Magistrate including the one at the stage of investigation or inquiry. Here, the institution of the prosecution means taking any steps in respect thereof before the Special Court. The scheme of the Act nowhere contemplates that it was intended that steps at precognizance stage shall be taken before a court other than a Special Court. We may note an illustration given by Mr Salve referring to Section 157 of the Code. Learned counsel submitted that the report under that section is required to 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 secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciple has found vast application in cases of there being two statutes: general or specific with the latter treating the common subject-matter more specifically or minutely than the former. Corpus Juris Secundum, 82 C.J.S. Statutes 482 states that when construing a general and a specific statute pertaining to the same topic, it is necessary to consider the statutes as consistent with one another and such statutes therefore should be harmonised, if possible, with the objective of giving effect to a consistent legislative policy. On the other hand, where a general statute and a specific statute relating to the same subject-matter cannot be reconciled, the special or specific statute ordinarily will control. The provision more specifically directed to the matter at issue prevails as an exception to or qualification of the provision which is more general in nature, provided that the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itisation Act vis- -vis Section 38-C of the Bombay Act and Section 26-B of the Kerala Act and similar other State legislations only if there was a specific provision in the two enactments creating first charge in favour of the banks, financial institutions and other secured creditors but as Parliament has not made any such provision in either of the enactments, the first charge created by the State legislations on the property of the dealer or any other person, liable to pay sales tax, etc., cannot be destroyed by implication or inference, notwithstanding the fact that banks, etc. fall in the category of secured creditors. 49. Since there is no clear disharmony between the two Parliamentary statutes in the present case which cannot be resolved by harmonious interpretation, it is clear that both statutes must be read together. Also, we must not forget that Section 30 of the 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the two cannot stand together. But, if the two can be read together and some implication can be made of the words in the earlier Act, a repeal will not be inferred. (See: A.G. vs. Moore 1878 (3) ExD 276, Ratanlal's case (supra) and R.S. Raghunath vs. State of Karnataka and Anr. 1992 AIR(SC) 81 ). 7. The necessary questions to be asked are: (1) Whether there is direct conflict between the two provisions- (2) Whether the Legislature intended to lay down an exhaustive Code in respect of the subject-matter replacing the earlier law; (3) Whether the two laws occupy the same field. (See: Pt. Rishikesh and Anr. vs. Salma Begum (Smt.) 1995 (4) SCC 718 ), and Shri A.B. Krishna Ors. vs. The State of Karnataka Ors. 1998 (1) JT 613 ). 8. The doctrine of implied repeal is based on the theory that the Legislature, which is presumed to know the existing law, did not intend to create 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 ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o that the provision becomes constitutional. 28. As observed by this Court in Government of Andhra Pradesh vs. P. Laxmi Devi (supra) every effort should be made by the Court to try to uphold the validity of the statute, as invalidating a statute is a grave step. Hence we may sometimes have to read down a statute in order to make it constitutional. 10. EXTERNAL AID: There is no difficulty in interpreting a parie materia provision through external aid. However, such an exercise shall also be done on exceptional circumstances. To be noted, it may be done on satisfying that both the enactments deal with the same field. 11. LEGAL FICTION: 11.1. A legal fiction is a presumption of facts, which are necessary. Therefore, law itself requires certain facts to be in existence though not factually available. An interpretor is required to imagine certain facts. While construing the provision involving legal 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 DEVELOP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition of owner in Section 3(n) of the Nationalisation Act read with Section 2(1) of the Mines Act is that although the petitioners were not the owners, they being the contractors for the working of the mine in question, were to be treated as such though, in fact, they were not so. (Emphasis added) 29. The instant case is required to be decided in the light of the aforesaid settled legal propositions. 12. SUBORDINATE LEGISLATION: 12.1. The law governing a challenge to the subordinate legislation is well crystallised by the Courts. Thus, until and unless one finds lack of competency, manifest arbitrariness, total and substantive unreasonableness, such a legislation cannot be declared as ultra vires. 12.2. CELLULAR OPERATORS ASSOCIATION OF INDIA AND OTHERS VS. TELECOM REGULATORY AUTHORITY OF INDIA AND OTHERS ((2016) 7 Supreme Court Cases 703). 20. In State of Tamil Nadu v. P. Krishnamoorthy, (2006) 4 SCC 517, this 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and (iv) it may be used merely to act as an optional addendum to the enactment with the sole object of explaining the real intendment of the statutory provision. 27. Mr. Shenoy, the learned Counsel for the Petitioner has contended that a proviso may exist as an independent provision provided it does not make any reference to the main body of the Section to which it stands attached. He has further argued that such independent provisions may derogate from the other provisions and if they are of subsequent vintage, then even on the application of the maxim 'leges posteriores priores contrarias abrogant' they would remain impervious or impregnable to attacks of being struck down being ultra vires. His submission is that since the substantive part of Section 2(1)(k) of TRAI Act clearly contemplates broadcasting services the 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us and thus a specie. Noscitur a sociis is the rule of construction with reference to the words found in immediate action with them. It is much wider than the rule of ejusdem generis. In fact, rule of ejusdem generis is one of the species of Noscitur a sociis. Here again, general rule of interpretation depending on the text and context is required to be adopted at first. Thus, the words as used are to be understood as such before applying the rule of Noscitur a sociis. 15.2. SUBRAMANIAN SWAMY VS. UNION OF INDIA, MINISTRY OF LAW AND OTHERS ((2016) 7 Supreme Court Cases 221). 71. In State of Bombay v. Hospital Mazdoor Sabha, (AIR 1960 SC 610 = (1960) 2 SCR 866), it has been held that it must be borne in mind that noscitur a sociis is merely a rule of construction and it cannot prevail in cases where it is clear that wider words have been deliberately used in order to make the scope of the defined word correspondingly wider. It is only where the intention of 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence on an application of general principles of interpretation, we would hold that the word luxuries in Entry 62 of List II means the activity of enjoyment of or indulgence in that which is costly or which is generally recognised as being beyond the necessary requirements of an average member of society and not articles of luxury. 74. At this juncture, we may note that in Ahmedabad (P) Primary Teachers Assn. v. Administrative Officer, ((2004) 1 SCC 755= 2004 SCC (L S) 306), it has been stated that noscitur a sociis is a legitimate rule of construction to construe the words in an Act of Parliament with reference to the words found in immediate connection with them. In this regard, we may refer to a passage from Justice G.P. Singh, Principles of Statutory Interpretation, (13th Edn., 2012) 509, where the learned author has referred to the lucid explanation given by Gajendragadkar, J. We think it appropriate to reproduce the passage:- It is a rule wider than 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, Interpre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity if it incites to make an offence. The word defamation has its own independent identity and it stands alone and the law relating to defamation has to be understood as it stood at the time when the Constitution came into force. 76. The submission is that Sections 499 and 500 IPC are not confined to defamation of the State or its components but include defamation of any private person by another private person totally unconnected with the State. In essence, the proponement is that the defamation of an individual by another individual can be a civil wrong but it cannot be made a crime in the name of fundamental right as protection of private rights qua private individuals cannot be conferred the status of fundamental rights. If, argued the learned counsel, such a pedestal is given, it would be outside the purview of Part III of the Constitution and run counter to Articles 14, 19 and 21 of the Constitution. It is urged that defamation of a private person by another person 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 ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, or order upon himself. This rule is applied to ensure equity, however, it must not be applied in such a manner, so as to violate the principles of, what is right and, of good conscience. (Vide: Nagubai Ammal Ors. v. B. Shama Rao Ors., AIR 1956 SC 593; C.I.T. Madras v. Mr. P. Firm Muar, AIR 1965 SC 1216; Ramesh Chandra Pradeep Oil Corporation v. Municipal Corporation of Delhi AnrSankla etc. v. Vikram Cement etc., AIR 2009 SC 713; ., AIR 2011 SC 1869; Cauvery Coffee Traders, Mangalore v. Hornor Resources (International) Company Limited, (2011) 10 SCC 420; and V. Chandrasekaran Anr. v. The Administrative Officer Ors., JT 2012 (9) SC 260). 16. Thus, it is evident that the doctrine of election is based on the rule of estoppel- the principle that one cannot approbate and reprobate is inherent in it. The doctrine of estoppel by election is one among the species of estoppels in pais (or equitable estoppel), which is a rule of equity. By this law, a person may be precluded, 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 bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r flowing from the concentration of the right to broadcast/telecast in the hands either of a central agency or of few private affluent broadcasters. That is why the need to have a central agency representative of all sections of the society free from control both of the Government and the dominant influential sections of the society. 82.The fourth contention is that, as held by the US Supreme Court, the freedom of speech has to be viewed also as a right of the viewers which has a paramount importance, and the said View has significance in a country like ours. To safeguard the rights of the viewers in this country, it is necessary to regulate and restrict the right to access to telecasting. There cannot be any dispute with this proposition. We have in fact referred to this right of the viewers in another context earlier. True democracy cannot exist unless all citizens have a right to participate in the affairs of the polity of the country. The right to participate in the affairs of the 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, misi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... telecast pursuant to the impugned order of the High Court, it is not necessary to decide the correctness of the said order.......... 194....Airwaves, being public property must be utilised to advance public good. Public good lies in ensuring plurality of opinions, views and ideas and that would scarcely be served by private broadcasters, who would be and who are bound to be actuated by profit motive. ....... To repeat, airwaves are public property and better remain in public hands in the interest of the very freedom of speech and expression of the citizens of this country. 200...........The fact remains that private broadcasting, even if allowed, should not be left to market forces, in the interest of ensuring that a wide variety of voices enjoy access to it. 201(b)(b)Airwaves constitute public property and must be utilised for advancing public good. No individual has a right to utilise them at his choice and pleasure and for purposes of his choice including profit............... (c)Broadcasting 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct to provide for the establishment of the1 [Telecom Regulatory Authority of India and the Telecom Disputes Settlement and Appellate Tribunal to regulate the telecommunication services, adjudicate disputes, dispose of appeals and to protect the interests of service providers and consumers of the telecom sector, to promote and ensure orderly growth of the telecom sector,] and for matters connected therewith or incidental thereto. A reading of the aforesaid would clearly show that the object was to regulate the telecommunication services, to protect the interest of service providers, such as, broadcasters, distributors etc., along with the consumers, who are otherwise called as subscribers and to promote orderly growth. The preamble also gives additional powers to deal with matters connected and incidental to the object. Hence, there is no doubt that the Act in its sweep takes care of many factors. Thus, the Act was introduced in exercise of the power under Article 246 of the Constitution of India over a 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 soug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate must be interpreted to include prohibition within its fold. Some of the observations made in that judgment (paragraph10) are extracted below: We do not think that regulation has that rigidity of meaning as never to take in prohibition . Much depends on the context in which the expression is used in the statute and the object sought to be achieved by the contemplated regulation. It was observed by Mathew, J. in G.K. Krishnan v. State of T.N. (1975) 1 SCC 375: The word regulation has no fixed connotation. Its meaning differs according to the nature of the thing to which it is applied. In modern statutes concerned as they are with economic and social activities, regulation must, of necessity, receive so wide an interpretation that in certain situations, it must exclude competition to the public sector from the private sector. More so in a welfare State. It was pointed out by the Privy Council in Commonwealth of Australia v. Bank of New South Wales (1949) 2 All ER - and we agree with what was stated 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct by rule or restriction; to direct or manage according to certain standards, laws, or rules; to rule; to conduct; to fix or establish; to restrain; to restrict. See also: Webster s Third New International Dictionary, Vol. II, p. 1913 and Shorter Oxford Dictionary, Vol. II, 3rd Edn., p. 1784. It has often been said that the power to regulate does not necessarily include the power to prohibit, and ordinarily the word regulate is not synonymous with the word prohibit . This is true in a general sense and in the sense that mere regulation is not the same as absolute prohibition. At the same time, the power to regulate carries with it full power over the thing subject to regulation and in absence of restrictive words, the power must be regarded as plenary over the entire subject. It implies the power to rule, direct and control, and involves the adoption of a rule or guiding principle to be followed, or the making of a rule with respect to the subject to be regulated. The power to regulate implies the power to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion became a legitimate ancillary or incidental power in furtherance of the regulation under the Act. 86. The term regulation was also interpreted in Quarry Owners Association v. State of Bihar (2000) 8 SCC 655 in the context of the provisions contained in the Mines and Minerals (Regulation Development) Act, 1957 and it was held: Returning to the present case we find that the words regulation of mines and mineral development are incorporated both in the Preamble and the Statement of Objects and Reasons of this Act. Before that we find that the Preamble of our Constitution in unequivocal words expresses to secure for our citizens social, economic and political justice. It is in this background and in the context of the provisions of the Act, we have to give the meaning of the word regulation . The word regulation may have a different meaning in a different context but considering it in relation to the economic and social activities including the development and excavation of mines, ecological and environmental factors including States contribution in developing, manning and controlling such activities, including parting with its wealth, viz., the minerals, the fixat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EK GOENKA VS. UNION OF INDIA AND ANOTHER ((2012) 5 Supreme Court Cases 275). 22.We have clearly stated that it is not for this Court to examine the merit or otherwise of such policy and regulatory matters which have been determined by expert bodies having possessing requisite technical knowhow and are statutory in nature. However, the Court would step in and direct the technical bodies to consider the matter in accordance with law, while ensuring that public interest is safeguarded and arbitrary decisions do not prevail. (emphasis supplied) Therefore, if one sees the preamble along with the statement of object and reasons it is clear that the intention was to make provisions regulating the services to meet the customers demand at a reasonable price. Hence, the paramount interest is that of the consumer, who should be given the choice to select a channel on a level playing ground. Two amendments were made in the year 2000 and 2004. Once the Act is understood as a social, welfare one, a liberal approach has to be adopted in tune 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The intention of Parliament was already manifestly clear, namely, that although broadcasting is inherently covered under the TRAI Act and the Telegraph Act, its galloping growth has warranted that it should be governed by a separate statutory structure. It was for this reason that although broadcasting services would fall within the umbra of the definition of telecommunication services as available in Section 2(k) of the TRAI Act, it was from the very inception intentionally excluded there from, in the sanguine expectancy that the Broadcasting Bill would very soon receive statutory standing alongside the TRAI Act. In the event, however, the planning proved presumptuous. The Proviso is the penumbra which will persist only till the passing of the Broadcasting Bill or the Convergence Bill, as the case may be. It appears to us that this is the intention of Parliament. 17.8. As stated supra, this judgment has been taken note of and approved by the Appellate Authority in M.P.No.108 of 2009 etc., in Petition No.172 of 2009. Therefore, there 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge made to the definition section was repelled by the Delhi High Court and confirmed by the Apex Court. Therefore, there is no difficulty in holding that broadcasting service is a specie of the genus i.e., telecommunication service. 17.12. Section 2(2) speaks in clear terms that words and expressions, though used and not defined in this Act, but defined in two other enactments will have the same meaning. There is no difficulty in appreciating the rationale behind the aforesaid provision. Such a legislation is absolutely permissible especially, when enactments dealt with similar matters and in any case, there is no challenge made to this provision. After all, a legislation by reference or incorporation is certainly permissible in law. 17.13. The next important provision is Section 11 of the Act. Section 11 has got four different parts. This section speaks about the functions of the authority. It has got two fundamental functions, viz., recommendatory and regulatory. We are primarily concerned with Sections 11(1)(b), (c), (d), 11(2) and 11(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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the area available. To put it differently, safeguards are required when powers are more. If it is a mere administrative action to be exercised on a restrictive field then there is no need for any safeguard. 17.15. Section 12 of the Act speaks about the powers of the authority to call for information, conduct investigation etc. In sub clause (4) a power to issue direction to a service provider, for its proper functioning is bestowed on the authority. This provision also once again reiterates the extent of power that can be wielded by the authority over a service provider. 17.16. Section 13 touches upon the power of the authority to issue direction in discharge of the function under Section 11(1) of the Act. These directions are meant to be complied by the service providers. While Section 11 speaks about function, this provision, the power. Section 11(1) has to be read along with Section 13. Here again, it is to be noted that this power is required only for the reason a larger role is bestowed upon the authority in his function under Section 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 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 11(2) of the Act. Though this notification came into being in the year 2004, the same has not been put into challenge. On the contrary, they did make a challenge to the very definition clause perhaps on the understanding that the notification is only consequential. Hence, suffice it is to state that the petitioners are bound by the Act, notification and the regulations and Tariff Order issued from time to time. Perhaps, the petitioners understood the aforesaid position and thus did not raise any murmur to the earlier tariff orders, which might have also been questioned on the very same lines, as they now contend. 17.22. The following decisions would clearly establish the availability and existence of the power under Sections 11 and 36 of the TRAI Act. AVISHEK GOENKA VS. UNION OF INDIA AND ANOTHER ((2012) 5 Supreme Court Cases 275) 18. If one examines the powers and functions of TRAI, as postulated under Section 11 of the Act, it is clear that TRAI would not only recommend, to the DoT, the terms and conditions upon which a licence is granted to a service provider but has to also ensure compliance of the same and may recommend revocation of licence in the event of non- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has to be ascertained in every case where such a submission has been put forward is whether the legislative policy has been delineated before the delegation is made, and also whether a correctional system of superintendence and supervision of the delegate's actions has been put in place. Courts should also consider the degree to which delegation is inevitable or necessary or expedient. The frontiers within which the Delegate/Authority must function is further identifiable from indicia available in the Act itself. The Preamble enjoins that the Authority should endeavor to (a) regulate the telecommunication services, (b) protect the interests of service providers and consumers of the telecom sector, (c) to promote and ensure orderly growth of the telecom sector. Jural experience would vouch that fees or rates prescribed in the statute invariably become unrealistic aeons before they receive corrective attention. Where fees, tariffs and rates are dependent on market forces it is expedient to leave their determination and change to the Executive or the Authority or the Regulators, as the case may be. Where redressal machinery is provided for such delegation should be impervious to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h regulations can be made by the Authority. Three of these topics relate to meetings of the Authority, the procedure to be followed at such meetings, the transaction of business at the meetings and the register to be maintained by the Authority. The remaining two topics specified in Clauses (e) and (f) of Section 36(2) are directly referable to Section 11(1)(b)(viii) and 11(1)(c). These are substantive functions of the Authority. However, there is nothing in the language of Section 36(2) from which it can be inferred that the provisions contained therein control the exercise of power by the Authority under Section 36(1) or that Section 36(2) restricts the scope of Section 36(1)............. 97.The same proposition has been reiterated in Academy of Nutrition Improvement v. Union of India(2011) 8 SCC 274 [Para66] . The observations contained in the last portion of that paragraph suggesting that the power conferred upon the rule making authority does not entitle it to make rules beyond the scope of the Act has no bearing on these cases because it has not been argued before us that the regulations framed under Section 36 are ultra vires the provisions of the TRAI Act. 17.25. HOT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from time to time. Consultation process would show an element of fairness adopted by TRAI. Almost all the objections raised have been dealt with sufficient reasons as could be seen from the explanatory memorandum attached to the impugned proceedings. As noted, strangely the petitioners challenged some of the clauses in the Regulations and the Tariff Order, despite asking for and agreed upon. Be that as it may, the Regulations and the impugned Tariff Order clearly mention the object, logic and the reason behind them. They do not fix any cap on the pricing of the channel. However, it was felt that the underlying principle that the consumer is the king is being destroyed by the so called business acumen, marketing strategy or commercial prudence. Suffice it is to state that the petitioners are aggrieved by the impugned Regulations and the Tariff Order. Therefore, power can be generously traced to Sections 36, 11(i)(b) and 11(i)(d) of the TRAI Act. As discussed above, these provisions along with the Notification do provide sufficient ammunition to sustain the impugned regulation. 18. IMPUGNED REGULATIONS: 18.1. Chapter 1 deals with the definition clause. This chapter speaks of al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delines issued or amended by it from time to time and reference to the term channel shall be construed as a reference to television channel . 18.2. As discussed above, the definition clauses, which come under chapter-1 are to be read in consonance with the main Act unless the contrary is proved. Accordingly, broadcaster has been defined as the one, who obtains permission for its channel and provides programme service. The word interconnection has been defined as the one in between the service providers and the subscribers. Therefore, the relationship between the service providers and the subscribers has been rightly taken note of. To make the position clear, a licensee is once again reiterated as the service provider, which is inclusive of broadcaster, distributor and local cable operator. Therefore, all the three set of actors have been brought under the purview of the service provider. A set top box, which otherwise called STB, has been defined as a device which enables the end user viz., the subscriber to view the subscribed channels. Therefore, it is clear that without the set top box, which is to be provided by a service provider, no subscriber can either actually or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the prime reason for such poor uptake of a-la-carte channels is that the a-la-carte rates of channels are disproportionately high as compared to the bouquet rates and further, there is no well defined relationship between these two rates. As per data available with TRAI, some bouquets are being offered by the distributors of television channels at a discount of upto 80% -90% of the sum of a-la-carte rates of pay channels constituting those bouquets. These discounts are based on certain eligibility criteria/conditions to be fulfilled by the distributor of television channels in order to avails those discounts from broadcasters. Such high discounts force the subscribers to take bouquets only and thus reduce subscriber choice. As a result, while technically, a-la-carte rates of channels are declared, these are illusive and subscribers are left with no choice but to opt for bouquets. Bouquets formed by the broadcasters contain only few popular channels. The distributors of television channels are often asked to take the entire bouquet as otherwise they are denied the popular channels altogether or given such popular channels at RIO rates. To make the matters worse, the distributors of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e forming bouquets is anti subscriber. In this regard, while the Authority wants to facilitate the availability of a-la-carte choice to customers/ subscribers, it does not intend to encroach upon the freedom of broadcasters and distributors to do business. During the discussions in the Parliament on the motion for consideration of the Cable Television Networks (Regulation) Amendment Bill, 2011, the then Minister of Information and Broadcasting emphasised the need to establish a system for subscribers to choose a-lacarte channels of choice. The Authority has also made several attempts in this regard, but for one or the other reason could not succeed. Here it is important to understand that the Authority has not been able to do pricing of channels in the absence of pricing of content. Present trends indicate that majority of channels are priced much below the prevailing ceiling, but higher ceilings were prescribed to give flexibility to broadcasters to monetise their channels and freedom to do business. Further, different channels even in the same genre may have varying cost of production and potential to monetise, but within the framework. A broadcaster may price even non-driver cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears. 68. A broadcaster is free to offer its pay channels in the form of bouquet(s) to customers. While subscribing to bouquet, a customer may not be aware of the price of each channel forming the bouquet. Abnormal high price of a pay channel may result in higher price of a bouquet leading to adverse impact on subscribers interests. It is an established fact that bundling of channels complicates and obscures their pricing. Prices are obscured because subscribers do not always understand the relationship between the bundle price and a price for each component. However, the bundling of channels offers convenience to the subscribers as well as services providers in subscription management. Keeping in view these realties and to protect the interests of subscribers, the Authority has prescribed a ceiling of ₹ 19/- on the MRP of pay channels which can be provided as part of a bouquet. Therefore, any pay channel having MRP of more than ₹ 19/- cannot become part of any bouquet. The amount of ₹ 19/- has been prescribed keeping in view the prevailing highest genre wise ceilings of ₹ 15.12 for all addressable systems between broadcaster DPOs at wholesale level an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erformance so made available. Explanation.- For the purposes of this clause, communication through satellite or cable or any other means of simultaneous communication to more than one household or place of residence including residential rooms of any hotel or hostel shall be deemed to be communication to the public; 19.5. Work has been defined under sub clause 'y' to mean any one of the following works. (y) work means any of the following works, namely:- (i) a literary, dramatic, musical or artistic work; (ii) a cinematograph film; (iii) a 2 [sound recording]; 19.6. If one reads sub clauses (ff) and (y) of Section 2, making any work would mean the works mentioned in sub clause 2(y). This should be available for being seen or heard or otherwise enjoyed by the public directly or by other means mentioned therein. Therefore, what is to be kept in mind is the availability of any work to be seen by the general public. This position has been reiterated once again by the later portion of the definition section by creating a deeming fiction as to whether any member of the public actually sees, hears or otherwise enjoys the work, which is made available. Henc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt held that all music or lyrics created for the purpose of cinematographic film would be deemed to be owned by the producer in the absence of any written contract to the contrary. The second reason was to strengthen the rights of the authors and to protect from unfair contracts. The third was with respect to the administration of the copyright societies as the existing ones did not yield the desired result. 20.3. For the abovesaid objective, the Bill sought to introduce the following proviso to Section 18: Provided that in case of any work incorporated in a cinematograph work, nothing contained in clauses (b) and (c) shall affect the right of the author in the work referred to in clause (a) of sub-section (1) of section 13. 20.4. The Parliament Standing Committee also made a comment on Section 13(1)(a) of the Act which is as under: The Committee also takes note of the fact that independent rights of authors of literary and musical works in cinematograph films are being wrongfully exploited by the producers and music companies by virtue of Supreme Court judgment in Indian Performing Rights Society Vs. Eastern Indian Motion Pictures Association which held that film pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the requirement of the licence for broadcasting of literary and musical works and sound recording. Here again, it mandates a broadcasting organisation to pay the owner of the copyright the royalties and for that purpose maintain the accounts. Thus, even this provision speaks about the duty of the broadcasting agencies vis a vis the rights of the owner. Chapter VII speaks of the registration and functioning of the copyright societies. The object is to make sure that a copyright holder is not left in lurch. That can also be seen on a perusal of Section 33-A of the Act, which speaks of tariff scheme and Section 34, which deals with administration of right of the owner by the copyright society. On a perusal of the speech of the Honourable Minister for Information and Broadcasting while introducing the Bill and the bird's eye view of the amendment, one can say with certainty that these provisions have been introduced to avoid the exploitation and alienation of the holder of the copyright. A specific reference has been made on the suffering of the copyright holder when substantial profit went into the kitty of a licensee much to his agony. Suffice it is to state that it does not con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es takes place in the manner as defined in the Act, there is no corresponding right over a broadcast reproduction. Sub clause 2 once again reiterates that such a right shall subsist from the beginning of the calendar year following the year in which the broadcast is made. 20.12. The broadcast reproduction right is a right ascribed to a broadcasting organisation being a special one. Such a right is controlled and circumscribed by Section 37 of the Act. This provision has to be seen in tune with the other provisions, which are specifically applicable under Section 39-A. As discussed earlier, most of the provisions, in fact, deal with the duty of the broadcasting organisation and the right, if any, could only be confined to the provisions applicable and not beyond. 20.13. There is absolutely no copyright or a broadcast reproduction right given independently to a television channel. Such a right is relatable and attributable to a particular broadcast alone. For example, it can be made applicable to a movie being a work and the programme as defined under the Act. In other words, the copyright does not recognise any specific right of television channel but it may become a broa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the presence of Section 38, which speaks about a performance right, which would also accrue when he actually does it which is importantly relatable to that performance alone. 20.18. Section 39-A deals with application of certain provisions in case of broadcast reproduction right. It does not speak about the general provisions, which are otherwise applicable to a copyright holder. Since broadcasting reproduction right is a special right, it does not take away the right of a copyright holder over a broadcasting organisation. Therefore, Section 39-A has to be understood to mean, protecting the rights of a copyright holder as against the organisation being a licensee. A purposive interpretation of this section along with the proviso coupled with the speech delivered by the Honourable Minister on the floor of the parliament would settle the issue. 20.19. Much has been said on the application of Section 33-A of the Act read with Rule 56, which deals with tariff scheme. On combined reading, it is primarily a right involving a copyright holder. Secondly, it deals with the nature and quantum of royalties. A society is supposed to collect the royalty from the licensee in advance und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstances, Courts have to try and reconcile them as best it may. If it cannot be done, the Courts have to determine which is the leading provision and which the subordinate provision and which must give way to the other. That would be so with regard to the enactment and with regard to rules which are to be treated as if within the enactment. Even if there be any conflict between the provisions, it is the duty of the court to harmonize the construction of statute. 36. As per the Rules of Statute and Interpretation as stated supra, in the event of conflict between the rules and provisions of the Act, Courts have to try and reconcile them at best it may and even if there be any conflict between the rules and provisions, it is the duty of the Court to put harmonious construction. 20.22. M/S NOIDA SOFTWARE TECHNOLOGY PARK LTD., V. M/S MEDIA PRO ENTERPRISE INDIA PVT. LTD., AND OTHERS (Petition No.295) (C) of 2014 dated 07.12.2017) 20.23. The Telecom disputes Settlement and Appellate Tribunal by an order dated 07.12.2015 held as follows: We now come to the submissions made by Mrs. Pratibha M. Singh, learned Senior Advocate appearing for Taj that in interpreting the Int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of Canada came to the notice of this Court by chance, though not placed by the respective counsels. It would be worthwhile to consider the facts and the issues involved. This Court is also of the view that having come to know of the decision, it would be otherwise not fair not to discuss it. Thus keeping in mind the legal position qua the precedential value of foreign judgment, let us discuss. 20.25. The Canadian Broadcasting System is regulated and supervised by the Canadian Radio-television and Telecommunications Commission ( CRTC ) under the Broadcasting Act, SC.91, C 11. A regulated regime was sought to be introduced in the year 2010 by which the private local television stations (broadcasters) could choose to negotiate direct compensation for the retransmission of their signals by the Broadcasting Distribution Undertakings ( BDUs ) such as cables and satellite companies. These companies can be referred as distributors. This new regime empowers a broadcaster to authorise or prohibit a distributor from retransmitting their programming service. 20.26. This regime was disputed by the BDUs inter alia contending that there is no power under the Broadcasting Act which w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd retailing of those programming services. 20.29. Sections 9 and 10 deal with the powers and functions of the Commission inclusive of a power to make regulations. They are as under: 9(1) Subject to this Part, the Commission may, in furtherance of its objects, (a) establish classes of licences; (b) issue licences for such terms not exceeding seven years and subject to such conditions related to the circumstances of the licensee (i)as the Commission deems appropriate for the implementation of the broadcasting policy set out in subsection 3(1), and (ii)in the case of licences issued to the Corporation, as the Commission deems consistent with the provision, through the Corporation, of the programming contemplated by paragraphs 3(1)(l) and (m); (c)amend any condition of a licence on application of the licensee or, where five years have expired since the issuance or renewal of the licence, on the Commission's own motion; (d)issue renewals of licences for such terms not exceeding seven years and subject to such conditions as comply with paragraph (b); (e)suspend or revoke any licence; (f)require any licensee to obtain the approval of the Commission be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... majority decision, it was held that the Act mainly deals with protecting and enhancing the cultural aspect. Section 3(1) merely deals with declaration of a policy and therefore cannot be provided with an independent grant of power. Section 3(1) is also to be seen in the light of intendment. The subject matter of the regulation cannot be traced to section 9 and 10. Thus the regulation ultra vires the Act. 20.31. The second issue is with respect to the infringement of the provisions of the Copyright Act. Section 21(1) of the Act deals with limited rights of a copyright holder with a communication signal that it broadcasts. Such a right is also subject to the one available under Section 31(1) in favour of retransmitter , who can be called for our purpose as a distributor. The aforesaid provisions are hereunder: 21(1). Subject to subsection (2), a broadcaster has a copyright in the communication signals that it broadcasts, consisting of the sole right to do the following in relation to the communication signal or any substantial part thereof: (a)to fix it, (b)to reproduce any fixation of it that was made without the broadcaster's consent, (c)to authorize another b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case on hand, it is not so. The Canadian Supreme Court proceeded on the footing that there is an element of public interest in the Copyright Act as against the Broadcasting Act. The position is totally different before us. It is rather otherwise. The aforesaid decision has been rendered on the basis of provisions contained therein and thus has no application to our case. If there is a public interest in a lis between two parties, be it a copyright owner on one hand and the licensee on the other hand, the same cannot become a social or welfare legislation. There is a difference between an Act which is meant to protect and enhance the rights of the general public and the one which upholds the interest of one group of persons which might lead to an element of fairness. Providing a level playing field and creating an element of fairness is different from a welfare legislation. The power conferred under the TRAI Act as discussed at length is sufficient enough to cover the present Regulations and Tariff Order. The Canadian judgment also throws light on one important issue. Once again it deals with the broadcasting of only a programme . Secondly the regulation therein was meant to act b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re interpretation is required on the scope of Section 4 since the first petitioner itself took a plea before the Tribunal in STAR INDIA PRIVATE LIMITED VS. BSNL that it is service provider within the meaning of TRAI Act and accordingly, it was held that any permission granted by any Ministry to a broadcaster is to be construed as a licence within the meaning of the Indian Telegraph Act, 1885. BHARTI AIRTEL LTD., V. UNION OF INDIA ((2015) 12 Supreme Court Cases 1). 42. By a statutory declaration made under Section 4 of the Indian Telegraph Act, 1885, it is declared that the Government of India shall have the exclusive privilege for establishing, maintaining and working telegraphs (which includes telephones). The proviso to Section 4 of the said Act authorizes the Government of India to grant license to establish, maintain and work telegraphs (which includes telephones) on such conditions and in consideration of such payments as it thinks fit. Telephones include both wired and wireless telephones like cellular mobile phones, the establishment and working of which necessarily requires access to spectrum which again is controlled by the Government of India as it is already decl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section defines an authority, which is none other than the fourth respondent viz., TRAI Act. A broadcaster has been defined as the one who provides the programme service. Incidentally, the words programme and programming service have also been defined. However, it is interesting to note that this definition of programme has been made to mean any television broadcast. It also makes clear, the scope and ambit of the enactment. 22.2. Section 4-A of the Act deals with transmission of programme through digital addressable systems. This came into being with effect from 25.10.2011 by taking note of the technological development. The usage of set top box has been taken note of under this section through the explanation. This section also defines expression encrypted and unencrypted apart from free to air channel and pay channels. The Act also seeks to regulate the programme code and the developments code. Thus, this Act has also to be read along with the TRAI Act. It only helps TRAI Act through its provisions. Rule 10 was substituted by GSR940(E) dated 28.04.2012. Rule 10 as it stands before the amendment. 10. Nature and prices of channels: (1) Every broadcaster shall declare th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehind the amendment. The relevant passage is fruitfully extracted. III Applicability to the notified CAS areas: 47. As already indicated in paragraph 15 supra, the Authority is of the view that the tariff dispensation for broadcasting and cable services can follow two broad frameworks, one for addressable systems and the other for non-addressable systems. The general principles of tariff determination under the present tariff order are, thus, intended to be applicable to all addressable systems, including cable services provided through conditional access systems (CAS) in areas notified by the Central Government under section 4A of the Cable Television Networks (Regulation) Act, 1995. However, the immediate application of the present tariff order to cable services in such notified areas may lead to an anomaly as regards specification of wholesale and retail rates for pay channels. This is on account the fact that there are certain existing provisions in the Cable Television Networks Rules, 2004 relating to fixation of prices of channels. Rule 10 of the said Rules provides, inter alia, that every broadcaster shall declare the nature of each of its channels as pay or freeto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rit petition filed by the petitioner was taken note of. Accordingly, paragraph 19 of the aforesaid judgment was quoted with approval, which is as under. 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 2007SCC On Line Del 951 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 service [see Section 11(1)(a)(iv)] . TRAI must regulate arrangements amongst service providers of sharing their revenue derived from providing telecommunication services [see Section 11(1)(b)(iv)] and generally to perform such other function including such administrative and financial functions as may be entrusted to it by the Central Government as may be necessary to carry out the provisions of the Act [see Section 11(1)(d)]. However, on perusal of Section 11 (2) there is no scope for any controversy co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n case they fail to arrive at mutually acceptable agreement. The TRAI has carried out the mandate of the Rule. The Rule is not challenged. Coming to the argument regarding curtailment of freedom to contract, Article 19 (1)(g) of the Constitution gives the parties a freedom to trade which includes freedom to contract. However, this freedom is subject to reasonable restrictions. Even at the Common Law, there was never any absolute freedom to contract, for instance, nobody could enter into a contract to do an illegal act. As the society grew, need for regulation gradually increased and inroads were made in the freedom to contract. Article 19 permits 'reasonable restrictions' being imposed in the domain of freedom of contract. The TRAI Act and the CTN Act are both primary legislations which purport to regulate the broadcasting service. They provide for reasonable restrictions. The regulation is in the interest of society. There is no challenge to these statutes. The legislation permits curtailment of freedom to contract. It is settled that freedom of contract is not available in absolute terms and it can be curtailed by legislation for justifiable reasons. Power to regulate all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng fiction has to be taken to its logical conclusion. The amendment of the year 2012 takes away the power, if any, in any other enactment, including, the rules framed under the Cable Television Networks Regulation Act, 1995. Section 3(a) read with Rule 56 has to be seen giving right to a broadcasting right protection holder against a distributor. Section 37 paves way for a Television Channel to be governed under the Copyright Act. Thus, it is protected by the aforesaid provision. Therefore, Copyright Act is a separate code governing the field, especially, after the amendment made in the year 2012. It is not open to TRAI to contend otherwise after a specific stand in the counter affidavit. The role of TRAI under the Cable Television Networks (Regulation) Act, 1995 is very limited. 23.4. Shri P.Chidambaram, in his inimitable style gives en example of a Goods Train carrying the goods to the destination. Accordingly, it is submitted that the function of TRAI under the Act is to charge only a carriage fee, deal with related aspects and thus, cannot travel beyond it. Shri. Abhishek Singhvi in his reply placed reliance upon three judgments to buttress the submission that even before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be said that content is involved. The TRAI Act and the Cable Television Networks (Regulation) Act, 1995 deal with the same entry. There is no challenge to the provision of the TRAI Act. The lead decision does not consider the scope of TRAI Act in the right perspective. There is no basis indicated on the conclusion that the content is involved. The decision rendered in PETROLEUM AND NATURAL GAS REGULATORY BOARD V. INDRAPRASTHA GAS LIMITED AND OTHERS (2015) 9 Supreme Court Cases, 209) has to be seen contextually. Similarly, the decision relied upon by the petitioners in ESPN STAR SPORTS V. GLOBAL BROADCAST NEWS LTD., (2008) (38) PTC 477 (DEL.) (DB) cannot be understood to hold that Section 37 of the Copyright Act protects a television channel. Accordingly while rejecting the lead judgment, dissenting one has to be concurred with. 25. DISCUSSION ON SUBMISSIONS: 25.1. Before proceeding further, let us once again reiterate and reconfirm the scope and extent of scrutiny as understood by the parties and accordingly, recorded duly by the Court. A reproduction of the relevant passages would suffice. 4(b)............. However, it is crucial to note that writ petitioners have made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Cable Television Networks (Regulation) Act, 1995. This Act deals with cable television network. That is the reason why, the authority is the same along with the definition of digital addressable system and introduction transmission of programmes through digital addressable system etc. Therefore, this enactment deals with the last part of the broadcast. On the contrary, the Copyright Act deals with a different scenario altogether. There are only two players involved. The object of the Act is to protect the interest of the copyright holder and to the limited extent, a BRR holder and a third party with a specific reference to the tariff scheme. As discussed earlier, the BRR is not the same as a copyright though akin to it but with its own limitation. It is also subject to the copyright of a owner. 25.3. Section 2(k) of the TRAI Act merely explains a telecommunication service. Therefore, even assuming it can be divided into three parts as suggested by the learned counsel for the petitioners, the conclusion does not change as discussed supra. The TRAI Act does not deal with a mere means of transmission alone. Perhaps the petitioners do understand it rather well. That is the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. There is nothing to contradict the detailed analysis made, in the explanatory memorandum in this regard. In any case, such a power cannot be imported into the amendment of the year 2012 of the Copyright Act, which obviously deals with a different scenario. 25.8. We have also discussed at length on the interpretation and meaning of the provision contained in the Copyright Act. The submissions made by the learned Senior Counsels for the petitioners that a broadcast takes place a moment of uplinking and downlinking, which is certainly contrary to the Copyright Act. Any such interpretation would directly violate the provisions including the definition section contained under Section 2(dd) and 2(ff) of the Act. We may note that an encrypted form being a facet of cryptography involves secret writing and code. 25.9. The other provisions actually give sufficient protection to the copyright holder as against the licensee which may be the broadcaster having broadcasting reproduction right. The scheme of the Act read with the parliamentary debate and discussion with reference to the specific speech of the Honourable Minister for Information and Broadcasting makes the position very cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as such. For example, a movie to be telecasted is not interfered with and so also the nature. It is nothing but an attempt to stop an unilateral thrust of unwarranted dust along with grain. Suffice it is to state that there is sufficient and ample power for the creation of the impugned Regulations and the Tariff Order under the TRAI Act. 25.13. On considering the submissions and perusal of the documents an admitted fact can be seen. The petitioners though admitted and accepted several suggestions made by the TRAI during the consultation process, nonetheless for the reasons known, have challenged them. In specific terms, they have stated the following facts. * TRAI must undertake a comprehensive review of the interconnect regulations, quality of service regulations etc. * Transparent and non-discriminatory principles across all distribution platforms. *TRAI must regulate price caps for mass genres like entertainment, movies sports Contrary to this, now after price forbearance given in respect of TV channels, the petitioners have performed a spectacular U-turn and are raising frivolous concerns regarding high cost of acquisition of content. *The wholesale price ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 11 of the Act is pari materia to Section 11, which we are concerned with. The scope, provision and object of the enactments are also different. Therefore, on the settled principle of law that a decision is only an authority for what it decides and therefore, cannot be treated like a statute, it is accordingly held that the same has got no application. 25.17. ESPN STAR SPORTS V. GLOBAL BROADCAST NEWS LTD., (2008) (38) PTC 477 (DEL.) Furthermore, under Section 37 of the Act, broadcast reproduction right has been defined as a special right available to every broadcasting organization qua its broadcasts. The term broadcast has been separately defined under Section 2(dd), as a communication to the public. It is thus evident that there could be both copyright and broadcasting reproduction right which could separately co-exist. As an example the copyright of cinematography film being broadcast on a satellite channel vests with the producer of the film whereas the broadcast reproduction right for the same vests with the broadcaster channel itself. The recording of such movie and unauthorized re-telecast by cable operators could thus result in violation of two separate r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the Shri Dr. Abhishek Singhvi, also cannot help the case of the petitioners. They are dealing with a fact situation involving two private parties qua an analogue - non addressable system. Secondly, it does not involve either TRAI or the element of public interest. Thirdly, the broadcast did take place which certainly gives right to a broadcaster. Therefore, this judgment cannot be pressed into service to hold that a BRR will have to be extended even before a broadcast takes place. After all, as discussed in length already, it does take place only when it results in the communication to the public as defined under Section 2 (ff) of the Copyright Act, 1957. Thus, the aforesaid judgments do not help. 25.20. From the above discussions, the contentions raised by the learned Senior Counsel for the petitioners are accordingly rejected. Consequently the issues are answered against the petitioners. 26. LEAD JUDGMENT:- 26.1. The other contentions raised by the learned counsels which have not been dealt already but discussed in the lead judgment are considered now. In the lead judgment, a conclusion has been arrived at on the basis that assortment of channels as bouquet is marke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presence of the public and the absence of any complaint become immaterial and irrelevant. 26.4. The counter affidavit filed was relied upon to a large extent. With respect, the counter affidavit proceeded on the basis that what is regulated is only a carriage. The other paragraphs in the counter affidavit also stated that even if, in a case of content, such a power is available though not relevant for the purpose of this case. Thus, the question that ought to have been answered is the existence of the power for the creation of the impugned Regulations and the Tariff Order. 26.5. It is to be noted that both the Cable Television Networks (Regulation) Act, 1995, and the TRAI Act are coming under entry 31 of List I of VII schedule. Therefore, if once competency is attributable to the Cable Television Networks (Regulation) Act, 1995, it is axiomatic that the same has to be extended to the TRAI Act as well. On the same analogy, a power conferred under the aforesaid Act cannot be imported into the Copyright Act through the amendments made. Merely because the petitioners are affected, the impugned regulation and the amendment would not partake the character of content. While there is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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