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TMI Blog2017 (8) TMI 1496X X X X Extracts X X X X X X X X Extracts X X X X ..... by the organizing body i.e. Board of Control for Cricket in India (hereinafter referred as the "BCCI") through competitive bidding. These signals (live feeds) are transmitted to millions of Indian homes by the Doordarshan; cable operators and Direct-to-Home (DTH) operators. The rights of these entities in respect of the live telecast of major cricketing events in the country and the consequential revenue implications are the core issues arising in these groups of appeals which have been filed in the following circumstances. 3. BCCI is the "approved" national level body holding virtually monopoly rights to organize cricketing events in the country. Grant of telecasting rights of these events is, therefore, a major source of revenue for the BCCI. There is currently in force a Media Rights Agreement by and between Star India Private Ltd. and BCCI effective from April 2012 till March 2018 under which Star India Private Limited [respondent No.4 in the Appeals arising out of Special Leave Petition (Civil) Nos.4574-4575 of 2015] has been granted exclusive rights to telecast cricketing events that take place in the country during the currency of the period of the agreement. 4. Star Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ports channels of the respondents as they are getting the live feed of cricketing events free of cost. The legality and correctness of the aforesaid arrangement is the central issue in the present group of appeals. 6. Not willing to accept the aforesaid perception of Section 3 of the Sports Act and the consequential position, the BCCI and its original assignee one Nimbus Communications Limited had moved the High Court of Delhi by way of Writ Petition (No.7655 of 2007) seeking directions to the Prasar Bharati Broadcasting Corporation and the Union of India to encrypt Doordarshan's Satellite Transportation Feed of live broadcasting signals of cricket matches organized by the BCCI to the Doordarshan Kendras and transmission towers throughout India for subsequent broadcasts on Doordarshan's terrestrial and DTH networks. An appropriate declaratory relief to the effect that no television network, DTH network, Multisystem network or local cable operator can broadcast such events without a licence from the content rights owners/holder was also sought. The said writ petition (No.7655 of 2007) was dismissed by the learned single judge of the High Court primarily on the ground that the matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain, learned Senior Counsels appearing for Star India Private Limited, Dr. Rajeev Dhavan, learned Senior Counsel appearing for Home Cable Network Pvt. Ltd. and Sopan Foundation and Shri Amit Sibal, learned Senior Counsel appearing for the BCCI. 11. At the outset, it would be appropriate to refer to and wherever necessary to extract the relevant statutory provisions under the Prasar Bharati (Broadcasting Corporation of India) Act, 1990 (hereafter referred to as "the Prasar Bharati Act, 1990"), Sports Act, 2007 and Cable Act, 1995 and also to notice the object behind the enactments in question. 12. Under Section 3 of the Prasar Bharati Act, 1990, Prasar Bharati has been established as a Corporation to discharge the functions of erstwhile Akashvani and Doordarshan. Under Section 12 of the Prasar Bharati Act the primary duty of the Corporation is to organize and conduct public broadcasting services to inform, educate and entertain the public and to ensure a balanced development of broadcasting on radio and television. Section 12(2)(e) of the Prasar Bharati Act, 1990 clearly stipulates that Prasar Bharati shall, inter alia, be guided by the objective of "providing adequate coverage to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge channel of the State in which the network of the cable operator is located. (2) The channels referred to in sub-section (1) shall be re-transmitted without any deletion or alteration of any programme transmitted on such channels. (3) Notwithstanding the provisions of sub-section (1), any notification issued by the Central Government or the Prasar Bharti (Broadcasting Corporation of India) in pursuance of the provisions of sub-section (1), prior to the 25th day of October, 2011 shall continue to remain in force till such notifications are rescinded or amended, as the case may be. Prior to its amendment, Section 8 was in the following terms: "8. Compulsory transmission of Doordarshan channels.- (1) Every cable operator shall re-transmit,-- (i) channels operated by or on behalf of Parliament in the manner and name as may be specified by the Central Government by notification in the Official Gazette; (ii) at least two Doordarshan terrestrial channels and one regional language channel of a State in the prime band, in satellite mode on frequencies other than those carrying terrestrial frequencies. (2) The channels referred to in sub-section (1) shall be re-transmitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sporting events of national importance, unless it simultaneously shares the live broadcasting signal, without its advertisements, with the Prasar Bharati to enable them to re-transmit the same on its terrestrial networks and Direct-to-Home networks in such manner and on such terms and conditions as may be specified. (2) The terms and conditions under sub-section (1) shall also provide that the advertisement revenue sharing between the content rights owner or holder and the Prasar Bharati shall be in the ratio of not less than 75:25 in case of television coverage and 50:50 in case of radio coverage. (3) The Central Government may specify a percentage of the revenue received by the Prasar Bharati under sub-section (2), which shall be utilised by the Prasar Bharati for broadcasting other sporting events." (Emphasis supplied) 18. At this stage, we may also take note of the following definitions contained in Section 2 of the Sports Act, 2007: "Section 2-Definitions 1) In this Act, unless the context otherwise requires,-- (a)................................................................................. xxx (c) "broadcasting service" means assembling, programming and pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut its advertisements, with the Prasar Bharati to enable them to re-transmit the same on its terrestrial networks and Direct-to-Home networks in such manner and on such terms and conditions as may be specified. 20. On the other hand, Section 8(1) of the Cable Act, 1995 carries a legislative mandate that every cable television operator is required to carry, on its network, such Doordarshan channels or channels operated by or on behalf of the Parliament, as may be notified by the Central Government in the Official Gazette. What is the true legal effect emerging from a conjoint operation of the two provisions, noticed above, is the moot question. 21. A narration, though very briefly, of the arguments advanced may now be made. As the High Court, in the order under challenge, has recorded the submissions advanced on behalf of the rival parties in extenso and as the arguments advanced before us are essentially in reiteration a brief recapitulation of what was argued before us will suffice. 22. Shri Mukul Rohatgi, learned Attorney General (as he then was) who has argued the case of the appellant (Union of India) in the main [Civil Appeals arising out of Special Leave Petition (Civil) N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the direction of providing access to the masses which clearly suggests that the provisions of the two enactments operate harmoniously in their respective fields without impacting each other. 23. Dr. Rajeev Dhavan, learned Senior Counsel appearing for the Home Cable Network Private Limited and Sopan Foundation had also argued the case of the appellant in extenso and, particularly, on the question of infringement of the provisions of Article 19(1) (a) of the Constitution of India, an aspect to which we will advert to a little later. 24. On behalf of the respondents, separate arguments have been made by S/Shri Harish Salve, P. Chidambaram, Dr. A.M. Singhvi, Sudhir Chandra, Gopal Jain, learned Senior Counsels appearing for the Star India Private Limited and Shri Amit Sibal, learned Senior Counsel appearing for the BCCI. It is contended that the rights of the respondent Nos. 3 and 4 (ESPN Software Pvt. Ltd. and Star India Pvt. Ltd.) under the Media Rights Agreement will be seriously infringed in the present case if the view taken by the High Court is to be left undisturbed. Though such rights may seemingly come under Section 37 (Chapter VII) of the Copyright Act, 1957, it is argue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to contend that the right under Article 19(1)(a) of the Constitution would extend to receipt of information also. While the sweep of Article 19(1)(a) is certainly expansive to include receipt of information also, it is in the context of above argument of Shri Sibal that we may now recapitulate the short contention put forward with great force by Dr. Rajeev Dhavan, learned Senior Counsel. The same is to the effect that in the present case it is not the contention of BCCI that the provisions of Article 19(1)(g) of the Constitution have been violated. Insofar as the provisions of Article 19(1)(a) of the Constitution is concerned, Dr. Dhavan has contended that, at best, the present is a case where the slice of the cake becomes a little smaller; but that by no means would attract Article 19(1)(a) of the Constitution, it is argued. We agree with Dr.Dhavan. 26. Proceeding further, we deem it necessary to clarify that for the present case it is not necessary and, therefore, we do not intend to go into the question raised by the parties with regard to the nature of the rights conferred by Section 37 of the Copyright Act, 1957 namely, whether the live telecast of a cricket match amounts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t provision to further the objective behind the enactment of the Sports Act, 2007. Though much argument has been advanced as to whether Section 3 of the Sports Act, 2007 is expropriatory in nature, we have no hesitation in holding the said provision of the Act to be of such a nature inasmuch as it curtails or abridges the rights of a content rights owner or holder and television or radio broadcasting service provider, as may be. Sharing of revenue between the content rights owner or holder and the Prasar Bharati envisaged by Section 3(2) of the Sports Act, 2007 would hardly redeem the situation to take the Sports Act, 2007 out of the category of expropriatory legislation. Section 3 of the Sports Act, 2007, therefore, has to be interpreted very strictly. Not only we do not find in the provisions of Section 3 of the Sports Act, 2007 any recognition of the requirement stipulated in Section 8 of the Cable Act, 1995, the plain language of the said provision i.e. Section 3 of the Sports Act, 2007 makes it clear that the obligation to share cast on the content rights owner or holder, etc. with Prasar Bharati is to enable the Prasar Bharati to transmit the same on "its terrestrial and DTH ..... X X X X Extracts X X X X X X X X Extracts X X X X
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