TaxTMI 
TaxTMI 
2018 (5) TMI 1762
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...., 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, Mr.Jayant K.Mehta Mr.B. Kishore for M/s Dua Associates, Mr. Krishna Srinivas for M/s S. Ramasubramanian Associates COMMON ORDER A Division in the Bench created this reference. Ironically, answering the reference would create a decision of the Division Bench. 2. If patience is considered as a virtue, it could be stated to have well served, upon hearing the submissions of eloquence of the learned counsels representing competing interest. 3.Heard the learned Senior Counsels and learned counsel appearing for the petitioners, respondents and intervenors and perused the documents, pleadings and written arguments. 4. SCOPE OF REFERENCE:- 4.1. Before venturing into the case in detail, it wo....
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....rred 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 Act, 1997, The Copyright Act, 1957 and the Tamil Nadu Cable Television Networks (Regulation) Act, 1995, and rules were indeed considered, though to a limited extent. While it is a case of the petitioners that the regulatory authority, hereinafter referred to as TRAI, through the impugned Regulations and Tariff Order, regulates the "content", no such power is available under the TRAI Act, which jurisdiction is occupied by the Copyright Act, 1957. In the differing judgment, the Hon'ble Chief Justice has clearly stated in paragraph 3 of the order that the question raised in the writ petitions is to the jurisdiction of TRAI on the availability of the power under the TRAI Act to issue the impugned Re....
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....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 down as not in conformity with the parent act, i.e., TRAI Act. 8(b) With regard to the other two impugned provisions, as we were given to understand in the course of the hearing that they are relevant and necessary for some other clauses also other than those which have been put in issue in the instant writ petitions, they deserve to be saved to the extent they survive and serve the purpose other than serving implementation or any other purpose of the provisions which we have struck down. Therefore, the other impugned provisions, i.e., clause 11(2) in the said Regulations as also clause 4(2) in the said tariff order will continue to be in the books, but cannot be pressed into service for anyth....
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....f 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 general public being the subscriber. The broadcasting would involve both uplinking and downlinking. It has got three principal actors in its exercise viz., broadcasters-petitioners, distribution platform operators (multi system operators, etc.,) and the consumers, who are otherwise called customers/subscribers. There is also a fourth fringe player whose limited role stands in between the distributor platform operator and the subscriber called local cable TV operator. 5.4. As the telecommunication service in general and broadcasting service, in particular, involves a regulatory regime apart being governed by a sector specific Act, the process of uplinking and downlinking by a broadc....
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....ts 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 signals are said to have been communicated to the end users/subscribers when they reach the set top box. This set top box will be fixed at the place of the subscriber. Therefore, the process involves a chain of events before a signal reaches the subscriber. 5.9. Atleast from the year 2004 onwards, the process of regulating the broadcasting services under TRAI Act, leading to the present impugned Regulations and the Tariff Order, started happening. 5.10. Accordingly, by the Tariff Order dated 01.10.2004, the ceiling price of television channel was fixed. By the second amendment Order dated 01.12.2004, 7% increase on the television channel was made. Similarly, under the third tariff ....
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....he 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 Act, to make recommendation regarding -- (a) the terms and conditions on which the 'addressable systems' shall be provided to customers Explanation--For the purposes of this clause, 'addressable system' with its grammatical variation, means an electronic device or more than one electronic devices put in an integrated system through which signals of cable television network can be sent in encrypted or unencrypted form, which can be decoded by the device or devices at the premises of the subscriber within the limits of authorisation made, on the choice and request of such subscriber, by the cable operator for that purpose to the subscriber. (b....
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....he 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 manner keeping in mind the overall interest of all inclusive of the general public. Thus, through this process, the petitioners are made to make their offers as a-la-carte and bouquet channels. They are asked not to mix the pay channels and free to air channels with each other. Therefore, the offer should either be a bouquet of free to air channels or pay channels. Similarly, they are not supposed to offer in a bouquet, both high definition and standard definition formats of the same channels. A monetary cap was fixed on the bouquet of pay channels. The extent of discount offer is also restricted to encourage the customer to effectively exer....
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....f 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 statute through "literal" to "Hyden's Golden Rule" has gone through a circle. What is being applied by the Courts today is on the reasonable, creative and Fair Construction Principle. A liberal interpretation is required more in a social, welfare legislation with the objective in mind. 6.3. LORD DENNING: "A Judge should ask himself the question (how). If the makers of the Act had themselves come across this rule in the texture of it, how would they have straightened it out? He must do so as they would have done. A Judge must not alter the material on which (the Act) it is woven but he can and should iron out the creases." 6....
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....hedule 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) 6 Supreme Court Cases 12). "8.........The interpretation of the statute would apply to the interpretation of the entries subject to reservation that their application is of necessity conditioned by the subject-matter of the enactment itself. It should be remembered that the problem before us is to construe a word appearing in Entry 45 which is a head of legislative power. It cannot be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended to it. It is, therefore, clear that in co....
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....e 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 not try to give meaning on the theory of what the law should be, but it must so look upon a Constitution that it is a living and organic thing and must adapt itself to the changing situations and pattern in which it has to be interpreted. It has also to be borne in mind that where division of powers and jurisdiction in a federal Constitution is the scheme, it is desirable to read the Constitution in harmonious way. It is also necessary that in deciding whether any particular enactment is within the purview of one legislature or the other, it is the pith and substance of the legislation in questi....
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....e 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 particular manner. But the legislation must be subject to the limitations prescribed under the Constitution. 20. When the vires of an enactment is challenged, it is very difficult to ascertain the limits of the legislative power. Therefore, the controversy must be resolved as far as possible, in favour of the legislative body putting the most liberal construction upon the relevant legislative entry so that it may have the widest amplitude. The court is required to look at the substance of the legislation. It is an equally settled law that in order to determine whether a tax statu....
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....e 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 CABLE TECHNOLOGIES LIMITED ((2018) 2 Supreme Court Cases 674), the Supreme Court has considered the principle governing interpretation through the following paragraphs. "27. Equally, Dr. Singhvi's argument that the Code leads to very drastic action being taken once an application for insolvency is filed and admitted and that, therefore, all conditions precedent must be strictly construed is also not in sync with the recent trend of authorities as has been noticed by a concurring judgment in Ms. Eera through Dr. Manjula Krippendorf v. State (Govt. of NCT of Delhi) & ....
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....agraphs 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 people. Even if the literal interpretation results in hardship or inconvenience, it has to be followed (see G.P. Singh's Principles of Statutory Interpretations, 9th Edn., pp. 45-49). Hence departure from the literal rule should only be done in very rare cases, and ordinarily there should be judicial restraint in this connection." 30. Regard being had to the modern trend of authorities referred to in the concurring judgment in Ms. Eera through Dr. Manjula Krippendorf (supra), we need not be afraid of each Judge having a fre....
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....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 section requires it to be sent to the Magistrate. It is clear that for the expression "Magistrate" in Section 157, so far as the Act is concerned, it is required to be read as "Special Court" and likewise in respect of other provisions of the Code. If the expression "Special Court" is read for the expression "Magistrate", everything will fall in line. This harmonious construction of the provisions of the Act and the Code makes the Act work. That is what is required by principles of statutory interpretation. Section 9(1) of t....
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....istent 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 Tax Act, 1961 and the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 harmoniously in the following manner: "98. In view of the above, we are not impressed by the contention of the petitioners that the two enactments are contradictory with each other. A harmonious reading of the two enactments would clearly suggest that whereas enrolment of Aadhaar is voluntary when it comes to taking benefits of various welfare schemes even if it is presumed ....
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....e 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 that a notice sent on behalf of an operational creditor by a lawyer would be in order." 7.5. KSL AND INDUSTRIES LIMITED VS. ARIHANT THREADS LIMITED AND OTHERS ((2015) 1 Supreme Court Cases 166). "This Court in solidaire case approved the observations of the Special Court to the effect that if the legislature confers a non-obstante clause on a later enactment, it means that the legislature intends that the later enactment should prevail. Further, it i....
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.... 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 each case is one of the construction and comparison of the two statutes. The Court leans against implying a repeal, "unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time, a repeal will not be implied, or that there is a necessary inconsistency in the two Acts standing together." (See Craies on Statute Law, Seventh Edition, page 366, with reference to Re: Berrey [1936] Ch. 274 ). ....
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....e 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 DEVELOPMENT CORPORATION LIMITED AND ANOTHER ((2013) 5 Supreme Court Cases 470). " VI. "As if" - Meaning of 26. The expression "as if", is used to make one applicable in respect of the other. The words "as if" create a legal fiction. By it, when a person is "deemed to be" something, the only meaning possible is that, while in reality he is not that something, but for the purposes of the Act of legislature he i....
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....ettled 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 the burden is upon him who attacks it to show that it is invalid. It is also well recognised that a subordinate legislation can be challenged under any of the following grounds: (a) Lack of legislative competence to make the subordinate legislation. (b) Violation of fundamental rights guaranteed under the Constitution of India. (c) Violation of any....
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.... 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 to the extracted paragraph from Dwarka Prasad v. Dwarka Das Saraf : "We may mention in fairness to Counsel that the following, among other decisions, were cited at the Bar bearing on the uses of provisos in statutes: C.I.T. v. Indo-Mercantile Bank Ltd. 1959 Supp. 2 SCR 256; Ram Narain Sons Ltd. v. Asstt....
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....terpretation 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 the words of wider import is doubtful; but, where the object of the legislature in using wider words is clear and free of ambiguity, the rule of construction in question cannot be pressed into service. 72. In Bank of India v. Vijay Transport, (1988 Supp, SCC 47 = AIR 1988 SC 1....
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.... 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, Interpretation of Statutes (11th Edn., 1962) 321, means that when two or more words which are susceptible of analogous meaning are coupled together, they are understood to be used in their cognate sense. They take as it were their....
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....tion 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 individual. Elucidating the same, it has been propounded that defamation of a private person by another person cannot be regarded as a 'crime' under the constitutional framework and hence, what is permissibl....
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....ence. (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 being through the creation of a sector specific enactment viz., The Telecom Regulatory Authority of India Act, 1997 (Act 24 of 1997). It can be said, this Act is a creation of a....
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....he 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, misinformation and non-information all equally create an uninformed citizenry which makes democracy a farce when medium of information is monopolised either by ....
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........... 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 several Constitutional Courts including that of the United States of America. 4. The Indian Te....
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....nd 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 sought to be dealt with. A restrictive and rigid meaning shall not be given to the word ....
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....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 much legal as political, social or economic consideration and that ....
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....age 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 that the word "regulation" cannot ha....
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....ary 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 fixation of the rate of royalt....
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....K 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. Suffic....
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....997. 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 d....
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.... that the challenge 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 A....
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....alify the extent 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 speci....
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....o the context of 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 licen....
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....ity, and hence should be struck down. What 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 fo....
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....der sub-section (1)" specifies various topics on which 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....
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....ards. Thus, the manner of packaging and offering coupled with the rates cut is regulated 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 RE....
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....levision channel" means a channel, which has been granted permission for downlinking by the Central Government under the policy guidelines 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. There....
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....d that at present the uptake of channels on a-la-carte basis is negligible as compared to the bouquet subscriptions. Analysis yields that 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 th....
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....s on a-la-carte basis to correct such situations, if it may come. 66. Some stakeholders are of the opinion that limiting the discount to subscribers while 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....
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....ill keep a watch on the developments in the market and may review the maximum permissible discount while offering a bouquet, in a time period of about two years. 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 Rs. 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 Rs. 19/- cannot become part of any bouquet. The amount of Rs. 19/- has been prescribed keeping ....
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....her simultaneously or at places and times chosen individually, regardless of whether any member of the public actually sees, hears or otherwise enjoys the work or performance 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 l....
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....sure group for different reasons. In INDIAN PERFORMING RIGHT SOCIETY VS. EASTERN INDIA MOTION PICTURES ASSOCIATION (1977 SCR (3) 206), while construing Section 17(c) of the Copyright Act, the Apex Court 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 film....
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.... royalty factor. 20.9. Chapter VI of the Copyright Act, 1957 concerns itself with licences. Under Section 30, a licence may be granted by the owner in favour of the licensee. Section 31-D specifically mentions 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....
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....e special right known as "broadcast reproduction right". What is important to be noted here is that such a right is in respect of the "broadcast". Therefore, the reproduction right would emanate only in respect of a broadcast. Until and unless the broadcast does 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....
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.... other forum. But certainly that cannot be a factor to interpret the provisions otherwise. Therefore, on an analysis of Section 37, it is imperative that a broadcast should take place by reaching public either actual or available. This thinking is also strengthened 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 Ac....
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....ations, the interpretation which validates rather than one which may invalidate a provision applies. 35. There might be some conflict between the rules and the provisions of the Act. There may also be a conflict sometimes between two Sections to be found in the same Act. In such circumstances, 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 O....
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....egime under some other statute would be ultra vires19." Suffice it is to state that the petitioners are the parties to the aforesaid decision. 20.24. COGECO CABLE INC., ROGERS COMMUNICATIONS INC., Vs. BELL MEDIA INC. (FORMERLY GLOBEMEDIA INC.) (2012 SCC 68): An interesting case dealt with by the Supreme Court 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....
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.... the carriage of Canadian programming services and, in particular, to the carriage of local Canadian stations, .............................................................................. (iii) should, where programming services are supplied to them by broadcasting undertakings pursuant to contractual arrangements, provide reasonable terms for the carriage, packaging and 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); ....
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....y the programming undertakings; (i)requiring licensees to submit to the Commission such information regarding their programs and financial affairs or otherwise relating to the conduct and management of their affairs as the regulations may specify; (j)respecting the audit or examination of the records and books of account of licensees by the Commission or persons acting on behalf of the Commission; and (k)respecting such other matters as it deems necessary for the furtherance of its objects; 20.30. By a 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 sub....
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.... may make regulations (a)defining "local signal" and "distant signal" for the purposes of subsection (2); and (b)prescribing conditions for the purposes of paragraph (2)(3), and specifying whether any such condition applies to all retransmitters or only to a class of retransmitter. 20.32. On this, it was held that the right which is otherwise enured in favour of the retransmitter/distributor cannot be taken away through a regulation by CRTC under the Broadcasting Act. Both these reasons were not agreed upon in the dissenting decision. 20.33. Though in the first blush it might appear as if the same rationale may well be applied to the 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....
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....der Section 2(e) of the TRAI Act comes into being. Section 4 is the sole provision, which enables the Central Government to part with this exclusive privilege to a third party to deal with the work under telegraph or telecommunication service. This aspect has been dealt with in extenso in SECRETARY OF MINISTRY OF INFORMATION AND BROADCASTING VS. CRICKET ASSOCIATION OF BENGAL ((1995) 2 Supreme Court Cases 161) referred supra. Section 4 not only govern a broadcasting organisation, but also a DTH operator being the distributor. It is to be noted that rules have been framed for the usage of airwaves frequencies and spectrum. Suffice it is to state that no more 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 ....
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....ctive scope of Telegraph Act does not hold water in the teeth of the specific provisions contained in Section 6A which provides sufficient authority to fix the rates, messages and fix other conditions. 21.4. Both these enactments viz., TRAI Act, 1997 and the Indian Telegraph Act,1885 are to be read together and even dehors. 22. CABLE TV NETWORKS (REGULATION) ACT, 1995 22.1. This Act was also introduced using power conferred by the constitution along with the field of legislation as in the case of the TRAI Act, 1997. It was meant to control and regulate Cable Television Network. Thus, it should be kept in mind the specific object of this enactment. The definition 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 ad....
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....gly, confusion was likely to be created in defining retail price as well as wholesale price of a channel in a notified area. Thus, it was decided to extend the tariff dispensation in the then tariff order to the cable services in a conditional access system notified area(cs). This was dealt with in the explanatory memorandum appended to the tariff order. The learned counsel for TRAI furnished the communications leading to the amendment to the Court. Objections have been raised to the effect that they were not accepted even during the earlier hearing. Be that as it may, there is nothing to contradict the conclusion arrived at in the explanatory memorandum leading to the rationale behind 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 addressab....
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....itioners seek, for the aforesaid reason. It also cannot be construed to abdicate the power to the copyright Act in pursuant to its subsequent amendment. There is no comparison whatsoever between the two enactments, which do not have the remotest connection or overlapping in their field of operation. This aspect has also been taken note of by the Tribunal in M/S NOIDA SOFTWARE TECHNOLOGY PARK LTD., VS. M/S MEDIA PRO ENTERPRISE INDIA PVT LTD., AND OTHERS (Petition No.295(C) of 2014 dated 07.12.2017). 22.4. It is pertinent to note that the petitioner was also a party before the aforesaid proceedings. In fact, in the said decision, the earlier decision of the Division Bench of Delhi High Court in the writ 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 a....
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....d, first we have to note that the prescribed interconnect agreement comes into play only after the parties fail to reach an agreement on their own for which they have complete freedom. Ten days' time has been allowed to parties to negotiate. If they fail to arrive at an agreement within ten days, the prescribed agreement has to be entered into. The appellants argued that this period of 10 days is too short. We need not go into whether this period is short or whether it is sufficient. Parties may approach the TRAI for extension of the period. Secondly, Rule 10(4) of the CTN Rules, 1994 requires prescription of a standard interconnect agreement by the Authority which the broadcasters and the MSOs have to enter into in 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, nobo....
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....f services of transmission, method/means of transmission and technology of transmission. Thus, it is restricted to a manner in which the service is made. The principle of noscitur a sociis has to be applied to understand Section 2(1)(k). Thus, the meaning which can otherwise be given to a telecommunication service has to be imported and adopted for the broadcasting service also. Section 11(1)(b), (c) and (e) do not confer any power to those impugned proceedings. Section 11(2) merely deals with fields of operation. 23.3. Regulation of the content, price and packaging is governed by the Copyright Act, 1957. Section 2 (dd) of the Copyright Act read with 2 (ff) would only mean either an uplinking or downlinking. A deeming 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 aforesai....
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....ct is rather wide and exhaustive. 24.2. The other enactments are to be seen as assisting the TRAI Act excluding the copyright which deals with a different aspect altogether. There is no right recognised under the Copyright Act in favour of the TV Channel. Rule 10 of the Cable Television Networks (Regulation) Act, 1995, has been wrongly construed. In any case, the power conferred cannot be transported through the amendment made to the Copyright Act, 1957. In the lead judgment, it has been proceeded on the wrong factual premise that bouquets are market driven. They are nothing but creation of broadcasters. The TRAI Act deals with different actors with specific emphasis on public interest. Merely because the petitioners are affected, it cannot 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 ....
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............" 25.2. The jurisdiction of the enactments have already been dealt with in extenso. Suffice it is to state that TRAI Act involves regulation of airwaves and frequencies being public properties, touches upon various stakeholders with primacy to the public interest. To put it differently, the general public is the king, being the subscriber whose interest should be guarded and protected under the Act as a prime factor. TRAI in thus, obligated 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. On the contrary, the Copyright Act deals with a di....
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....bring a broadcaster within the fold of a service provider. The petitioners themselves claimed and raised disputes as service providers. A finding was also rendered by the Court which reached finality. Thus, as a natural sequitor, the Regulations and Tariff Order would ipso facto apply to the petitioners' case. 25.7. The other enactments certainly strengthen the hands of the TRAI. Suffice it is to state that these enactments viz., Indian Telegraph Act, 1885, except the Cable Television Networks (Regulation) Act, 1995, have nothing to do with the Copyright Act, 1957. Rule 10 of the Cable Television Networks (Regulation) Rules, 1994, as it stands today strengthens the authority to deal with the difficulties faced in implementing a uniform system, including the notified areas. 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....
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....s. It is also to be seen under the TRAI Act from the point of view of the end user. 25.12. Since the learned counsel appearing for the petitioners repeatedly insisted to go into the said issue, it is reluctantly touched upon. A content has to be seen in the programme and not the channel. Merely identifying or categorising a channel either in a group or stand alone would not amount to interference in content. What is involved here is the reach of a particular channel in a specific way or mode, giving several options to choose qua a subscriber. A content in a programme is different from that of the channel. There is absolutely nothing to hold that the content in a broadcast or a programme is interfered with. Similarly, the content of a channel is absolutely preserved and taken 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 a....
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....NATURAL GAS REGULATORY BOARD V. INDRAPRASTHA GAS LIMITED AND OTHERS (2015) 9 Supreme Court Cases, 209), the issue was with reference to the determination of network tariff and compression charges. A challenge was laid on the legislative competency. The Apex Court while considering the relevant provision viz., Sections 21 and 22 read with Section 11, which speaks of power and functions of the Board, held that there is no legislative intent apart from lack of jurisdiction. Accordingly, it was held that the operative words to Section 22 which dealt with only transportation tariff is subject to Section 11, which does not provide such a power to the Petroleum and Natural Gas Regulatory Board. Clearly the facts herein are totally different. There is no opening words as available in Section 22 of the Petroleum and Natural Gas Regulatory Board, 1956 nor 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 ....
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....fringement of Broadcasting Reproduction Right and that application of Section 61 is limited to the cases where an exclusive licensee of a copyright institutes a suit or proceeding for infringement of copyright." 25.18. The aforesaid paragraph does not recognise a separate right of television channel under Section 37 of the Copyright Act. On the contrary, it clearly states that the copyright and broadcasting reproduction right would separately co-exist. The Court was merely dealing with the scope and extent of the power under Section 37. In other words, there is no express recognition of a right qua a television channel as against a broadcaster. Such a right is obviously confined to the broadcast made. At the cost of repetition, it has to be reiterated that Section 37 is broadcast centric and not television. 25.19. The three decisions relied upon 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....
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....usiness methodology but not helping the cause of the general public and the new entrants. Therefore, the premise on which the entire matter proceeded with due respect is not correct. 26.3. The decisions referred to supra would clearly show that the so called conflicting enactments stand apart from each other. They neither attract collision nor incidental overlapping. The scope of the provisions of the TRAI Act relatable to the object has been dealt with extensively by the Courts already. This cannot be restricted to the so called carriage, which has got no factual or legal backing. It has also to be noted that the impugned regulations and the tariff order can never be introduced under the Copyright Act. There is no element of public interest therein. When once it is conceded that it is the duty of the TRAI to take care of the public interest, the 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....