Sopan Foundation vs Board Of Control For Cricket In India

2. The precise origin of the game of

cricket, though largely unknown, has been

traced, at least, to late 15th Century England.

With the expansion of British Empire the game

of cricket travelled to different parts of the

globe including India. Today, if there has to

be a national game in India, cricket would

certainly be a front-runner. The packed

stands in all cricketing venues is certainly

not the full picture. Live telecast of all

major cricketing events, domestic and

international, is beamed to millions of homes

in the country. Telecasting/Broadcasting

rights are leased out by the organizing body

2 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

3 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 India Private Limited, in turn,

has engaged ESPN Software Pvt. Ltd. [respondent

No.3 in the Appeals arising out of Special

Leave Petition (Civil) Nos.4574-4575 of 2015]

for distribution, inter alia, of the telecast

of all cricketing events covered by the Media

Rights Agreement.

5. Under Section 3 of the Sports

Broadcasting Signals (Mandatory Sharing with

Prasar Bharati) Act, 2007 [hereinafter referred

4 to as “the Sports Act, 2007”], the respondent

Nos. 3 and 4 are obliged to share the live

broadcasting signals of sporting events of

national importance with the Prasar Bharati

(which owns the erstwhile Doordarshan’s

channels/networks) for retransmission of the

same through its terrestrial and Direct-to-Home

networks. The Respondents have no objection

sharing the live feed to the above extent. In

fact they have not challenged the

vires/validity of Section 3 of the Sports Act,

2007. What is being objected to and,

therefore, challenged in the writ proceedings

leading to the present appeals is the

retelecast of the signals shared by the

Respondents 3 and 4 with Prasar Bharati under

Section 3 of the Sports Act, 2007 by Cable

Operators to millions of other viewers, who may

not necessarily be linked to the Prasar

Bharati’s terrestrial and DTH networks but are

5 subscribers of such cable operators or other

DTH service providers. Such retelecast of

the signals received by the Prasar Bharati

under Section 3 of the Sports Act, 2007 by the

Cable Operators flow from the operation of

Section 8 of the Cable Television Networks

(Regulation) Act, 1995 (hereinafter referred to

as “the Cable Act, 1995”) which provision has

been perceived to require Cable Operators to

mandatorily carry in their cable service such

Doordarshan channels that may be notified by

the Central Government under the said Section 8

of the Cable Act. As DD 1(National) is one of

the channels mandatorily required to be

carried by the Cable Operators (due to its

maximum reach) and the live telecast of

cricketing events which the content rights

owners/holder is obliged to share with Prasar

Bharati under Section 3 of the Sports Act, 2007

is retransmitted through the said Doordarshan

6 channel i.e. DD 1(National) the cricketing

events are telecast to millions of viewers by

Cable Operators who otherwise charge the

subscribers. By virtue of the aforesaid

arrangement Cable Operators do not have to

subscribe to the specific sports channels of

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

7 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 matter relates to policy and, therefore, is

beyond judicial reach and scrutiny. Aggrieved

LPA No.1327 of 2007 was filed before the High

Court.

7. Writ Petition (No.8458 of 2007) was

8 also filed initially by BCCI and its erstwhile

assignee Nimbus for striking down Section 3 of

the Sports Act, 2007 insofar as it relates to

cricket test matches and also striking down the

notification dated 13th September, 2000 issued

by the Central Government notifying DD1

(National) channel and DD (News) channel as

mandatory channels to be carried compulsorily

by the Cable Operators. In the same writ

petition (No.8458 of 2007) the notifications

dated 3rd July, 2007 and 19th October, 2007

notifying the sporting events mentioned therein

in respect of cricket to be of national

importance were also challenged. Also

challenged is the order of the Government of

India dated 29.05.2007 by which Clause 7.9 was

added to the Licence Agreement of DTH Services.

Clause 7.9 is in the following terms:

“The licencee shall carry or include in his DTH services the TV Channels which have been notified for mandatory

9 and compulsory carriage as per the provisions of Section 8 of the Cable Television Networks (Regulation) Act, 1995 as amended, failing which the licensor shall be at liberty to take action as per clause 20.1 of this Agreement.”

8. Subsequently, ESPN Software India Pvt.

Ltd. and Star India Pvt. Ltd. had been

impleaded as petitioner Nos. 3 and 4 in the

aforesaid writ petitions in view of Media

Rights Agreement effective from April 2012 upto

March 2018, as referred to above.

9. The aforesaid appeal (LPA No.1327 of

2007) and Writ Petition (No.8458 of 2007) were

allowed by the Division Bench by holding that

on an interpretation of the provisions of

Section 3 of the Sports Act, 2007 and Section 8

of the Cable Act, 1995 the signals received by

Prasar Bharati from the respondents should not

10 be placed in the designated Doordarshan

channels which are to be compulsorily carried

by the Cable Operators under Section 8 of the

Cable Act, 1995. Aggrieved the present appeals

have been filed by the Union of India, Prasar

Bharati, Home Cable Network Private Limited and

Sopan Foundation.

10. We have heard Shri Mukul Rohatgi,

learned Attorney General (as he then was)

appearing for the Union of India and Prasar

Bharati, S/Shri Harish Salve, P. Chidambaram,

Sanjay Hegde, A.M. Singhvi, Sudhir Chandra,

Gopal Jain, 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

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

12 that Prasar Bharati shall, inter alia, be

guided by the objective of “providing adequate

coverage to sports and games so as to encourage

healthy competition and the spirit of

sportsmanship.” It, therefore, appears that

one of the main objectives behind the

incorporation of Prasar Bharati is to provide

an adequate coverage to sports and games for

the purpose(s) already noticed.

13. Specific notice would be required to

be taken, in the light of the contentions

advanced, which will be noticed later, of the

provisions contained in Section 12(3)(c) of the

Prasar Bharati Act, 1990 which enables the

Prasar Bharati “to negotiate for purchase of,

or otherwise acquire, programmes and rights or

privileges in respect of sports and other

events, films, serials, occasions, meetings,

functions or incidents of public interest for

13 broadcasting and to establish procedures for

the allocation of such programmes, rights or

privileges to the services.”

14. We may now turn to the provisions of

the Cable Act, 1995. The object of the Cable

Act, 1995 as indicated in the preamble is to

regulate the operation of cable television

networks in the country and for matters

connected therewith or incidental thereto.

15. Section 3 of the Cable Act, 1995

stipulates the necessity of registration as a

cable operator in order to operate a cable

television network. Section 2(aiii) defines

“cable operator” in the following terms.

“2(aiii) "cable operator" means any person who provides cable service through a cable television network or otherwise controls or is responsible for the management and operation of a cable television network and fulfils the prescribed eligibility criteria and

14 conditions;”

16. Section 8 of the Cable Act, 1995 as

amended by Act No.21 of 2011 with retrospective

effect from 25th October, 2011 is in the

following terms:

“8. Compulsory transmission of Certain channels.-(1) The Central Government may, by notification in the Official Gazette, specify the names of Doordarshan channels or the channels operated by or on behalf of Parliament, to be mandatorily carried by the cable operators in their cable service and the manner of reception and re-transmission of such channels:

Provided that in areas where digital addressable system has not been introduced in accordance with the provisions of sub-section (1) of section 4A, the notification as regards the prime band is concerned shall be limited to the carriage of two Doordarshan terrestrial channels and one regional language 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

15 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

16 terrestrial frequencies.

(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) The Prasar Bharati (Broadcasting Corporation of India) established under sub-section (1) of section 3 of

the Prasar Bharati (Broadcasting Corporation of India) Act, 1990 (25 of 1990) may, by notification in the Official Gazette, specify the number and name of every Doordarshan channel to be re-transmitted by cable operators in their cable service and the manner of reception and re-transmission of such channels"

Section 8 of the Cable Act, 1995

permits the Central Government to specify the

names of Doordarshan channels or the channels

operated by or on behalf of the Parliament

which are required to be mandatorily carried by

the Cable Operators. As already noticed, by

notification dated 13th September, 2000, DD1

(National) channel and DD (News) channel and

17 one regional channel have been notified as

mandatorily required to be carried by the Cable

Operators. There are certain subsequent

notifications issued by the Ministry of

Information and Broadcasting, Government of

India under Section 8(1) of the Cable Act,

1995, the subsisting one being dated 5th

September, 2013. No specific notice of the

aforesaid notification would be required to be

taken as in substance and in law the position

is no different.

17. The next set of statutory provisions

which would be required to be noticed, at this

stage, are those to be found in the Sports Act,

2007. The preamble to the Sports Act, 2007

makes it clear that it has been enacted “to

provide access to the largest number of

listeners and viewers, on a free to air basis,

of sporting events of national importance

18 through mandatory sharing of sports

broadcasting signals with Prasar Bharati and

for matters connected therewith or incidental

thereto. Section 3 of the Sports Act, 2007,

on the scope and width of which provision the

core arguments have been advanced so as to

enable the Court to determine the true scope

and purport thereof in the light of the

provisions of Section 8(1) of the Cable Act,

1995 and the notifications issued thereunder is

in the following terms:

“3. Mandatory sharing of certain sports broadcasting signals.-(1) No content rights owner or holder and no television or radio broadcasting service provider shall carry a live television broadcast on any cable or Direct-to-Home network or radio commentary broadcast in India of 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

19 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 con-

text otherwise requires,--

(a)………………………………………………………………………

xxx

20

(c) "broadcasting service" means assembling, programming and placing communication content in electronic form on the electro-

magnetic waves on specified fre- quencies and transmitting it continuously through broadcast- ing network or networks so as to enable all or any of the multi-

ple users to access it by con-

necting their receiver devices to their respective broadcasting networks and includes the con-

tent broadcasting services and the broadcasting network ser-

vices;

(d) "broadcasting networks ser- vice" means a service, which provides a network of infra-

structure of cables or transmit- ting devices for carrying broad- casting content in electronic form on specified frequencies by means of guided or unguided electromagnetic waves to multi- ple users, and includes the man-

agement and operation of any of the following:

(i) Teleport/Hub/Earth Station,

(ii) Direct-to-Home (DTH) Broad-

casting Network,

(iii) Multi-system Cable Televi- sion Network,

21

(iv) Local Cable Television Net- work,

(v) Satellite Radio Broadcasting Network,

(vi) any other network service as may be prescribed by the Cen-

tral Government;

xxx

(f) "cable television network"

means any system consisting of closed transmission paths and associated signal generation, control and distribution equip- ment, designed to receive and re-transmit television channels or programmes for reception by multiple subscribers;

xxx

(j) "Direct-to-Home (DTH) broadcasting service" means a service for multi-channel dis-

tribution of programmes direct to a subscriber's premises with- out passing through an interme-

diary such as a cable operator by uplinking to a satellite sys-

tem;

xxx

(s) "sporting events of na-

tional importance" means such

22 national or international sport-

ing events, held in India or abroad, as may be notified by the Central Government in the Official Gazette to be of na-

tional importance;

xxx

(t) "terrestrial television ser- vice" means a television broad-

casting service provided over the air by using a land-based transmitter and directly re-

ceived through receiver sets by the public;”

19. From the above, it can be noticed that

under Section 3 of the Sports Act, 2007, no

content rights owner or holder and no

television or radio broadcasting service

provider can carry a live television broadcast

on any cable or DTH network or radio commentary

broadcast in India, of sporting events of

national importance unless it simultaneously

shares the live broadcasting signal, without

its advertisements, with the Prasar Bharati to

enable them to re-transmit the same on its

23 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

24 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) Nos.4574-4575 of 2015]

has submitted that the object behind the

creation of the Prasar Bharati by enactment of

the Prasar Bharati Act, 1990, as evident from

the provisions thereof, is to organize and

conduct public broadcasting services to

inform, educate and entertain the public

including, inter alia, to provide adequate

coverage to sports and games so as to

encourage healthy competition and the

spirit of sportsmanship. The object of the

25 Prasar Bharati Act, 1990, it is argued, is

to reach the maximum number of citizens and

provide access to news and information to

citizens living in the remote villages and

hamlets of the country. Similarly, the object

behind the enactment of the Sports Act, 2007 is

to provide access of sporting events of

national importance to largest number of

listeners and viewers on free to air basis. It

is in the above light that the provisions of

Section 3 of the Sports Act, 2007 and Section 8

of the Cable Act, 1995 have to be construed.

Shri Rohatgi, has submitted that the aforesaid

provisions should not be read and understood to

be confined to re-transmission of the live

signals compulsorily shared with Prasad Bharati

by the content owners only on the terrestrial

and DTH networks of Prasar Bharati. Any such

view, according to Shri Rohatgi, would be

counter-productive and go against the mandate

26 of Section 3 of the Sports Act, 2007. It is

also pointed out the provisions of sub-section

(2) of Section 3 of the Sports Act, 2007 to

contend that the possible loss of revenue

arising to the content rights owners/holder due

to the mandatory requirement of sharing live

feeds with the Prasar Bharati has been

adequately taken care of by the scheme of

arrangement of revenue contained in sub-section

(2) of Section 3 of the Sports Act, 2007. It

is urged that it is in the light of the above

that the provisions of Section 8 of the Cable

Act, 1995 have to be construed. It is further

contended that though the Cable Act, 1995 is

anterior to the enactment of the Sports Act,

2007, Section 8 of the Cable Act, 1995 should

not be understood to have been whittled down by

the enactment of Section 3 of the Sports Act,

2007 in the absence of any conspicious

indication of such legislative intent in

27 Section 3 of the Sports Act, 2007. In fact,

according to Shri Rohatgi, the mandatory duty

cast on the Cable Operators by Section 8 of the

Cable Act, 1995 is another step 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

28 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 argued that the

telecast of the cricket matches is like

production of a cinematograph film within the

meaning of Section 2(f) of the Copyright Act.

BCCI as the organizer is the author of the

Copyright who has assigned the same to Star

India Pvt. Ltd. There is a statutory

29 curtailment of the said right under Section 3

of the Sports Act, 2007, the extent of which

must be understood to be confined to the

explicit contours of the said provision which

cannot be readily and easily extended. Any

unwarranted extension would amount to an

invasion of the copyright/broadcasting right of

the respondents Nos. 3 and 4. The legislation

is expropriatory in character. It must,

therefore, be strictly construed. Reference to

elaborate case law on the issue has been made

in the very exhaustive arguments advanced. It

is accordingly pointed out that the curtailment

of the copyright/broadcasting right of the

content rights owner/holder is circumscribed

and is to the extent of a ‘must share’

obligation, which by the express language of

Section 3 of the Sports Act, 2007 is to enable

the live feed to be retransmitted by Prasar

Bharati through the terrestrial and DTH

30 networks of Doordarshan. It is urged that

Section 8(1) of the Cable Act, 1995 engrafts a

‘must carry’ obligation and such ‘must carry’

obligation cannot extend the scope of the ‘must

share’ mandate contained in Section 3 of the

Sports Act, 2007. Emphasis is laid on the

words “its terrestrial networks and

Direct-to-Home networks” appearing in Section 3

of the Sports Act, 2007 to contend that the

‘must share’ mandate must be understood to be

to enable the Prasar Bharati to re-transmit the

same on its terrestrial and DTH networks only.

On behalf of Star India Pvt. Ltd. it is

specifically contended that a huge amount of

revenue of over 3000 crore has been paid by

Star India Pvt. Ltd. towards

broadcasting/telecasting rights which must be

allowed to have full effect and any restriction

in the exercise of such right, if at all, can

operate only to the extent explicitly provided

31 for in Section 3 of the Sports Act.

25. On behalf of BCCI, Shri Amit Sibal,

learned Senior Counsel has specifically argued

that any extended meaning to Section 3 of the

Sports Act, 2007 beyond what flows from its

plain language would have the effect of

infringing the rights of the BCCI under Article

19(1)(a) of the Constitution. Several

precedents have been cited 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

32 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 to production of

cinematograph film conferring on the author and

its assignee the same inviolable rights that

33 the provisions of the Copyright Act confer on a

copyright holder. Rather, we are of the view

that in the facts of the present case and to

answer the issue arising therein it will

suffice to acknowledge the existence of a right

in the content rights owner/holder in the live

feed of a cricket match or other sporting

events of national importance. The real issue

is one of the expanse of the said right and the

degree of curtailment thereof by virtue of the

provisions of Section 3 of the Sports Act, 2007

read with Section 8 of the Cable Act, 1995 to

which aspect of the case we will now turn.

27. The Cable Act was enacted in the year

1995 to regulate the operation of cable

television network which had come into India

around that time. Cable television was a new

experience for the Indian viewers who,

overnight, had access to a large number of

34 foreign channels carrying different kinds and

forms of entertainment and information. While

it is correct that some of the channels

available on cable television network were

Indianized in content, there was a

apprehension, and perhaps justified, that the

new trend and upsurge may make Doordarshan and

its regional channels extinct resulting in

dissemination of awareness on national issues.

This is evident from the report of the Standing

Committee to whom the Cable T.V. Network

(Regulation) Bill 1993 was referred to. This

is why Section 8 of the Cable Act, 1995 was

enacted, namely, to obligate Cable TV operators

to carry news and information concerning the

developments of the country, Government

Policies and other such related matters even to

all such households who may have availed of

cable services. In fact, transmission of

Doordarshan channels by Cable Operators is

35 always a complimentary part of any bouquet of

services that a Cable Operator may make

available to a consumer.

28. On the other hand, the Sports Act,

2007 which is a later enactment had altogether

a different object for its enactment, namely,

to provide access to the largest number of

listeners and viewers, on a free to air basis,

of sporting events of national importance

through mandatory sharing of sports

broadcasting signals with Prasar Bharati and

for maters connected therewith or incidental

thereto. Section 3 of the Sports Act, 2007 is a

significant 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

36 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

37 on “its terrestrial and DTH networks”. If the

legislative intent was to allow Section 3 of

the Sports Act, 2007 not to operate on its own

language but to be controlled by Section 8 of

the Cable Act, 1995, there would have been some

manifestation of such intent either in Section

3 of the Sports Act, 2007 or in Section 8 of

the Cable Act, 1995 (by an appropriate

amendment thereto). In the absence of any such

legislative intent it will only be correct to

hold that Section 3 of the Sports Act, 2007

operates on its own without being controlled

by any of the conditions or stipulations

contained in Section 8 of the Cable Act, 1995.

Any other view may have the effect of

introducing a fragility in Section 8 of the

Cable Act, a consequence that must surely be

avoided.

29. Section 8 of the Cable Act imposes an

obligation on the Cable Operators to

38 carry/transmit such Doordarshan channels or the

channels operated by or on behalf of

Parliament, as may be, notified in the Official

Gazette. The legislature has not specified any

particular channel which must be mandatorily

carried by Cable Operators. The task has been

left to the Central Government. It will,

therefore, be not wrong to understand the

obligation cast on Cable Operators to transmit

the DD1 (National) channel and the transmission

of Live feed of major sports events of national

importance on the said channel by the

Doordarshan as a matter of mere coincidence

instead of a legislative mandate.

Hypothetically, it is always open to the

Central Government to denotify DD1 (National)

from the notified channels in the notification

under Section 8 of the Cable Act. Surely, the

effect and operation of Section 3 of the

Sports Act cannot be left to be decided on the

39 basis of the discretion of the Central

Government to include and subsequently exclude

or not to include at all the DD1 (National)

channel in a notification to be published under

Section 8 of the Cable Act, 1995. Insofar as

DTH network of private operators is concerned,

the same does not even come under the operation

of a Cable Operator.

30. Needless to say our conclusions above

do not, in any manner, impact or effect the

rights of the appellant under Section 12(3)(c)

of the Prasar Bharati Act which rights always

remain available for exercise, if so desired.

31. On the basis of the above discussions,

we, therefore, come to the conclusion that

under Section 3 of the Sports Act, 2007 the

live feed received by Prasar Bharati from

content rights owners or holders is only for

the purpose of re-transmission of the said

40 signals on its own terrestrial and DTH networks

and not to Cable Operators so as to enable the

Cable TV operators to reach such consumers who

have already subscribed to a cable network.

32. For the aforesaid reasons, all the

appeals will have to fail. They are

accordingly dismissed. The judgment and order

dated 4th February, 2015 passed by the High

Court is affirmed.

....................,J.

(RANJAN GOGOI)

....................,J.

(NAVIN SINHA)

NEW DELHI AUGUST 22, 2017

41