Union of India Ministry of Information and Broadcasting Secretary vs Board of Control For Cricket In India

CIVIL APPEAL NO.(S) 10732-10733 OF 2017 [ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NOS.4574-4575 OF 2015]

UNION OF INDIA … APPELLANT(S)

VERSUS

BOARD OF CONTROL FOR CRICKET IN INDIA & ORS. ...RESPONDENT(S)

WITH

CIVIL APPEAL NO.(S) 10734-10735 OF 2017 [ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NOS.4572-4573 OF 2015] [PRASAR BHARATI VS. BOARD OF CONTROL FOR CRICKET IN INDIA & ORS.

CIVIL APPEAL NO.(S) 10736-10737 OF 2017 [ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NOS.12743-12744 OF 2016] [HOME CABLE NETWORK PVT. LTD. VS. BOARD OF CONTROL FOR CRICKET IN INDIA & ORS.]

CIVIL APPEAL NO.(S) 10738-10739 OF 2017 [ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NOS.419-420 OF 2017] [SOPAN FOUNDATION VS. BOARD OF CONTROL FOR CRICKET IN INDIA & ORS.]

Signature Not Verified

Digitally signed by VINOD LAKHINA Date: 2017.08.22 17:07:50 IST Reason:

1 J U D G M E N T

RANJAN GOGOI, J.

1. Leave granted in all the Special Leave

Petitions.

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 i.e. Board of Control for

Cricket in India (hereinafter referred as the

“BCCI”) through competitive bidding. These

2 signals (live feeds) are transmitted to millions of

Indian homes by the Doordarshan; cable operators

and Direct-to-Home (DTH) operators. The rights of

these entities in respect of the live telecast of

major cricketing events in the country and the

consequential revenue implications are the core

issues arising in these groups of appeals which

have been filed in the following circumstances.

3. BCCI is the “approved” national level body

holding virtually monopoly rights to organize

cricketing events in the country. Grant of

telecasting rights of these events is, therefore, a

major source of revenue for the BCCI. There is

currently in force a Media Rights Agreement by and

between Star India Private Ltd. and BCCI effective

from April 2012 till March 2018 under which Star

India Private Limited [respondent No.4 in the

Appeals arising out of Special Leave Petition

(Civil) Nos.4574-4575 of 2015] has been granted

exclusive rights to telecast cricketing events that

3 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 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

4 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

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

5 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 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

6 assignee one Nimbus Communications Limited had

moved the High Court of Delhi by way of Writ

Petition (No.7655 of 2007) seeking directions to

the Prasar Bharati Broadcasting Corporation and the

Union of India to encrypt Doordarshan’s Satellite

Transportation Feed of live broadcasting signals of

cricket matches organized by the BCCI to the

Doordarshan Kendras and transmission towers

throughout India for subsequent broadcasts on

Doordarshan’s terrestrial and DTH networks. An

appropriate declaratory relief to the effect that

no television network, DTH network, Multisystem

network or local cable operator can broadcast such

events without a licence from the content rights

owners/holder was also sought. The said writ

petition (No.7655 of 2007) was dismissed by the

learned single judge of the High Court primarily on

the ground that the 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

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

8 been notified for mandatory 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 be placed in the

designated Doordarshan channels which are to be

9 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. 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,

10 1990 (hereafter referred to as “the Prasar Bharati

Act, 1990”), Sports Act, 2007 and Cable Act, 1995

and also to notice the object behind the enactments

in question.

12. Under Section 3 of the Prasar Bharati Act,

1990, Prasar Bharati has been established as a

Corporation to discharge the functions of erstwhile

Akashvani and Doordarshan. Under Section 12 of the

Prasar Bharati Act the primary duty of the

Corporation is to organize and conduct public

broadcasting services to inform, educate and

entertain the public and to ensure a balanced

development of broadcasting on radio and

television. Section 12(2)(e) of the Prasar Bharati

Act, 1990 clearly stipulates that Prasar Bharati

shall, inter alia, be guided by the objective of

“providing adequate coverage to 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

11 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 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

12 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 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

13 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 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

14 of Parliament in the manner and name as may be specified by the Central Government by notification in the Official Gazette;

(ii) at least two Doordarshan terrestrial channels and one regional language channel of a State in the prime band, in satellite mode on frequencies other than those carrying terrestrial frequencies.

(2) The channels referred to in sub-section (1) shall be re-transmitted 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

15 already noticed, by notification dated 13th

September, 2000, DD1 (National) channel and DD

(News) channel and 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 through mandatory sharing of sports

16 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 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

17 owner or holder and the Prasar Bharati shall be in the ratio of not less than 75:25 in case of television coverage and 50:50 in case of radio coverage.

(3) The Central Government may specify a percentage of the revenue received by the Prasar Bharati under sub-section (2), which shall be utilised by the Prasar Bharati for broadcasting other sporting events.” (Emphasis supplied)

18. At this stage, we may also take note of the

following definitions contained in Section 2 of the

Sports Act, 2007:

“Section 2-Definitions

1) In this Act, unless the context otherwise requires,--

(a)……………………………………………………………………… xxx

(c) "broadcasting service" means as-

sembling, programming and placing communication content in electronic form on the electro-magnetic waves on specified frequencies and trans- mitting it continuously through broadcasting network or networks so as to enable all or any of the mul-

tiple users to access it by connect- ing their receiver devices to their respective broadcasting networks and includes the content broadcasting

18 services and the broadcasting net- work services;

(d) "broadcasting networks service"

means a service, which provides a network of infrastructure of cables or transmitting devices for carrying broadcasting content in electronic form on specified frequencies by means of guided or unguided electro- magnetic waves to multiple users, and includes the management and op- eration of any of the following:

(i) Teleport/Hub/Earth Station,

(ii) Direct-to-Home (DTH) Broadcast- ing Network,

(iii) Multi-system Cable Television Network,

(iv) Local Cable Television Network,

(v) Satellite Radio Broadcasting Network,

(vi) any other network service as may be prescribed by the Central Government;

xxx

(f) "cable television network" means any system consisting of closed transmission paths and associated signal generation, control and dis-

tribution equipment, designed to re- ceive and re-transmit television channels or programmes for reception by multiple subscribers;

xxx

19

(j) "Direct-to-Home (DTH) broad-

casting service" means a service for multi-channel distribution of pro- grammes direct to a subscriber's premises without passing through an intermediary such as a cable opera- tor by uplinking to a satellite sys- tem;

xxx

(s) "sporting events of national importance" means such national or international sporting events, held in India or abroad, as may be noti-

fied by the Central Government in the Official Gazette to be of na-

tional importance;

xxx

(t) "terrestrial television service"

means a television broadcasting ser- vice provided over the air by using a land-based transmitter and di- rectly received 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

20 simultaneously shares the live broadcasting signal,

without its advertisements, with the Prasar Bharati

to enable them to re-transmit the same on its

terrestrial networks and Direct-to-Home networks in

such manner and on such terms and conditions as may

be specified.

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

21 the submissions advanced on behalf of the rival

parties in extenso and as the arguments advanced

before us are essentially in reiteration a brief

recapitulation of what was argued before us will

suffice.

22. Shri Mukul Rohatgi, learned Attorney

General (as he then was) who has argued the case of

the appellant (Union of India) in the main [Civil

Appeals arising out of Special Leave Petition

(Civil) 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 Prasar Bharati

Act, 1990, it is argued, is

22 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 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

23 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 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

24 respective fields without impacting each other.

23. Dr. Rajeev Dhavan, learned Senior Counsel

appearing for the Home Cable Network Private

Limited and Sopan Foundation had also argued the

case of the appellant in extenso and,

particularly, on the question of infringement of

the provisions of Article 19(1)(a) of the

Constitution of India, an aspect to which we will

advert to a little later.

24. On behalf of the respondents, separate

arguments have been made by S/Shri Harish Salve,

P. Chidambaram, Dr. A.M. Singhvi, Sudhir Chandra,

Gopal Jain, learned Senior Counsels appearing for

the Star India Private Limited and Shri Amit Sibal,

learned Senior Counsel appearing for the BCCI. It

is contended that the rights of the respondent Nos.

3 and 4 (ESPN Software Pvt. Ltd. and Star India

Pvt. Ltd.) under the Media Rights Agreement will be

seriously infringed in the present case if the view

25 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 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

26 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 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

27 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 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

28 is not the contention of BCCI that the provisions

of Article 19(1)(g) of the Constitution have been

violated. Insofar as the provisions of Article

19(1)(a) of the Constitution is concerned, Dr.

Dhavan has contended that, at best, the present is

a case where the slice of the cake becomes a little

smaller; but that by no means would attract Article

19(1)(a) of the Constitution, it is argued. We

agree with Dr.Dhavan.

26. Proceeding further, we deem it necessary to

clarify that for the present case it is not

necessary and, therefore, we do not intend to go

into the question raised by the parties with regard

to the nature of the rights conferred by Section 37

of the Copyright Act, 1957 namely, whether the live

telecast of a cricket match amounts to production

of cinematograph film conferring on the author and

its assignee the same inviolable rights that the

provisions of the Copyright Act confer on a

copyright holder. Rather, we are of the view that

29 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 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

30 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 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

31 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 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

32 Act, 2007, therefore, has to be interpreted very

strictly. Not only we do not find in the

provisions of Section 3 of the Sports Act, 2007 any

recognition of the requirement stipulated in

Section 8 of the Cable Act, 1995, the plain

language of the said provision i.e. Section 3 of

the Sports Act, 2007 makes it clear that the

obligation to share cast on the content rights

owner or holder, etc. with Prasar Bharati is to

enable the Prasar Bharati to transmit the same on

“its terrestrial and DTH 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

33 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 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

34 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 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

35 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 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

36 ITEM NO.1501 COURT NO.4 SECTION XIV

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

PETITION(S) FOR SPECIAL LEAVE TO APPEAL (C) NO(S). 4574-4575/2015

UNION OF INDIA PETITIONER(S)

VERSUS

BOARD OF CONTROL FOR CRICKET IN INDIA & ORS. RESPONDENT(S) WITH SLP(C) NO. 4572-4573/2015 (XIV)

SLP(C) NO. 12743-12744/2016 (XIV) SLP(C) NO. 419-420/2017 (XIV)

Date : 22-08-2017 These matters were called on for pronouncement of today.

For parties (s) Mr. Rajeev Sharma, AOR

Mr. Adarsh Upadhyay, AOR

Md. Rashid Saeed, AOR

Mr. Fuzail Ahmad Ayyubi, AOR

Mr. Eklavya Vasudev, Adv.

Ms. Radha Rangaswamy, AOR Ms. Ranjeeta Rohatgi, Adv.

Mr. Sai Krishna Rajagopal, Adv.

Mr. Sidharth Chopra, Adv.

Ms. Sneha Jain, Adv.

Ms. Ruby Singh Ahuja, Adv.

Ms. Akansha Munjhal, Adv.

Ms. Julien George, Adv.

Mr. Yatinder Garg, Adv.

Ms. Kirti Pujari, Adv.

Mr. Manish Kumar, Adv.

Mr. Shreyas Jain, Adv.

Mr. Shivam Singh, Adv.

Mr. Gopal Singh, AOR

37 Hon'ble Mr. Justice Ranjan Gogoi pronounced

the judgment of the Bench comprising His

Lordship and Hon'ble Mr. Justice Navin Sinha.

Leave granted in all the Special Leave

Petitions.

The appeals are dismissed in terms of the

signed reportable judgment.

[VINOD LAKHINA] [ASHA SONI] AR-cum-PS BRANCH OFFICER

[SIGNED REPORTABLE JUDGMENT IS PLACED ON THE FILE]

38