REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

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.]

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

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