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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5252 OF 2016 (ARISING OUT OF S.L.P. (CIVIL) NO. 8988 OF 2014)

STAR SPORTS INDIA PRIVATE LIMITED .....APPELLANT(S)

VERSUS

PRASAR BHARATI & ORS. .....RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

Leave granted.

2) The instant appeal is filed against the impugned judgment dated

October 3, 2013 passed by the Division Bench of the High Court

of  Delhi  in  W.P.(C)  No.  3611 of  2013  which  was  filed  by  the

appellant  herein.   The  appeal  raises  the  issue  regarding  the

scope of  obligations  of  a  Television  Broadcasting  Organisation

under the Sports Broadcasting Signals (Mandatory Sharing with

Prasar Bharati) Act, 2007 (hereinafter referred to as “Sports Act”).

We may mention at the outset that under Section 3 of the Sports

Act,  a  Television  Broadcasting  Organisation  is  prohibited  from

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carrying  the  live  television  broadcast  of  a  sporting  event  of

national importance on cable or Direct-to-Home (DTH) networks

in  India,  unless  it  simultaneously  shares  the  live  broadcasting

signals,  without  its  advertisements,  with  the  Prasar  Bharati

(respondent  No.1)  to  enable  it  to  retransmit  the  same  on  its

terrestrial and DTH network.  

3) In  view of  the  above  statutory  obligation,  the  appellant  herein

sharing the live broadcast signals with respodnent No.1 Prasar

Bharati and there is no dispute about the same.  The appellant, as

a television broadcaster, is allowed to insert advertisements on its

avenue and recoup its advertisements during a break in live play

at  various  points  during  broadcast,  such  as,  during  breaks

between overs in a cricket match, at the fall of a wicket, during

drink breaks etc.  These advertisements are not included while

sharing  the  live  broadcasting  signals  with  Prasar  Bharati.   No

dispute about this as well.

4) The  problem  has,  however,  arisen  in  respect  of  the  contents

shared with Prasar Bharati which, at times, include some kind of

advertisements.  According to the appellant, the broadcast signal

of a sporting event provided by an event organiser, known as the

“world feed” (as the same feed is provided to all broadcasters the

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world over), includes the broadcast of the live play of the event as

it happens on the field as also certain “features” which enhance a

view's  experience,  such  a  Hawk-eye,  ball  delivery  speed

reference, umpire naming graphics, player statistics, score cards,

match summary graphics,  replay graphics etc.   These features

are  inserted  at  the  site  by  or  at  the  instance  of  the  event

organiser.  Such features invariably contain logos of  the event

sponsors  known  as  “On-Screen  Credits”  in  industry  parlance.

These “On-Screen Credits” are, however, included while sharing

the live broadcasting signals with Prasar Bharati.  Prasar Bharati

has taken exception to the aforesaid inclusion treating the same

as “advertisements”  and, thus,  turning it  as violative of Section

3(1) of  the Sports Act.   The appellant,  on the other hand, has

taken the position that  in terms of Section 3(1) of the Sports Act,

the obligation of  a television Broadcaster, i.e.,  the appellant,  is

limited to  sharing of  the world feed which it  receives from the

event  organizer/owner  on  as  as-is-where-is  basis  without

advertisements  of  the  television  broadcaster,  and  that  the

appellant is not obliged to remove any On-Screen Credits inserted

by  the  event  organizer.  The  appellant  contested  the  stand  of

Prasar  Bharati  (respondent  No.  1)  that  it  is  the  duty  of  the

appellant  to  ensure  that  the  sponsor  logos/On-Screen  Credits

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present ion the world feed, which ios created by or at the instance

of the organizer of the event,  have to also be removed by the

appellant.

5) By the impugned judgment, the High Court has found favour with

the contention raised by Prasar Bharati and this view of the High

Court is the subject matter of challenge in the instant appeal.  The

lis has travelled to this Court in following factual background.

6) The appellant (formerly ESPN Software India Private Limited) is

the  sole  and  exclusive  distributor  of  some  sports  channels  in

India.  These include ESPN, Star Sports, Star Sports 2 and Star

Cricket.  These channels telecast various sporting events such as

ICC Cricket, BCCI Cricket, Formula 1, Barclays Premier League

Football,  ICC  Cricket  World  Cup  and  Wimbledon  etc.  for

telecasting these events, the appellant enters into a contract with

the sporting events organizers.  These broadcasting rights have

also  been acquired  from International  Cricket  Council  (ICC)  to

broadcast cricket events organised by ICC for the Indian territory.

7) Keeping in mind the mandate of Section 3 of the Sports Act, the

appellant  informed  respondent  no.  1,  i.e.,  Prasar  Bharati  on

March  07,  2013  that  it  would  be  sharing  the  live  signals  with

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Prasar Bharati of cricket matches organised by the ICC.  It was

followed  by  another  letter  dated  March  14,  2013  wherein  the

appellant stated that such live signals, which the appellant would

be  sharing  with  Prasar  Bharati,  shall  contain  certain  added

features  comprising  of  commercial  elements.   Prasar  Bharati

replied vide letter dated April 06, 2013 informing the appellant that

under  the  law,  appellant's  obligations  is  to  share  the  signals

without  any commercials.   The appellant  responded by stating

that  under  the contract  with  the sporting event  organizers,  the

appellant  was  receiving  the  feed  containing  certain

advertisements  by  the  organizer  of  the  sporting  events  and,

therefore,  the signals were transmitted as it  is,  including those

advertisements which were not the advertisements booked by the

appellant.  It was also stated that as per Section 3 of the Sports

Act, appellant was to share the live broadcast signal as it is, i.e.,

the manner in which it was received by it from the copyright owner

of the broadcast (the sporting event  organizer) and, therefore, it

did not amount to any violation of Section 3 of the Sports Act.  It

was also contended that the appellant had no control over the live

signals  so  received.   Since  both  the  parties  remain  adamant

about their respective position, the appellant approached the High

Court of Delhi by way of writ petition filed under Article 226 of the

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Constitution, seeking following declarations and reliefs:

“(a) a  declaration  that  under  the  provisions  of the  Act  and  the  Rules  framed  thereunder,  the appellant  shall  offer  to  simultaneously share with the respondent  no.  1 the same live broadcasting signals of sporting events of national importance as provided  by  the  appellant  to  other   broadcast network service providers in India, without insertion of the appellant's commercial advertisements;

(b) a  declaration  that  the  live  broadcasting signals  of  sporting  events  of  national  importance shared by the appellant with the respondent no. 1 under Section 3 of the Act shall be the best feed as received from site with all features inclusive of any commercials  of  the  event  owner  and  without insertion of any commercial advertisements by the appellant.

(c) a  writ  of  certiorari  to  quash and set-aside the communication dated 06th April, 2013 issued by the respondent no. 1;

(d) hold and declare Rule 5 of the Sports Rules in violative of Section 3 of the Act and ultra-vires Article 14 of the Constitution;

(e) Hold  and  declare  that  upon  the  appellant offering  to  share  t  he  world  feed of  the  relevant matches of the Champions Trophy 2013 without its commercial  advertisement  with  the respondent,  it has discharged its obligation under Section 3 of the Act; and

(f) Such  other  writ,  order  or  direction  as  the court may deem fit in the interest of justice.”

8) Insofar as vires of Rule 5 of the Rules, 2007 is concerned, the

High Court repelled the contention of the said Rule being ultra

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vires the provisions of Section 3 of the Sports Act with the reason

that this Rule simply obliges the content right owner or the holder

or  a  broadcast  service  provider  to  comply  with  the  statutory

provisions of the Act, which in any case was the obligation of the

broadcaster even if Rule 5 was not to exist.   Thereafter, the High

Court came to the fulcrum of the dispute and noted that insofar as

plain  language of  Section 3  of  the Sports  Act  is  concerned,  it

categorically casts an obligation on the broadcaster to share the

life broadcasting signals without its advertisements, with Prasar

Bharati.  We would produce the text of Section 3 at this juncture:

“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-top-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 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

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sporting events.”  

The High Court noted that the arguments of the appellant was

that the contents were to be shared 'without its  advertisements'

which  meant  no  advertisements  of  the  Broadcaster  and,

therefore, this expression did not include advertisements inserted

in the feed by the event organizer.  This argument is, however,

rejected in the following manner:

“The  expression  'unless  it  simultaneously  shares the  live  broadcasting  signal,  without  its advertisements,  with  the  Prasar  Bharati....'  with reference to the two words 'its advertisements'  in the phrase, admits of the phrase having only one meaning  and  not  admitting  two.   The  only  one meaning that the live broadcast signals have to be without any advertisements for the reason the rules of  English  grammar  guide  us  that  the  subject  of (the single sentence) sub-section (1) of Section 3, is  'the  content  right  owner  or  holder  or  radio broadcasting service provider' and the three words 'without  its  advertisements'  are  a  sub-clause constituting a condition and since the three words immediately  follow  the  words  'live  broadcasting signal' they have to be, plainly read, as a condition concerning  the  live  broadcast  service  provider; meaning thereby, whosoever airs a live television broadcast of sporting events of national importance must share the same without any advertisements inserted with Prasar Bharati.”

9) The submission of the appellants that it had no control over the

live  signals  which  included  the  advertisements  of  the  event

organizer was also dismissed with following observations:

“We need not  discuss the effect  of  the petitioner

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having  no  control  over  the  live  signals  and  the effect of the legislative provision i.e. Section 3(1), casting an obligation upon the petitioner which is impossible of being performed by the petitioner or obliges  the  petitioner  to  violate  its  contractual obligations  with  the  copyright  owner  of  the broadcast, for the reason the same would relate to the vires of Section 3(1) of the Act; and we highlight once again that the vires of Section 3(1) of the Act has not been challenged.”

The aforesaid is the central theme of the impugned judgment of

the High Court.  Though, in addition, the High Court has touched

upon certain other peripheral aspects as well, but that need not

be mentioned at this stage.

10) The arguments which were advanced by Dr. A.M. Singhvi, learned

senior  counsel  appearing  for  the  appellant  are  stated  in

summarised form hereinbelow:

(I) In  the  first  instance,  it  was  argued that  'On-Screen

Credits'  put  in  by  the  event  organizers  themselves  cannot  be

treated  as  advertisements  at  all.   As  these  features  were  the

integral part of the feeds that the appellant was receiving from the

organizers for the purpose of broadcasting.  These credits were

logos of the event sponsors which were appearing on the screen

as per the agreement between the event sponsors and the event

organizers.  Following examples are given by the appellants:

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In  the aforesaid  photographs LG,  Fly  Emirates,  Reliance  and

Pepsi are the logos of the event sponsors which are embedded in the

feeds that are received.

(II) Taking the aforesaid argument further, it was submitted that in any

case the appellant  gets those logos embedded as it  is  and has not

control over the same.  It was argued that while sharing the signals with

Prasar Bharati,  there was no mechanism or methodology to remove

these logos.

(III) It  was  submitted  that  in  the  aforesaid  context,  the  said  logos

could not be treated as commercial advertisements and the purpose of

Section  3  of  the  Sports  Act  was  not  to  share  only  those  kinds  of

advertisements  which  were  commercial  in  nature,  i.e.,  book  by  the

Broadcaster/appellant  from  which  the  appellant  had  received  the

revenue and generated income.  In other words,  it  was argued that

having regard to purposive interpretation which was to be given to the

expression 'without its advertisements' the aforesaid logos would not

come within the mischief of the aforesaid expression.  It is in the same

hue,  the  argument  of  Dr.  Singhvi  was  that  not  only  those

advertisements which were inserted at the instance of the broadcasting

organisation carrying live signal in India, were required to be removed

as per Section 3 of the Sports Act, it was emphatically emphasised that

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broadcasting  organizations,  like  appellants,  are  only  authorised  by

respective event owners, as also under law, to insert advertisements

during normal and routine breaks in the live play of an event/match,

such as end of overs, fall of wicket(s), lunch break, drinks break, injury,

rain etc.    

11) It  was  also  argued  that  there  is  a  distinction  between  the

event/match as played and the event/match as broadcast.  The

broadcast  of  an  event/match  contains  not  only  the  live

event/match as played on the field but also certain enhancement

in the form of features.  These features aid the viewer in better

understanding and appreciating the game and as such enhance

the  viewership  experience.   These  features/On-Screen  Credits

are as much a part of the broadcast of an event as the play of the

event itself.  As per the appellant, the obligation under Section 3 is

to simultaneously share the live 'broadcasting signals' which are

received by an entity carrying the television broadcast in India and

not just the live 'event' itself. However, as a result of the impugned

judgment, the appellant will be compelled to share the live 'event'

and  not  the  live  'broadcast  signal'  of  the  event.  The  appellant

submits  that  it  is  not  practically  feasible  for  a  broadcaster  to

remove the on-screen credits inserted by the event organizer in

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the live signals and simultaneously share the same signals (as

provided  to  other  service  providers  such  as  cable  and  private

DTH  networks)  with  Prasar  Bharati.   In  the  past  when  the

appellant was compelled to provide a clean feed, the appellant

was constrained to procure a separate feed at a considerable cost

as it was not practically feasible for the appellant to remove the

insertions of the event organizer while simultaneously sharing the

same feed with Prasar Bharati.   The appellant submits that the

mandate of the Act is simultaneous sharing and not procuring and

providing a separate live feed to Prasar Bharati.

12) Dr. Singhvi  laid emphasis on the words 'simultaneously shares

the  live  broadcasting  signals'  and  submitted  that  since  the

obligation was to share it 'simultaneously' i.e., 'as it is' the sharing

of  the signals with logos coming from the organizers were not

supposed to be removed.  Another submission of Dr. Singhvi was

that Section 3 was expropriate in nature, i.e. contra proferantem.

In  order  to  buttress  this  argument,  the  learned senior  counsel

argued  that  the  purport  of  sharing  the  signals  without

advertisement was that  if  the advertisements are also included

along  with  the  other  contents,  the  Broadcaster  becomes  the

beneficiary  of  having  much  larger  audience  and  viewers  and,

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therefore, in such cases Prasar Bharati wanted its share in such

advertisement.  In the instant case when the appellant had not

earned any income from these advertisements as these were not

booked by the appellant, there was no question of sharing alleged

income.  Reference was made to the judgment of this Court in

Executive Engineer, Southern Electricity Supply Company of

Orissa Limited (Southco) and Another Vs. Sri Seetaram Rice

Mill1 wherein rule of purposive interpretation was explained in the

following manner:

“46. “Purposive construction” is certainly a cardinal principle  of  interpretation.  Equally  true  is  that  no rule of interpretation should either be overstated or overextended.  Without  being  overextended  or overstated, this rule of interpretation can be applied to the present case. It points to the conclusion that an interpretation which would attain the object and purpose  of  the  Act  has  to  be  given  precedence over any other interpretation which may not further the cause of the statute. The development of law is particularly liberated both from literal and blinkered interpretation, though to a limited extent.

47. The  precepts  of  interpretation  of  contractual documents  have  also  undergone  a  wide-ranged variation in the recent times. The result has been subject to one important exception to assimilate the way in which such documents are interpreted by Judges on the common sense principle by which any  serious  utterance  would  be  interpreted  by ordinary  life.  In  other  words,  the  common sense view  relating  to  the  implication  and  impact  of provisions  is  the  relevant  consideration  for interpreting a term of document so as to achieve temporal proximity of the end result.

1 (2012) 2 SCC 108

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48.  Another  similar  rule  is  the  rule  of  practical interpretation. This test can be effectually applied to the provisions of  a statute of  the present  kind. It must  be  understood  that  an  interpretation  which upon  application  of  the  provisions  at  the  ground reality, would frustrate the very law should not be accepted  against  the  common sense view which will further such application.

49.  Once the court  decides that  it  has to take a purposive  construction  as  opposed  to  textual construction, then the legislative purpose sought to be achieved by such an interpretation has to be kept  in  mind.  We  have  already  indicated  that keeping  in  view  the  legislative  scheme  and  the provisions of the 2003 Act, it will be appropriate to adopt  the  approach of  purposive  construction  on the  facts  of  this  case.  We  have  also  indicated above  that  the  provisions  of  Section  126  of  the 2003 Act are intended to cover the cases over and above  the  cases  which  would  be  specifically covered under the provisions of Section 135 of the 2003 Act.”

13) In  support  of  this  submission,  reliance  was  placed  on  the

judgment of this case in  Davis  Vs.  Sebastian2,  wherein it  was

held as under:

“8.  Now, what  is  the  meaning  of  the  expression “personal use” in sub-section (8) It is a well-settled principle  of  interpretation  that  words  in  a  statute shall  be  given  their  natural,  ordinary  meaning; nothing should be added to them nor should any word  be  treated  as  otiose.  Two  comprehensive expressions  “additional  accommodation”  and “personal  use”  are  employed  in  sub-section  (8). The expression “additional  accommodation” takes in  both  residential  as  well  as  non-residential buildings. “Personal use” is also an expression of wide amplitude. There is nothing in the sub-section which restricts the import  of  that expression. The said requirement of sub-section (8) will be complied

2 (1999) 6 SCC 604

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with on the satisfaction of the Controller about bona fide  need  of  the  additional  accommodation  for personal  use  of  the  landlord.  To  what  use  the additional  accommodation  should  be  put,  is  the choice  of  the  landlord.  In  the  case  of  a non-residential  building  whether  a  new  business should be set up in the additional accommodation or whether it should be used for expansion of the existing business, is left entirely to the option of the landlord.  This,  being  the  intendment  of  the legislature, the court cannot impose any restriction with  regard  to  the  use  of  the  additional accommodation  from  which  the  eviction  of  the tenant is sought.”

14) It  was  next  contended  that  the  word  'its'  occurring  in  the

expression  'without  its  advertisements'  was  referable  to  the

Broadcaster and, therefore, on the application of the rule of literal

construction,  those  logos  which  were  embedded  by  the  event

organizers  could  not  be  treated  as  the  advertisements  of  the

appellant.  Dr. Singhvi also endeavored to take solace from V.B.

Raju Vs. Union of India and Others3 in support of his contention

that  otherwise  the  word  'its'  would  be  rendered  otiose,  if  the

aforesaid interpretation as suggested by the appellant is not made

applicable.

15) The aforesaid submissions of the learned senior counsel for the

appellant were countered by Mr. Mukul Rohatgi, learned Attorney

General  for  India.   At  the outset,  he drew our  attention to  the

3 1980 (Supp) SCC 513

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prayers made in the writ petition and, in particular, prayers (a) and

(b) and submitted that these involve disputed question of facts,

viz., whether the appellant, by sharing the signals/world feed was

simultaneously  passing  advertisements  therein  as  well?  And

whether  under  the  given  circumstances,  such  advertisements

were of commercial nature and were offensive of Section 3 of the

Act  and the Rules framed thereunder?  He submitted that  the

appellant was trivializing the issue by giving it the nomenclature of

'logo'  but  the  fact  remains  that  those  logos  were  of  the

advertisers/sponsors  who  had  given  it  purely  for  commercial

purposes.  The learned Attorney General referred to the counter

affidavit which was filed in the High Court wherein a specific stand

was  taken  by  Prasar  Bharati  that  it  is  the  appellant  who  is

inserting commercials in the feed and not ICC, as is clear from the

following averments made in the counter affidavit:

“Without prejudice to what has been stated above, it is submitted that ion fact it is the appellant who is inserting commercials in the feed and not ICC.  The answering  respondent  understands  that  it  is  the appellant  who  is  producing  the  feed  for  and  on behalf  of  ICC from the  ground.   The  feed  as  is generated  from  the  ground  is  free  of  all commercials.  It is thereafter that the commercials are inserted.  It is another matter that the insertion of  commercials  takes  hardly  a  second  but  the assertion  of  the  appellant  that  it  has  not  control over the insertion is clearly incorrect.”

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He then referred to para 26 of the rejoinder affidavit wherein the

aforesaid  assertion  of  the  respondent  was  denied  by  the

appellant.  He, thus, argued that these are the disputed questions

of  facts  which  could  not  be  gone  in  a  writ  petition,  and  as  a

consequence in the present appeal, his submission was that if the

appellant wanted to raise pure legal question it had to be decided

on  the  premise  that  the  appellant  had  inserted  those

advertisements and insofar as Prasar Bharati is concerned, it had

received the feeds with the said advertisements and that was the

only  basis  on  which  the  issue  at  hand  could  be  decided  by

applying the legal provisions.

16) Mr. Rohtagi then referred to the preamble to the Sports Act, 2007

highlighting the object with which the said Act was enacted and

submitted that it is that spirit and objective which has to be kept in

mind while construing the provisions of Section 3 of the Sports

Act.

17) Insofar  as  interpretation  that  is  to  be  given  to  the  word  'its'

occurring  in  the  expression  'without  its  advertisements',  he

submitted that Section 3 mentions three categories, namely, (a)

content right owner; (b) holder; and (c) service provider. According

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to him, the word 'its' was relatable to any of the aforesaid three

categories  and,  therefore,  even  if  it  is  presumed  that  the

logos/advertisements in the world feed are inserted by the event

organizers,  that  also  falls  within  the  mischief  of  the  aforesaid

provision.   Basic  idea,  according  to  him,  was  that  the  feed

generated has to be free of ads.

18) Mr.  Rohtagi  also  referred  to  the  provisions  of  sub-section  (2)

of  Section 3 of  the Act  to highlight  the purpose of  sharing the

revenue  which  was  in  the  ratio  of  75:25,  i.e.,  75%  for  the

Broadcaster and 25% revenue was to be given to Prasar Bharati.

His  submission  that  the  statutory  provision  was  enacted  to

compensate Prasar Bharati for showing the advertisements which

were booked by the Broadcaster or even event sponsors who had

earned money therefrom.

19) Mr. Rohtagi also took aid of Rule 2(b) of the Rules for interpreting

Section  3  appropriately  and  submitted  that  the  words  'content

rights  owner  or  holder'  clearly  meant  all  the  three  aforesaid

categories.  In view of Rule 5 of the Rules, he argued that it was

the responsibility of the appellant to take care of ICC even if it is

presumed that ICC as event organizer had given world feed in

that manner.

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20) Proceeding therefrom, the next argument of the learned Attorney

General  was  that  such  a  provision  cannot  be  treated  as

expropriately, as the revenue was shared between the parties.

21) Concluding his submissions, Mr. Rohtagi referred to the judgment

of  this  Court  in  Secretary,  Ministry  of  Information  &

Broadcasting,  Govt.  of  India  and  Others  Vs.  Cricket

Association  of  Bengal  and  Other4 wherein  it  was  held  that

airwaves are public  property.  He submitted that  paragraph 78

which  was  relied  upon  by  the  appellant  had  to  be  read  in

conjunction with paragraph 79.  Both these paras read as under:   

“78. There  is  no  doubt  that  since  the airwaves/frequencies are a public property and are also  limited,  they  have  to  be  used  in  the  best interest of the society and this can be done either by  a  central  authority  by  establishing  its  own broadcasting  network  or  regulating  the  grant  of licences  to  other  agencies,  including  the  private agencies. What is further, the electronic media is the  most  powerful  media  both  because  of  its audio-visual  impact and its widest reach covering the  section  of  the  society  where  the  print  media does not reach. The right to use the airwaves and the  content  of  the programmes,  therefore,  needs regulation for balancing it and as well as to prevent monopoly of information and views relayed, which is a potential danger flowing from the concentration of the right to broadcast/telecast in the hands either of  a  central  agency  or  of  few  private  affluent broadcasters.  That  is  why  the  need  to  have  a central agency representative of all sections of the

4 (1995) 2 SCC 161

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society free from control  both of  the Government and the dominant influential sections of the society. This  is  not  disputed.  But  to  contend that  on that account the restrictions to be imposed on the right under Article 19(1)(a) should be in addition to those permissible under Article 19(2) and dictated by the use of public resources in the best interests of the society at large, is to misconceive both the content of the freedom of speech and expression and the problems posed by the element of public property in, and the alleged scarcity of, the frequencies as well as by the wider reach of the media. If the right to freedom of speech and expression includes the right  to  disseminate  information  to  as  wide  a section of the population as is possible, the access which enables the right to be so exercised is also an integral part of the said right. The wider range of circulation  of  information  or  its  greater  impact cannot  restrict  the content  of  the right  nor  can it justify its denial. The virtues of the electronic media cannot  become  its  enemies.  It  may  warrant  a greater  regulation  over  licensing  and control  and vigilance on the content of the programme telecast. However, this control can only be exercised within the framework of Article 19(2) and the dictates of public  interests.  To plead for  other  grounds  is  to plead  for  unconstitutional  measures.  It  is  further difficult to appreciate such contention on the part of the Government in this country when they have a complete  control  over  the  frequencies  and  the content  of  the  programme  to  be  telecast.  They control  the  sole  agency  of  telecasting.  They  are also armed with the provisions of Article 19(2) and the  powers  of  pre-censorship  under  the Cinematograph Act and Rules. The only limitation on  the  said  right  is,  therefore,  the  limitation  of resources and the need to use them for the benefit of  all.  When,  however,  there  are  surplus  or unlimited  resources  and  the  public  interests  so demand or in any case do not prevent telecasting, the validity of the argument based on limitation of resources  disappears.  It  is  true  that  to  own  a frequency  for  the  purposes  of  broadcasting  is  a costly  affair  and even when there are surplus  or unlimited frequencies, only the affluent few will own them and will be in a position to use it to subserve

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their own interest by manipulating news and views. That also poses a danger to the freedom of speech and expression of the have-nots by denying them the  truthful  information  on  all  sides  of  an  issue which is so necessary to form a sound view on any subject.  That  is  why the doctrine of  fairness has been evolved in the US in the context of the private broadcasters  licensed  to  share  the  limited frequencies with the central agency like the FCC to regulate  the  programming.  But  this  phenomenon occurs even in the case of the print media of all the countries. Hence the body like the Press Council of India  which  is  empowered  to  enforce,  however imperfectly,  the  right  to  reply.  The  print  media further  enjoys  as  in  our  country,  freedom  from pre-censorship unlike the electronic media.

79. As stated earlier, we are not concerned in the present  case  with  the  right  of  the  private broadcasters,  but  only  with  the  limited  right  for telecasting particular cricket matches for particular hours of the day and for a particular period. It is not suggested  that  the  said  right  is  objectionable  on any of the grounds mentioned in Article 19(2) or is against the proper use of the public resources. The only objection taken against the refusal to grant the said  right  is  that  of  the  limited  resources.  That objection  is  completely  misplaced  in  the  present case since the  claim is  not  made on  any of  the frequencies  owned,  controlled  and  utilised  by Doordarshan. The right claimed is for uplinking the signal  generated  by  the  BCCI/CAB to  a  satellite owned by another agency. The objection, therefore, is devoid of any merit and untenable in law. It also displays a deliberate obdurate approach.”

22) We have given our due, deep and pervasive consideration to the

submissions of counsel for both the parties, which they deserve. It

is clear from the contents of the arguments that the contentions

are  virtually  the  same  which  were  projected  before  the  High

Court; the only difference could be that the arguing counsel have

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projected a melange of much more clarity, deftness and dexterity

in their pellucid arguments.

23) At the outset it needs to be remarked that vires of the provisions

of  Section  3  of  the  Sports  Act  are  not  questioned.   It  is  only

interpretation  that  has  to  be  placed  on  the  said  provision,  on

which  the  parties  have  joined  issue.   Therefore,  we  have  to

ascertain the true meaning and scope of Section 3 of the Act and

on  attaining  this  task,  answer  to  the  issue  would  become

available.

24) We may also mention that though the provisions of Rule 5 of the

Rules were challenged on the ground that these are ultra vires

Section  3  of  the  Act,  after  the  High  Court  has  negatived  this

challenge,  this  argument  was  not  persisted  in  this  Court.

Therefore, we have also to proceed in the matter, keeping in view

the provisions of Rule 5 of the Rules.  We may, however, hasten

to  add  the  reason  given  by  the  High  Court  in  repelling  the

argument that Rule 5 of the Rules is ultra vires Section 3 is well

founded even otherwise.  With the aforesaid preliminary remarks,

we  proceed  to  analyse  the  arguments  and  discuss  the  issue

involved.

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25) Provisions of Section 3 of the Act have already been taken note

of.  We would like to quote hereunder, the text  of  Section 2(b)

which defines 'broadcasting' along with Section 2(d) and Section

2(h) which provide definitions of 'broadcasting networks service'

'content' as well as Rules 2(b), 3 and 5.

“(b)  “broadcasting”  means  assembling  and programming any form of communication content, like  signs,  signals,  writing,  pictures,  images  and sounds, and either placing it in the electronic form on electro-magnetic waves on specifie frequencies and transmitting it through space or cables to make it  continuously  available on the carrier  waves,  or continuously streaming it in digital data form on the computer  networks,  so  as  to  be  accessible  to single or multiple users through receiving devices either directly or indirectly; and all its grammatical variations and cognate expressions;  

(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 operation of any of the following:  (i) Teleport/Hub/Earth Station,  (ii) Direct-to-Home (DTH) Broadcasting Network,  (iii) Multisystem 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;  

(h) “content” means any sound, text, data, picture (still or moving), other audio-visual representation, signal  or  intelligence  of  any  nature  or  any combination  thereof  which  is  capable  of  being created,  processed,  stored,  retrieved  or communicated electronically;  

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5.  The  Central  Government  shall  take  all  such measures, as it deems fit or expedient, by way of issuing  Guidelines  for  mandatory  sharing  of broadcasting signals with Prasar Bharati relating to sporting events of national importance:  

Provided  that  the  Guidelines  issued  before  the promulgation  of  the  Sports  Broadcasting  Signals (Mandatory  Sharing  with  Prasar  Bharati) Ordinance,  2007(  Order  4  of  2007),  shall  be deemed  to  have  been  issued  validly  under  the provisions of this section.  

Rule  2(b)   'content  rights  owner  or  holder'  shall mean a person for the time being having or holding the  broadcasting  rights  in  respect  of  a  sporting event of national importance within the territory of India;

Rule 3 3 Sharing of  Sports Broadcasting Signals with Prasar Bharati.  (1) Every content rights owner or  holder  and  television  or  radio  broadcasting service provider intending to carry a live television broadcast  on  any  cable  television  network  or Direct-to-Home  network  or  intending  to  make  a radio commentary broadcast in India, of a sporting event of national importance shall at least forty- five days  prior  to  the  proposed  date  of  telecast  or broadcast,  inform  the  Prasar  Bharati  about  the same  and  offer  to  share  the  live  signals  in  the manner and on such terms and conditions as are hereunder specified.

(2)  The  content  rights  owner  or  holder  and television  or  radio  broadcasting  service  provider shall provide the live signals to the Prasar Bharati at the Master Control Room of Doordarshan or as the case may be, the Master Control Room of All India Radio, at its own cost.

(3)   The  signals  to  be  shared  with  the  Prasar Bharati by the content rights owner or holder, shall be  the  best  feed  with  all  features  as  that  of provided to a broadcast service provider in India, free from commercial advertisements.

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(4)  The signals referred to in sub-rules (2) and (3) shall include signals of the pre-live event and the post-live event coverage.

(5)  The  Prasar  Bharati  shall  not  be  under  any obligation to carry the logo of any channel available in India.

(6)  The Prasar Bharati shall have all the rights to generate, pre, post and intermission programming.

(7)  The  Prasar  Bharati  shall  have  the  right  to retransmit  the  signals  on  its  terrestrial  and Direct-to-Home networks including the AM and FM Channels of the All India Radio.

Rule.  5  -  Responsibility  of  a  television  or  radio channel  broadcasting  the  sporting  event.  If  the television or radio broadcasting service provider is different from the content rights owner or holder, it shall  be  its  duty  to  ensure  that  adequate arrangements for compliance with the provisions of the  Act  and  the  rules  are  made,  at  the  time  of acquisition  of  the  rights  from  the  content  rights owner or holder.”

26) It is a common case of the parties that the “world feeds” which the

appellant shares with Prasar Bharati is covered by the definition

of 'broadcasting' under Section 2(b) of the Act and in that sense

the appellant provides broadcasting network service as defined in

Section 2(d) of the Act.  Further, the 'world feed' would amount to

'content' under Section 2(h) of the Act. It is these contents which

are to be mandatorily shared by the appellant with Prasar Bharati.

However, at the same time such contents have to be 'without its

advertisements'.

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27) First thing which we need to deliberate upon is as to whether the

logos of the advertisers contained in the 'world feed' shared by

the appellant with Prasar Bharati amounts to 'advertisement'.  As

noted above, the plea of the appellant in this behalf is that since

the broadcast signal of the sporting event provided by the event

organiser (ICC in the instant case) includes these logos and the

appellant  is  supposed  to  share  the  same as  it  is  with  Prasar

Bharati,  it  would  not  be  treated  as  advertisements.   It  is  also

argued  that  these  are  not  commercial  advertisements  as  the

appellant is not getting any revenue from the sponsors.  To our

mind, this is a specious argument to ward off the situation with

which the appellant is confronted with.  It  is not denied by the

appellant that these logos are of the event sponsors, known as

'On-Screen Credits' in industry parlance.  The appellant has itself

shown the photographs thereof which have been reproduced by

us  above.   No  doubt,  such  logos  or  On-Screen  Credits  may

appear at the time of featuring replays like ball delivery speed and

when a  player  gets  out  either  when  he  is  bowled,  run  out  or

caught  or  they  are  shown  while  depicting  player  statistics,

scoreboard, match summary, graphs, etc.  Nonetheless, these are

the  advertisements  the  sponsors  like  Pepsi,  LG,  Fly  Emirates,

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Reliance, etc.  These sponsors have entered into arrangement for

showing their logo on the occasions referred to above.  It is also

not  in  dispute  that  these  sponsors  pay  for  such  On-Screen

Credits.  Insofar as such sponsors are concerned, their motive in

giving these logos to be shown on Television is crystal clear, viz. it

is  intended  to  advertise  their  company  names  for  commercial

motives in mind.  These are, thus, commercials of the sponsors

which would clearly  be treated as not  only  advertisements  but

commercial advertisements.  Once we hold that what is shown

are  advertisements,  the  question  as  to  whether  these

advertisements  are  shown  because  of  some  arrangement

between the organisers of the tournament and the sponsors or as

a  result  of  arrangement  between  the  broadcasters,  i.e.  the

appellant, and the sponsors is immaterial.  Section 3 of the Sports

Act  does  not  make  any  distinction  between  the  aforesaid  two

kinds  of  advertisements.   What  is  prescribed,  in  no  uncertain

terms, is that sharing of  the live broadcasting signal  has to be

without advertisements.

28) On a plain reading of Section 3 of the Sports Act, we are inclined

to agree with the submission of Mr. Rohatgi that the obligation to

share  such  sports  broadcasting  signals  is  upon  the  following

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persons:   (i)  content  rights  owner;  (ii)  content  holder;  and  (iii)

television or radio broadcasting service provider.  Any of  these

above  categories  of  persons  are  not  allowed  to  carry  a  live

television broadcast on:  

(i) any cable or direct-to-home network;

(ii) radio commentary broadcast in India,

if

such television broadcast

or

radio commentary broadcast  

happens to be of sporting events which is of national importance

unless

such content rights owner or  content  holder or  broadcasting service

provider simultaneously shares the live broadcasting signals with

Prasar Bharati

to  enable  Prasar  Bharati  to  re-transmit  the  same  on  its  terrestrial

networks and DTH networks  

in such manner and on such terms and conditions as may be specified.

29) The guidance for laying down the terms and conditions that can

be specified on which sharing of the broadcasting signals has to

take place with Prasar Bharati, is mentioned in sub-section (2) of

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Section  3,  which  specifically  mentions  that  such  terms  and

conditions shall also provide that advertisement revenue sharing

between the content rights owner or holder and Prasar Bharati

shall be in the ratio of 75:25 in the case of television coverage;

and 50:50 in the case of radio coverage.  Section 4 of the Sports

Act, 2007 provides for penalties in case of any violations of the

terms and conditions as may be specified under Section 3 subject

to  the  condition  that  amount  of  a  pecuniary  penalty  shall  not

exceed ₹1 crore.

30) The  preamble  of  the  Act  which  gives  an  idea  of  the  purpose

behind enacting this statute reads as under:

“An Act 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  matters  connected therewith or incidental thereto. ”

31) It becomes apparent from the aforesaid reading of the Preamble

that  purpose  is  to  provide  access  to  the  largest  number  of

listeners and viewers, on a free to air basis, of sporting events of

national  importance.   This  task  is  given  to  Prasar  Bharati.

Notwithstanding more popularity which the private channels have

gained over a period of time, coverage of Prasar Bharati  is far

more  reaching  insofar  as  Indian  population  is  concerned as  it

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reaches almost every nook and corner of the country.  Further the

radio as well as television broadcasting of Prasar Bharat is free of

cost. It is for this reason that the law in the form of Sports Act is

enacted in order to ensure that such sporting events of national

importance are made available to every citizen of  this  country,

irrespective of his/her financial conditions.

32) Section 3, thus, aims to achieve two purposes:

(a) to provide access to largest number of listeners and viewers on a

free to air basis.  The principle of purposive interpretation, in this

context,  meant  that  Prasar  Bharati  was  supposed  to  telecast

these matches for the benefit of general masses spread through

out  India,  who  otherwise  do  not  receive  signals  of  private

channels like the appellant or are not having financial capacity to

pay for these channels.  Thus, it was a larger public interest which

was sought to be served and noble objective was kept in mind

while  enacting the statute;  

(b) insofar  as  income  that  is  generated  from  advertisements  is

concerned,  which  are  shown  on  television  or  broadcasted  on

radio,  the  revenue  thereof  is  to  be  shared  between  the

Broadcaster and Prasar Bharati.  The purpose is obvious.  It is the

broadcasting service provider who is supposed to share the live

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broadcasting  signal  with  Prasar  Bharati,  which  has  the

arrangements with the advertisers and, thus, takes money from

those  who  book  their  advertisements  to  be  broadcasted  on

television or radio.  However, when the signals are shared with

Prasar Bharati enabling it to simultaneously retransmit the same

on  its  terrestrial  networks  or  DTH  networks,  the  viewership/

audience gets multiplied as the reach is to much larger section of

citizenry through Prasar Bharati.  Therefore, Section 3(1), in the

first  instance,  mandates  that  the  sharing  of  live  broadcasting

signals with Prasar Bharati has to be 'without its advertisements'.

Exception is, however, made in sub-section (2) of Section 3 which

enables  the  broadcasting  service  provider  to  even  share  the

contents along with advertisements, but subject to the condition

that  there  has  to  be  a  sharing  of  revenue  in  the  proportion

prescribed in sub-section (2) of Section 3.  As aforesaid, when live

broadcasting signal  is  shared containing advertisements,  those

advertisements  have  much  larger  viewership  because  of  its

telecast/broadcast  on  Prasar  Bharati.   The  benefit  of

advertisement in such a case would accrue to those who have

booked the advertisements and the service provider, in such an

eventuality would definitely be in a position to charge much more

from the advertisers.  It is a matter of common knowledge that

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Page 34

rates  of  advertisement  go  up  when  circulation  thereof  is

enhanced.  When we keep in mind the aforesaid twin objectives

of the Act, the answer to the issue raised becomes obvious.  The

application of rule of purposive interpretation would go against the

appellant and in favour of the respondent.

33) With this,  we advert  to the next  question,  namely, whether the

word 'its' refers to the advertisements that are booked only by the

broadcasters, namely, the appellant in the instant case? Let us

now understand  the meaning of  the word 'its'  occurring in  the

obligation cast upon the broadcasting service provider to share

the live  broadcasting signals  'without  its  advertisements'.  From

our aforesaid discussion, it becomes clear that the sharing of the

signals  has  to  be  without  any  advertisements  and  if  the

advertisements are also to be included in the signals, there has to

be sharing of  the revenue.  The learned Attorney General  has

rightly argued that the word 'its' cannot be given limited meaning

by  confining  it  to  advertisements  only  of  broadcasting  service

provider.   Section  3  which  starts  with  negative  covenant  very

expressly puts an embargo to all the three categories mentioned

therein, viz., content rights owner, (ii) contents holder as well as

(iii) television or radio broadcasting service provider not to have

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Page 35

television broadcast either through cable or DTH and not to have

any radio commentary broadcast unless live broadcasting signal

is shared simultaneously with Prasar Bharati.  Examined in this

hue, it becomes clear that the words 'without its advertisements'

which follow immediately after the words 'unless it simultaneously

shares the live broadcasting signal'  has to be given a meaning

that such broadcasting signals are to be without advertisements,

whether it is of the content rights owner, content holder or that of

television  or  radio  broadcasting  service  provider.   It  is  made

crystal clear by providing the definition of 'content rights owner' or

'holder' in Rule 2(b) of the Rules, 2007.  Rule 3(3) takes the issue

beyond any pale of doubt when it mentions that the signals to be

shared with Prasar Bharati by the content rights owner or holder

are  to  be  the  best  feed  that  is  provided  to  broadcast  service

provider  in  India  and  has  to  be  'free  from  commercial

advertisements'.  Thus, even if it is ICC which has included those

advertisements/logos,  the  feeds  have  to  be  without  those

logos/advertisements inasmuch as nobody can dispute that the

content  rights owner are content holder, i.e,  ICC in the instant

case  has  included  those  logos/advertisements  from  purely

commercial angle.  Thus, the arrangement between the ICC and

the appellant,  is totally inconsequential.

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Page 36

34) The upshot of the aforesaid discussion would be to conclude that

there  is  no  merit  in  the  instant  appeal  which  is,  accordingly,

dismissed with costs.

.............................................J. (A.K. SIKRI)

.............................................J. (PRAFULLA .C. PANT)

NEW DELHI; MAY  27, 2016.

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