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Sunday, May 29, 2016

'free from commercial advertisements'. = 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 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.

                                                                  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.

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 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.

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.

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 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 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.

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.

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.

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 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 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.”



Insofar as vires of Rule 5 of the Rules, 2007 is concerned, the  High  Court
repelled the contention of the said Rule being ultra  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 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.”


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  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.

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:







      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 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.

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 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.

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, 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  Mill[1]  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.

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.”


In support of this submission, reliance was placed on the judgment  of  this
case in Davis Vs. Sebastian[2], 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 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.”


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 Others[3]  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.

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  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.”


            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.

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.

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 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.

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.

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.

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.

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  Other[4]  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 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 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.”


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 projected a melange of much more clarity, deftness  and
dexterity in their pellucid arguments.

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.

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.

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;

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.

(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.”


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'.

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, 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.

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  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.

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 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.

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. ”


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  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.

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  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 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.

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 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.

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.
-----------------------
[1]   (2012) 2 SCC 108
[2]   (1999) 6 SCC 604
[3]   1980 (Supp) SCC 513
[4]   (1995) 2 SCC 161

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