# 128 SUPREME COURT REPORTS [2018] 14 S.C.R. STAR INDIA PRIVATE LIMITED v. DEPARTMENT OF INDUSTRIAL POLICY AND PROMOTION & ORS

- **Citation:** [2018] 14 S.C.R. 128
- **Court:** Supreme Court of India
- **Decided:** 2018-10-30
- **Case number:** Civil Appeal Nos. 7326-7327 of 2018
- **Bench:** R. F. Nariman, Navin Sinha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/128-supreme-court-reports-2018-14-s-c-r-star-india-private-limited-v-department-32444
- **Pages:** 85

## Headnote

Telecommunication (Broadcasting and Cable) Services
Interconnection (Addressable Systems) Regulations, 2017 -
Telecommunication (Broadcasting and Cable) Services (Eighth)
(Addressable Systems) Tariff Order, 2017 - Constitutionality of the
Regulation and Tariff Order challenged - Held: The Regulation
and the Tariff Order were made keeping the interests of the
stakeholders and the consumers in mind and are intra vires the
regulatory power contained in s.36 of the TRAI Act.
Telecom Regulatory Authority of India Act, 1997:
ss.11(1)(a)(iv), 11(1)(b), 36(1) - Role of TRAI - TRAI acts as a
regulatory authority, which looks to the interest of both broadcaster
and subscriber so as to provide a level playing field for both - The
broadcaster is free to provide whatever content he chooses for the
TV channels that he chooses to transmit to the ultimate consumer -
At no stage is content of a TV channel sought to be regulated, and
that pricing relating to TV channels laid down in the Regulation
and Tariff Order is a balancing act between the rights of
broadcasters and the interests of consumers - The broadcaster is
free to arrange pricing of his TV channels so long as they are nondiscriminatory and do not otherwise have the effect of unreasonably
restricting the choice of a subscriber to choose bouquet or a-lacarte channels - Telecommunication (Broadcasting and Cable)
Services Interconnection (Addressable Systems) Regulations, 2017
- Clause 2(j).
Copyright Act, 1957: s.2(dd) - The case of appellants was
that content that is carried by transmission from the broadcasters
to the ultimate consumer is regulated only by the Copyright Act and
any royalties charged are governed only by Copyright Act and this
being the case, when TRAI fixes rates and/or interferes with content,
[2018] 14 S.C.R. 128
128
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it is trespassing into the exclusive domain set out by Parliament
under the Copyright Act and since the TRAI Act and the Copyright
Act, both are Acts passed by Parliament, they have to be harmonised,
and such harmony can be maintained if TRAI is kept out altogether
from the domain covered by the Copyright Act - Held: When the
definitions of "broadcast" in s.2(dd) of the Copyright Act and of
"broadcasting services" in Clause 2(j) of the impugned Regulation
are compared, it is clear that the words "intended to be received by
the general public either directly or indirectly" are completely missing
from the definition of "broadcast" contained in the Copyright -
Therefore, copyright is meant to protect the proprietary interest of
the owner, which in the instant case is a broadcaster, in the "work",
i.e. the original work, its broadcast and/or its re-broadcast by him
- The interest of the end user or consumer is not the focus of the
Copyright Act at all - On the other hand, the TRAI Act has to focus
on broadcasting services provided by the broadcaster that impact
the ultimate consumer - The two Acts operate in different fields - In
this view of the matter, the Copyright Act will operate within its own
sphere, the broadcaster being given full flexibility to either
individually or in the form of a society charge royalty or
compensation - TRAI, while exercising its regulatory functions
under the TRAI Act, does not at all, in substance, impinge upon any
of these rights, but merely acts, as a regulator, in the public interest,
of broadcasting services provided by broadcasters and availed of
by the ultimate consumer - Telecom Regulatory Authority of India
Act, 1997 - Telecommunication (Broadcasting and Cable) Services
Interconnection (Addressable Systems) Regulations, 2017.
Interpretation of statutes: Harmonious construction -
Copyright Act, 1957 - Telecom Regulatory Authority of India Act,
1997 - Held: Both the Copyright Act as well as the TRAI Act are
central enactments which do not expressly provide that the one
overrides the other - In this situation, both the Acts are to be
harmonized in the event of any clash/conflict between the two

## Text

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128 SUPREME COURT REPORTS [2018] 14 S.C.R.
STAR INDIA PRIVATE LIMITED
v.
DEPARTMENT OF INDUSTRIAL POLICY AND PROMOTION
& ORS.
(Civil Appeal Nos. 7326-7327 of 2018)
OCTOBER 30, 2018
[R. F. NARIMAN AND NAVIN SINHA, JJ.]
Telecommunication (Broadcasting and Cable) Services
Interconnection (Addressable Systems) Regulations, 2017 -
Telecommunication (Broadcasting and Cable) Services (Eighth)
(Addressable Systems) Tariff Order, 2017 - Constitutionality of the
Regulation and Tariff Order challenged - Held: The Regulation
and the Tariff Order were made keeping the interests of the
stakeholders and the consumers in mind and are intra vires the
regulatory power contained in s.36 of the TRAI Act.
Telecom Regulatory Authority of India Act, 1997:
ss.11(1)(a)(iv), 11(1)(b), 36(1) - Role of TRAI - TRAI acts as a
regulatory authority, which looks to the interest of both broadcaster
and subscriber so as to provide a level playing field for both - The
broadcaster is free to provide whatever content he chooses for the
TV channels that he chooses to transmit to the ultimate consumer -
At no stage is content of a TV channel sought to be regulated, and
that pricing relating to TV channels laid down in the Regulation
and Tariff Order is a balancing act between the rights of
broadcasters and the interests of consumers - The broadcaster is
free to arrange pricing of his TV channels so long as they are nondiscriminatory and do not otherwise have the effect of unreasonably
restricting the choice of a subscriber to choose bouquet or a-lacarte channels - Telecommunication (Broadcasting and Cable)
Services Interconnection (Addressable Systems) Regulations, 2017
- Clause 2(j).
Copyright Act, 1957: s.2(dd) - The case of appellants was
that content that is carried by transmission from the broadcasters
to the ultimate consumer is regulated only by the Copyright Act and
any royalties charged are governed only by Copyright Act and this
being the case, when TRAI fixes rates and/or interferes with content,
[2018] 14 S.C.R. 128
128
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129
it is trespassing into the exclusive domain set out by Parliament
under the Copyright Act and since the TRAI Act and the Copyright
Act, both are Acts passed by Parliament, they have to be harmonised,
and such harmony can be maintained if TRAI is kept out altogether
from the domain covered by the Copyright Act - Held: When the
definitions of "broadcast" in s.2(dd) of the Copyright Act and of
"broadcasting services" in Clause 2(j) of the impugned Regulation
are compared, it is clear that the words "intended to be received by
the general public either directly or indirectly" are completely missing
from the definition of "broadcast" contained in the Copyright -
Therefore, copyright is meant to protect the proprietary interest of
the owner, which in the instant case is a broadcaster, in the "work",
i.e. the original work, its broadcast and/or its re-broadcast by him
- The interest of the end user or consumer is not the focus of the
Copyright Act at all - On the other hand, the TRAI Act has to focus
on broadcasting services provided by the broadcaster that impact
the ultimate consumer - The two Acts operate in different fields - In
this view of the matter, the Copyright Act will operate within its own
sphere, the broadcaster being given full flexibility to either
individually or in the form of a society charge royalty or
compensation - TRAI, while exercising its regulatory functions
under the TRAI Act, does not at all, in substance, impinge upon any
of these rights, but merely acts, as a regulator, in the public interest,
of broadcasting services provided by broadcasters and availed of
by the ultimate consumer - Telecom Regulatory Authority of India
Act, 1997 - Telecommunication (Broadcasting and Cable) Services
Interconnection (Addressable Systems) Regulations, 2017.
Interpretation of statutes: Harmonious construction -
Copyright Act, 1957 - Telecom Regulatory Authority of India Act,
1997 - Held: Both the Copyright Act as well as the TRAI Act are
central enactments which do not expressly provide that the one
overrides the other - In this situation, both the Acts are to be
harmonized in the event of any clash/conflict between the two so
that both may be given effect to - Since the Telegraph Authority,
acting under the Telegraph Act and the Indian Wireless Telegraphy
Act, is required to act in public interest, the jurisdiction of the said
Authority is left untrammeled by the provisions of the TRAI Act - It
can thus be seen that TRAI and the Telegraph Authority both act in
public interest - The TRAI Act, the Telegraph Act and the Indian
STAR INDIA PVT. LTD. v. DEPARTMENT OF INDUSTRIAL
POLICY AND PROMOTION
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Wireless Telegraphy Act, being statutes in pari materia, form a Code,
insofar as wireless telegraphy and broadcasting is concerned - If
in exercise of its regulatory power under the TRAI Act, TRAI were to
impinge upon compensation payable for copyright, the best way in
which both statutes can be harmonized is to state that, the TRAI Act,
being a statute conceived in public interest, which is to serve the
interest of both broadcasters and consumers, must prevail, to the
extent of any inconsistency, over the Copyright Act which is an Act
which protects the property rights of broadcasters - Therefore, to
the extent royalties/compensation payable to the broadcasters under
the Copyright Act are regulated in public interest by TRAI under the
TRAI Act, the former shall give way to the latter.
Dismissing the appeals, the Court
HELD: 1. The provisions of the TRAI Act have to be
viewed in the light of protection of the interests of both service
providers and consumers. This being so, it is clear that no
constricted meaning can be given to the provisions of this Act.
Under Section 11(1)(a)(iv) of the TRAI Act, one of the functions
of the Authority, though recommendatory, is to facilitate
competition and promote efficiency in the operation of
telecommunication services (which includes broadcasting
services) so as to facilitate growth in such services. Under Section
11(1)(b), the terms and conditions of inter-connectivity between
different service providers have to be fixed, which necessarily
includes terms that relate not only to carriage simpliciter but to
all terms and conditions of interconnectivity between broadcaster,
MSO, Cable TV operator and the ultimate consumer, so as to
ensure that the object of the Act is carried out, namely, that both
broadcasters and consumers get a fair deal. Section 11(2) makes
it clear that the Authority may, from time to time, notify the rates
at which telecommunication services, including broadcasting
services, within India and outside India, shall be provided under
this Act. The plain literal language of Section 11(2) makes it clear
that rates at which broadcasting services are offered within and
outside India can be fixed by TRAI. It is clear therefore that
when rates are fixed after several rounds of consultations between
various service providers and consumers, looking to the interest
of each, it is impossible to say that any broadcaster's rights have
been impinged upon. [Para 30][177-G-H; 178-A-F]
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Avishek Goenka v. Union of India (2012) 5 SCC 275 :
[2012] 5 SCR 547 ; Hotel & Restaurant Assn. v. Star
India (P) Ltd. (2006) 13 SCC 753 : [2006] 9 Suppl.
 SCR 602 - relied on.
Petroleum and Natural Gas Regulatory Board v.
Indraprastha Gas Ltd. (2015) 9 SCC 209 : [2015] 7
SCR 215 - held inapplicable
2. At no stage is content of a TV channel sought to be
regulated, and that pricing relating to TV channels laid down in
the Regulation and Tariff Order is a balancing act between the
rights of broadcasters and the interests of consumers, which has
not been impugned on the ground that any right or fundamental
right is violated, but only on the ground that the Regulation
as well as the Tariff Order are outside the "jurisdiction"
of TRAI. The power under Section 36(1) of the Act is very
wide and not constricted by the provisions of Section 11.
[Para 30, 32][178-F-G; 179-C]
BSNL v. TRAI (2014) 3 SCC 222 : [2013] 12 SCR 999 ;
Hotel & Restaurant Assn. v. Star India (P) Ltd. (2006)
13 SCC 753 : [2006] 9 Suppl. SCR 602 - relied on.
3. Both the Regulation as well as the Tariff Order have
been the subject matter of extensive discussions between TRAI,
all stake holders and consumers, pursuant to which most of the
suggestions given by the broadcasters themselves have been
accepted and incorporated into the Regulation and the Tariff
Order. The Explanatory Memorandum shows that the focus of
the Authority has always been the provision of a level playing
field to both broadcaster and subscriber. For example, when high
discounts are offered for bouquets that are offered by the
broadcasters, the effect is that subscribers are forced to take
bouquets only, as the a-la-carte rates of the pay channels that are
found in these bouquets are much higher. This results in perverse
pricing of bouquets vis-à-vis individual pay channels. In the
process, the public ends up paying for unwanted channels, thereby
blocking newer and better TV channels and restricting
subscribers' choice. It is for this reason that discounts are capped.
While doing so, however, full flexibility has been given to
broadcasters to declare the prices of their pay channels on an aSTAR INDIA PVT. LTD. v. DEPARTMENT OF INDUSTRIAL
POLICY AND PROMOTION
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la-carte basis. The Authority has shown that it does not encroach
upon the freedom of broadcasters to arrange their business as
they choose. Also, when such discounts are limited, a subscriber
can then be free to choose a-la-carte channels of his choice. Thus,
the flexibility of formation of a bouquet, i.e., the choice of channels
to be included in the bouquet together with the content of such
channels, is not touched by the Authority. It is only efforts aimed
at thwarting competition and reducing a-la-carte choice that are,
therefore, being interfered with. Equally, when a ceiling of INR
19 on the maximum retail price of pay channels which can be
provided as a part of a bouquet is fixed by the Authority, the
Authority's focus is to be fair to both the subscribers as well as
the broadcasters. INR 19 is an improvement over the erstwhile
ceiling of INR 15.12 fixed by the earlier regulation which nobody
has challenged. To maintain the balance between the subscribers'
interests and broadcasters' interests, again the Authority makes
it clear that broadcasters have complete freedom to price channels
which do not form part of any bouquet and are offered only on an
a-la-carte basis. As market regulator, the Authority states that
the impugned Regulation and Tariff Order are not written in stone
but will be reviewed keeping a watch on the developments in the
market. Therefore, the Regulation and the Tariff Order have
been made keeping the interests of the stakeholders and the
consumers in mind and are intra vires the regulation power
contained in Section 36 of the TRAI Act. [Para 37][189-C-H;
190-A-C]
Entertainment Network (India) Ltd. v. Super Cassette
Industries Ltd. (2008) 13 SCC 30 : [2008] 9 SCR 165
- referred to
4. The interest of the end user or consumer is not the focus
of the Copyright Act at all. On the other hand, the TRAI Act has
to focus on broadcasting services provided by the broadcaster
that impact the ultimate consumer. The focus, therefore, of TRAI
is that of a regulatory authority, which looks to the interest of
both broadcaster and subscriber so as to provide a level playing
field for both in which regulations can be laid down which affect
the manner and carriage of broadcast to the ultimate consumers.
Once the relative scope of both the enactments is understood,
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there can be no difficulty in stating that the two Acts operate in
different fields. The broadcaster is free to provide whatever
content he chooses for the TV channels that he chooses to
transmit to the ultimate consumer. The broadcaster is free to
arrange pricing of his TV channels so long as they are nondiscriminatory and do not otherwise have the effect of
unreasonably restricting the choice of a subscriber to choose
bouquet or a-la-carte channels. The impugned Regulation and
Tariff Order have been passed by a regulatory authority after
applying its mind to the objections of the various stakeholders
involved aftqer which the Regulation and Tariff Order have been
laid down which have, by and large, been initially acceded to by
the broadcasters themselves. In this view of the matter, the
Copyright Act will operate within its own sphere, the broadcaster
being given full flexibility to either individually or in the form of a
society charge royalty or compensation for the three kinds of
copyright. TRAI, while exercising its regulatory functions under
the TRAI Act, does not at all, in substance, impinge upon any of
these rights, but merely acts, as a regulator, in the public interest,
of broadcasting services provided by broadcasters and availed of
by the ultimate consumer. [Paras 63, 64][210-F-H; 211-A-E]
5. Both the Copyright Act as well as the TRAI Act are
central enactments which do not expressly provide that the one
overrides the other. In this situation, a basic principle of
interpretation of statutes is that both Acts be harmonized in the
event of any clash/conflict between the two so that both may be
given effect to. Since the Telegraph Authority, acting under the
Telegraph Act and the Indian Wireless Telegraphy Act, is required
to act in public interest, the jurisdiction of the said Authority is
left untrammeled by the provisions of the TRAI Act. It can thus
be seen that TRAI and the Telegraph Authority both act in public
interest. The TRAI Act, the Telegraph Act and the Indian
Wireless Telegraphy Act, being statutes in pari materia, form a
Code, insofar as wireless telegraphy and broadcasting is
concerned. If in exercise of its regulatory power under the TRAI
Act, TRAI were to impinge upon compensation payable for
copyright, the best way in which both statutes can be harmonized
is to state that, the TRAI Act, being a statute conceived in public
interest, which is to serve the interest of both broadcasters and
STAR INDIA PVT. LTD. v. DEPARTMENT OF INDUSTRIAL
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consumers, must prevail, to the extent of any inconsistency, over
the Copyright Act which is an Act which protects the
property rights of broadcasters. Therefore, to the extent
royalties/compensation
payable
to
the
broadcasters
under the Copyright Act are regulated in public interest by TRAI
under the TRAI Act, the former shall give way to the latter.
[Paras 65, 66, 67][211-F-G 212-B-E]
Star India Pvt. Ltd. v. TRAI (2018) 146 DLT 455 ;
Secretary, Ministry of Information & Broadcasting,
Govt. of India & Ors. v. Cricket Association of Bengal
(1995) 2 SCC 161 : [1995] 1 SCR 1036 ; Deepak
Theater v. State of Punjab 1992 Supp (1) SCC 684 :
[1991] 3 Suppl. SCR 242 ; Cellular Operators Assn.
of India v. TRAI (2016) 7 SCC 703 : [2016] 9 SCR 1 -
relied on
Case Law Reference
[2015] 7 SCR 215
held inapplicable
Para 6
(2018) 146 DLT 455
relied on
Para 8
[1995] 1 SCR 1036
relied on
Para 12
[1991] 3 Suppl. SCR 242
relied on
Para 20
[2013] 12 SCR 999
relied on
Para 21
[2016] 9 SCR 1
relied on
Para 22
[2012] 5 SCR 547
relied on
Para 31
[2006] 9 Suppl. SCR 602
relied on
Para 32
[2008] 9 SCR 165
referred to
Para 60
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 73267327 of 2018.
From the Judgment and Order dated 02.03.2018 & 23.05.2018
of the High Court of Judicature at Madras in Writ Petition Nos. 44126
and 44127 of 2016.
With
Civil Appeal Nos. 7328-7329/2018.
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P. S. Narasimha, Vikramjit Banerjee, ASGs, P. Chidambaram,
Dr. A. M. Singhvi, Neeraj Kishan Kaul, Gopal Jain, Rakesh Dwivedi,
Vikas Singh, K. V. Vishwanathan, Krishnan Venugopal, Ramji Srinivasan,
Shyam Diwan, Sr. Advs., Saikrishna, R. N. Karanjawala,
Ms. Ruby Singh Ahuja, Siddharth Chopra, Ms. Sneha Jain,
Utsav Trivedi, Swikirti Singhania, Utkarsh Maria, Mrs. Manik
Karanjawala, Abhishek Singhvi, Ms. Gitanjali Miriam, Sanjit Ranjan,
Samar Singh Kachwaha, Chanan Parwani for M/s. Karanjawala & Co.,
Sanjay Kapur, Saket Singh, Ms. Sheena Taqui, Ms. Megha Karnwal,
Ms. Mansi Kapur, Saif-ud-din Shams, S. S. Shamshery, Ms. Shraddha
Deshmukh, Anmol Chandan, V. C. Shukla, Rahul G. Tanwani,
Mohit Seth, Gurmeet Singh Makker, Jayant Mehta, Sukant Vikram,
Arjun Suresh, Nasir Hussain, Anshumaan Sahni, Abhinav Ankit,
Dhananjay Bhaskar Rai, Venkataraman R., Tuba Mohdi, Abhinav Ankit,
Vibhu Tiwari, Sumit R. Sharma, Anshuman Sharma, Vivek Sarin,
Ms. Anamika Jha, Satish C. Kaushik, Ms. Aakarshan Aditya,
Balraj Dewan, Ms. Liz Mathew, Ms. Garima Prashad, Mohit Paul,
Anugrah Niraj Ekka, Obhirup Ghosh, Viveak Ranjan, Tejveer Bhatia,
Rohan Swarup, Kunal Vats, Gaurav Sharma, Harpreet Singh Sandhu,
Vikram Singh, Ms. Bhanu Pant, Abhishek Malhotra, Ms. Niyati Asthana,
Renjit B. Marar, A. Karthik, Advs. for the appearing parties..
The Judgment of the Court was delivered by
R. F. NARIMAN, J.
1. The present civil appeals raise a challenge to certain clauses
of the Telecommunication (Broadcasting and Cable) Services
Interconnection (Addressable Systems) Regulations, 2017 (hereinafter
referred to as the "Regulation") notified on 3.3.2017 and the
Telecommunication (Broadcasting and Cable) Services (Eighth)
(Addressable Systems) Tariff Order, 2017 (hereinafter referred to as
the "Tariff Order") dated 3.3.2017 made under the Telecom Regulatory
Authority of India Act, 1997 (hereinafter referred to as the "TRAI Act").
Since regulations made under the TRAI Act were under challenge, a
writ petition was filed before the Madras High Court in which the main
issues that arose before the Division Bench were as follows:-
a. Whether the Telecom Regulatory Authority of India (hereinafter
referred to as "TRAI") has the power to regulate only the 'means
of transmission', viz. the 'carriage' aspect of broadcasting, and
STAR INDIA PVT. LTD. v. DEPARTMENT OF INDUSTRIAL
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does not have the power to regulate the 'content' of the broadcast
(i.e. the channel and/or its constituent programmes)?
b. Whether the impugned clauses, in fact, and in effect, regulate
the content of the broadcast (i.e. the channel and/or its constituent
programmes)?
c. Whether the impugned clauses have a direct effect on the pricing
and marketing of a television channel by the broadcaster and hence
is an illegal interference with the content of the broadcast (i.e. the
channel and/or its constituent programmes)?
The appellants have contended that the impugned clauses have
the effect of regulating programmes and television channels, their pricing
and their marketing and manner of offering/ bundling in the following
illustrative manner, which is beyond the scope of TRAI's jurisdiction of
regulating "means of transmission":
a. TRAI has effectively fixed a uniform maximum retail price for
each TV channel at INR 19/-;
b. TRAI has stipulated that a television channel, which is
individually priced at more than INR 19/- cannot be included in a
collection of television channels (commonly referred to as a
"bouquet") and can only be offered on an individual/ a-la-carte/
stand-alone basis;
c. TRAI has stipulated that the price of a bouquet of television
channels shall not be less than 85% of the sum of a-la-carte prices
of television channels comprised in the bouquet;
d. TRAI has stipulated that the sum of discount on television
channels and the distribution fee paid by broadcasters to a
distributor of television channels, cannot exceed 35% of the
maximum retail price of the television channel;
e. Television channels cannot be priced differently for different
distribution platforms;
f. Channels of one broadcaster cannot be offered by another
broadcaster in their bouquet of television channels, even after
obtaining due authorization;
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g. Promotional schemes (i) can only be offered on a-la-carte prices
for offering television channels and not on bouquet prices, (ii)
cannot exceed 90 days at a time, and (iii) can be offered only
twice in a year;
h. High definition and standard definition channels cannot be in
the same bouquet of television channels;
i. Pay channels and free to air channels cannot be in the same
bouquet.
2. The Division Bench consisting of M. Sundar, J. and Chief Justice
Indira Banerjee differed in their conclusions. As per M. Sundar, J., it
was held:-
"8(a). Owing to the narrative, discussion and all that have been
set out supra, those of the impugned provisions in the said
regulations and said tariff order which touch upon content of the
programmes of broadcasters are liable to be struck down as not
in conformity with the parent Act / plenary Act. Therefore, clauses
6(1), second proviso to 6(1), proviso to 7(2), 7(4), first proviso to
7(4) and 10(3) of the said Regulations and clauses 3(1), 3(2)(b),
second proviso to 3(2)(b), first proviso to 3(3), second proviso to
3(3), third proviso to 3(3), fourth proviso to 3(3), fifth proviso to
3(3), sixth proviso to 3(3) and 3(4) of the said tariff order are
struck down as not in conformity with the parent act, i.e., TRAI
Act.
8(b). With regard to the other two impugned provisions, as we
were given to understand in the course of the hearing that they
are relevant and necessary for some other clauses also other than
those which have been put in issue in the instant writ petitions,
they deserve to be saved to the extent they survive and serve the
purpose other than serving implementation or any other purpose
of the provisions which we have struck down. Therefore, the
other impugned provisions, i.e., clause 11(2) in the said Regulations
as also clause 4(2) in the said tariff order will continue to be in the
books, but cannot be pressed into service for anything to do with
the provisions which we have struck down supra. In other words,
these provisions, i.e., clause 11(2) in the said Regulations as also
clause 4(2) in the said tariff order can be operated if it can be
operated for other provisions of the said Regulations and said
tariff order, other than those which we have struck down."
STAR INDIA PVT. LTD. v. DEPARTMENT OF INDUSTRIAL
POLICY AND PROMOTION [R. F. NARIMAN, J.]
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3. Differing from M. Sundar, J., the learned Chief Justice held:-
"69. I am unable to agree with the conclusion of M. Sundar, J.
that the provisions of the impugned Regulation and the impugned
Tariff Order are not in conformity with the TRAI Act. In my
view the impugned provisions neither touch upon the content of
programmes of broadcasters, nor liable to be struck down.
However, the clause putting cap of 15% to the discount on the
MRP of a bouquet is arbitrary. The said provision is, in my view,
not enforceable. In my considered view, the challenge to the
impugned Regulation and the impugned Tariff Order fail.
70. Since we have not been able to agree, the writ petitions may
be placed before a third Judge. Since the Chief Justice has
delivered the dissenting judgment, the matter may be placed before
the next available Judge in order of seniority for nomination of the
Judge before whom the matter may be placed."
4. The third Judge who therefore resolved the controversy in
favour of the present respondents was M.M. Sundresh, J. After an
exhaustive analysis of the arguments and the Acts in question, the third
learned Judge sided with the Hon'ble Chief Justice and held:-
"27.1. In her short, yet clear decision, the Hon'ble Chief Justice
has held that there is sufficiency of the power under the TRAI
Act as against the Indian Copyright Act, 1957. They travel in
their respective paths, not intended to cross. The scope of the
amendments made in the year 2012 along with Section 37 was
correctly dealt with. This Court is of the view that the Copyright
Act has rightly taken note of being the one which gives succour
to the copyright holder as against the licensee, who may also be a
BRR holder. It was rightly held that the provisions deal with the
protection of the right of the copyright holder. It is rather pertinent
to keep in mind the discussion on the Copyright Act, 1957, which
is to be seen contextually qua the issue i.e., field being occupied.
This Court also does not find anything wrong with the finding
given on the so called concession given by the learned counsel for
the TRAI being inconsequential, as the very jurisdiction of the
Act itself was taken for consideration. The finding has to be seen
contextually along with the other issues including the overall stand
taken in the counter affidavit of respondents 1 to 4. Similarly the
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self imposed restrictions while invoking the extraordinary
jurisdiction under Article 226 of the Constitution of India, deserves
to be concurred with.
27.2. Though a submission has been made on the decision arrived
at with respect to the fixation of cap at 15% discount on the MRP
of the bouquet and the discounts given under the tariff order, the
aforesaid decision cannot be a ground to hold that the ultimate
conclusion arrived at on the other issues would necessarily follow
suit. After all, as a reference Court, this Court is concerned with
the views expressed by either of the learned Judges on the points
of difference. Accordingly, the dissenting judgment stands
concurred.
28. In the result, this reference qua points of difference stands
ordered concurring with the dissenting judgment. No costs."
5. Dr. A.M. Singhvi, learned Senior Advocate appearing on behalf
of the appellants, has referred to several statutes and judgments in the
course of his detailed submissions. According to the learned Senior
Advocate, the TRAI Act was amended in 2000, as a result of which the
TRAI Act was extended to broadcasting services which were undefined.
By a Central Government notification dated 9.1.2004, the TRAI Act
was expressly extended to broadcasting services, and certain functions
were allocated to TRAI in addition to those contained in Section 11(1)(a)
of the TRAI Act, as also to specify norms and periodicity of revision of
rates of pay channels. According to the learned Senior Advocate, the
definition of "telecommunication service" contained in Section 2(1)(k)
of the TRAI Act only enables TRAI to regulate transmission or reception
of broadcasting services, which essentially relates to regulatory measures
taken for carriage of these signals. According to the learned Senior
Advocate, his clients, namely, broadcasters, do not have to obtain the
permission of the Government of India for uplinking their programmes
with a particular satellite at a particular frequency, after which permission
has to be obtained for downlinking such channels. At this point, the
broadcaster, post downlinking, sends the signal to a multi-system operator
(hereinafter referred to as an "MSO"), who in turn sends the signal to a
cable TV operator from which it is beamed to the ultimate consumer
watching the television programmes. For this, the broadcasters pay a
distribution fee and a carriage fee for transportation of such signal, then
send the signals to the MSO, who in turn sends it on to the cable TV
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operator, who beams the signal to the ultimate consumer. Distribution
fee, carriage fee and networking capacity fee are all payable by the
broadcaster, with which the broadcaster can have no quarrel. Equally,
in a situation where direct to home services are provided, instead of the
MSO one has persons, like, for example, TATA Sky, who then beam the
signal directly to the consumer via satellite. TRAI under the TRAI Act
cannot restrict pricing, bundling or packaging done by the broadcaster,
as TRAI's functions kick in under the Cable Television Networks
(Regulation) Act, 1995 (hereinafter referred to as the "Cable TV Act")
only after the signal reaches the Cable TV operator. According to the
learned Senior Advocate, at a stage anterior to the Cable TV operator
beaming signals to the consumers, the broadcasters' rights are not covered
by the TRAI Act, which regulates only carriage, but by the Copyright
Act, 1957, which regulates content. Dr. Singhvi took us through the
Statement of Objects and Reasons for the TRAI Act, the Preamble
thereof, and in particular Sections 2(1)(k), 11 and 36, to contend that this
Act is "carriage-centric", and is thus limited to regulation of service in
transmission alone and does not extend to or include the subject matter
or content of the transmission. The Copyright Act, on the other hand, is
"content-centric" and deals with intellectual property rights which
broadcasters have in the form of both copyright, as well as broadcast
reproduction right inter alia under Section 37 of the Copyright Act. He
relied heavily on the 2012 amendment to the Copyright Act, and in
particular on Chapter 8 of the said Act. According to him, tariff, which
relates to content, is governed by the Copyright Act and not by the TRAI
Act, whereas transmission and delivery to the consumer, namely, carriage,
alone pertains to TRAI's jurisdiction. According to him, the impugned
clauses of the Regulation as well as the Tariff Order impact and have
the effect of regulating pricing and terms and conditions of licensing of
TV channels, including their packaging, bundling and other manner of
offering the said channels and their underlying programmes, being films,
TV shows, etc., which are all aspects of intellectual property rights
covered by the Copyright Act. He relied heavily upon the Sports
Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act, 2007
(hereinafter referred to as the "Sports Act"), by way of contrast, and
stated that in this Act the definitions of "broadcaster", "broadcasting",
"broadcasting service" and "content" made it clear that the reach of this
Act was not merely confined to transmission of signal but extended to
content as well, and argued that the difference therefore in the definitions
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contained in the Sports Act would show that the reach of the TRAI Act
in contrast was limited and did not go to content. He also relied strongly
upon the Cable TV Act and in particular on the definitions of "broadcaster"
and "cable operator" therein, as well as Section 4A and 5 thereof, read
with the Rules framed thereunder, which would show that "content"
could certainly be regulated by TRAI under the Sports Act, but only in
the manner provided by that Act and from the stage of the cable TV
operator to the consumer and not before. It is thus clear that this being
the case, the aforesaid regulations are outside the power of TRAI under
the TRAI Act and must thus be struck down.
6. Shri P. Chidambaram, learned Senior Advocate appearing on
behalf of some of the appellants, argued in support of Dr. Singhvi. He
referred, in particular, to the definitions contained in Sections 2(dd) and
2(ff) of the Copyright Act and stated that "broadcast" would only mean
keeping in readiness a set of TV channels, which may or may not be
further carried by the MSO of the Cable TV Operator. According to
him, in substance, the impugned Regulation and Tariff Order went beyond
the jurisdiction of TRAI under the TRAI Act in that they sought to regulate
"content" which would mean the original work such as a book, which
could then be made into a film and finally broadcast by the appellants.
Anything which impinges upon the aforesaid "content" in terms of making,
buying, packaging or marketing, including licensing and assignment, would
directly be covered by the Copyright Act and would, therefore, be outside
the jurisdiction of the TRAI Act. He also strongly relied upon the judgment
of this Court in Petroleum and Natural Gas Regulatory Board v.
Indraprastha Gas Ltd., (2015) 9 SCC 209, to state that in a parallel
fact circumstance, no tariff could be fixed by the Board for the commodity
in question, but only for carriage of the said commodity through pipelines.
7. Shri Rakesh Dwivedi, learned Senior Advocate appearing on
behalf of TRAI, countered each of these submissions. According to the
learned Senior Advocate, a reading of the TRAI Act, together with the
Statement of Objects and Reasons, would show that it was an Act
conceived in the public interest in order to protect the interests of both
service providers like the broadcasters here, as well as the consumers.
Interest of the consumers of broadcasting services is therefore one of
the paramount considerations when one comes to the authority or
jurisdiction of TRAI under the said Act. According to the learned Senior
Advocate, from the stage of the teleport from which a TV channel is
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uplinked by a broadcaster to a satellite and then downlinked to an MSO,
permissions of the Central Government have to be taken for both uplinking
and downlinking, under guidelines issued, which he took us through. The
said guidelines would show that content is certainly regulated at this
stage, as TV channels which are contrary to the security of the state,
for example, would not be allowed to be beamed. According to him,
regardless of whether the teleport from which the broadcaster's signal
is uplinked to a satellite is owned by the broadcaster, or is beamed by a
person other than the broadcaster, a licence under Section 4 of the
Telegraph Act and Section 5 of the Wireless Telegraphy Act is a sine
qua non for operating a teleport and that therefore it is wholly fallacious
to say that broadcasters need not be licencees under the Telegraph Act
when they broadcast signals, either from their own teleport, or in
conjunction with the owner of a teleport, which reach the ultimate
consumer in India. According to the learned Senior Advocate, therefore,
a constricted reading of the TRAI Act would stultify the nature of the
beneficial legislation contained therein, which is to look after consumer
interests as well. It is clear therefore that the definition of
"telecommunication service" in Section 2(1)(k) cannot be read in the
manner suggested by Dr. Singhvi, and would include, when it comes to
broadcasters, beaming and transmission of signals from the teleport
onwards right up till the stage of the MSO and the cable TV operator
thereafter. He stressed upon Section 11(1)(b) in particular and stated
that in order to ensure effective interconnection between different service
providers, it was necessary to lay down regulations made under Section
36 of the Act that balanced the interest of broadcasters with the interest
of consumers. He was at pains to point out that at no stage does either
the Regulation or the Tariff Order seek to regulate, directly or indirectly,
the content of the matter contained in the television channel that is beamed.
As an example, he stated that neither the Regulation nor the Tariff Order
interferes with what could be beamed by the broadcaster, but only to the
manner of such beaming, keeping the interest of both the broadcaster as
well as the ultimate consumer in mind. He also took us through the
consultation papers which preceded the draft regulation which was
framed, and pointed out that most of what was contained in the impugned
Regulation and Tariff Order, was either requested by the broadcasters
themselves or suggested by them to safeguard their interests, which
TRAI has in principle followed. What is interesting to note is that it was
only at a later stage, before the draft regulation was made, that references
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to content and the Copyright Act were made solely as an afterthought.
He also relied upon the Cable TV Act and stated that it was important to
note that it was the same regulator, namely, TRAI, who had to regulate
the same signal from broadcaster to MSO, MSO to Cable TV operator
and Cable TV operator to consumer. It would be extremely anomalous
to find that from Cable TV operator onwards regulations such as those
made by TRAI in the present case would pass muster, but not from the
stage of broadcaster to MSO and MSO to Cable TV operator. He
made it clear that the Sports Act would have no application in the present
case as it dealt with the compulsory broadcast of certain sports events
by broadcasters, which was why content was referred to in the said
Act. He reiterated that at no stage does TRAI seek to or in fact regulate
content of what is broadcasted so that any reference to this Act would
be wholly irrelevant for the purpose of deciding this case. He also strongly
relied upon Sections 3AA and 4 of the Telegraph Act to buttress his
submission. According to him, since the Copyright Act operates in a
distinct and separate field from the TRAI Act, equally the red herring of
the Copyright Act would have no real relevance to the powers and
functions of TRAI acting under the TRAI Act. He also cited certain
decisions which will be referred to later in this judgment.
8. Shri Vikas Singh, learned Senior Advocate also appearing on
behalf of TRAI, referred to Section 2(1)(k) of the TRAI Act in order to
explain that the main provision and the proviso had to be harmonised in
the manner suggested by the Delhi High Court in Star India Pvt. Ltd.
v. TRAI, (2018) 146 DLT 455, and that, so harmonised, it is clear that
the main provision did not include broadcasting services only for the
time being. The proviso which was added by the Amendment Act of
2000 made it clear that the time had come to include broadcasting services
as well. He further argued that the appellants in the present case had
been taking contradictory stands throughout. As an example of such
stand, he referred to an Order of the Competition Commission of India
dated 27.2.2018, in which he referred to the stand of the appellants
stating that the Competition Commission had no jurisdiction to look into
pricing and the manner of offering TV channels, which lies in the domain
of the sectoral regulator TRAI and is, therefore, an occupied field. He
also referred to how the analogue system led to great leakages which
led to less revenue and how the movement towards digitisation, therefore,
gave broadcasters a great fillip in their revenue. He also referred to the
consultations that went on between all stakeholders and consumers which
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led up to the impugned Regulation, which was a Regulation which
balanced the interests of broadcasters and consumers.
9. Shri K.V. Vishwanathan, learned Senior Advocate appearing
on behalf of the multi-system operators, placed strong reliance on
Regulations 3(1) and 3(2) of the impugned Regulation, which, according
to him, have not been challenged by the appellants. These regulations
make it clear that the broadcasters have to offer TV channels on a nondiscriminatory basis.