Case: Saregama India Limited Vs. Next Radio Limited &amp; Ors

month and even inspection of records is furnished to copyright owners; and (vii) Whereas Section 31D provides for only the duration and territorial coverage of the intended broadcast, the notice which has been prescribed by Rule 29(4) has gone far beyond the statutory ambit of Section 31D and is ultra vires for that reason. 19. While counsel appearing on behalf of the contesting parties have addressed submissions on merits, we would desist from expressing any opinion on the constitutional challenge which is pending consideration before the High Court of Judicature at Madras where, as noted earlier, the writ petitions are slated for final disposal on 4 October 2021. 20. At this stage, the issue is whether the interim order of the High Court can be sustained. Essentially, as the narration in the earlier part of this judgment would indicate, the High Court has substituted the provisions of Rule 29(4) with a regime of its own, which is made applicable to the broadcasters and the petitioners before it. A Constitution Bench of this Court in In Re: Expeditious Trial of Cases Under Section 138 of NI Act 1881(Suo Motu Writ Petition (Crl.) No. 2 of 2020, 16 April 2021, available at https://main.sci.gov.in/supremecourt/2020/9631/9631_2020_31_501_27616_Judgement_16-Apr2021.pdf) has emphasized that the judiciary cannot transgress into the domain of policy making by re-writing a statute, however strong the temptations maybe. This Court observed: 20. Conferring power on the court by reading certain words into provisions is impermissible. A judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policy-making might wisely suggest, construction must eschew interpolation and evisceration. He must not read in by way of creation. The Judges duty is to interpret and apply the law, not to change it to meet the Judges idea of what justice requires. The court cannot add words to a statute or read words into it which are not there. It is a settled principle of law that when the words of a statute are clear and unambiguous, it is not permissible for the court to read words into the statute. A Constitution Bench of this Court in Padma Sundara Rao v State of Tamil Nadu (2002) 3 SCC 533 has observed: 12. …The court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in the statute is determinative factor of legislative intent. The first and primary rule of construction is that the intention of the legislation must be found in the words used by the legislature itself. The question is not what may be supposed and has been intended but what has been said. ….. 14. While interpreting a provision the court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. 21. The court is entrusted by the Constitution of the power of judicial review. In the discharge of its mandate, the court may evaluate the validity of a legislation or rules made under it. A statute may be invalidated if is ultra vires constitutional guarantees or transgresses the legislative domain entrusted to the enacting legislature. Delegated legislation can, if it results in a constitutional infraction or is contrary to the ambit of the enacting statute be invalidated. However, the court in the exercise of judicial review cannot supplant the terms of the provision through judicial interpretation by re-writing statutory language. Draftsmanship is a function entrusted to the legislature. Craftsmanship on the judicial side cannot transgress into the legislative domain by re-writing the words of a statute. For then, the judicial craft enters the forbidden domain of a legislative draft. That precisely is what the Division Bench of the High Court has done by its interim order. Section 31D(2) speaks of the necessity of giving prior notice, in the manner as may be prescribed, of the intention to broadcast the work stating the duration and the territorial coverage of the broadcast, together with the payment of royalties in the manner and at the rates fixed by the Appellate Board. While the High Court has held the broadcasters down to the requirement of prior notice, it has modified the operation of Rule 29 by stipulating that the particulars which are to be furnished in the notice may be furnished within a period of fifteen days after the broadcast. The interim order converts the second proviso into a routine procedure instead of an exception (as the High Court has described its direction). This exercise by the High Court amounts to re-writing. Such an exercise of judicial redrafting of legislation or delegated legislation cannot be carried out. The High Court has done so at the interlocutory stage. 22. We are, therefore, clearly of the view that an exercise of judicial re-drafting of Rule 29(4) was unwarranted, particularly at the interlocutory stage. The difficulties which have been expressed before the High Court by the broadcasters have warranted an early listing of the matter and this Court has been assured by the copyright owners that they would file their counter affidavits immediately so as to facilitate the expeditious disposal of the proceedings. That having been assured, we are of the view that an exercise of judicial re-writing of a statutory rule is unwarranted in the exercise of the jurisdiction under Article 226 of the Constitution, particularly in interlocutory proceedings. The High Court was also of the view that the second proviso may be resorted to as a matter of routine, instead of as an exception and that the ex post facto reporting should be enlarged to a period of fifteen days (instead of a period of twenty four hours). Such an exercise was impermissible since it would substitute a statutory rule made in exercise of the power of delegated legislation with a new regime and provision which the High Court considers more practicable.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]19. While counsel appearing on behalf of the contesting parties have addressed submissions on merits, we would desist from expressing any opinion on the constitutional challenge which is pending consideration before the High Court of Judicature at Madras where, as noted earlier, the writ petitions are slated for final disposal on 4 October 2021.A Constitution Bench of this Court in In Re: Expeditious Trial of Cases Under Section 138 of NI Act 1881(Suo Motu Writ Petition (Crl.) No. 2 of 2020, 16 April 2021, available at https://main.sci.gov.in/supremecourt/2020/9631/9631_2020_31_501_27616_Judgement_16-Apr2021.pdf) has emphasized that the judiciary cannot transgress into the domain of policy making by re-writing a statute, however strong the temptations maybe. This Court observed:20. Conferring power on the court by reading certain words into provisions is impermissible. A judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policy-making might wisely suggest, construction must eschew interpolation and evisceration. He must not read in by way of creation. The Judges duty is to interpret and apply the law, not to change it to meet the Judges idea of what justice requires. The court cannot add words to a statute or read words into it which are not there.It is a settled principle of law that when the words of a statute are clear and unambiguous, it is not permissible for the court to read words into the statute. A Constitution Bench of this Court in Padma Sundara Rao v State of Tamil Nadu (2002) 3 SCC 533   has observed:12. …The court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in the statute is determinative factor of legislative intent. The first and primary rule of construction is that the intention of the legislation must be found in the words used by the legislature itself. The question is not what may be supposed and has been intended but what has been said.14. While interpreting a provision the court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary.22. We are, therefore, clearly of the view that an exercise of judicial re-drafting of Rule 29(4) was unwarranted, particularly at the interlocutory stage. The difficulties which have been expressed before the High Court by the broadcasters have warranted an early listing of the matter and this Court has been assured by the copyright owners that they would file their counter affidavits immediately so as to facilitate the expeditious disposal of the proceedings. That having been assured, we are of the view that an exercise of judicial re-writing of a statutory rule is unwarranted in the exercise of the jurisdiction under Article 226 of the Constitution, particularly in interlocutory proceedings. The High Court was also of the view that the second proviso may be resorted to as a matter of routine, instead of as an exception and that the ex post facto reporting should be enlarged to a period of fifteen days (instead of a period of twenty four hours). Such an exercise was impermissible since it would substitute a statutory rule made in exercise of the power of delegated legislation with a new regime and provision which the High Court considers more practicable.