Case: Union of India (UOI) and Ors Vs. Board of Control for Cricket in India and Ors

Live telecast of all major cricketing events, domestic and international, is beamed to millions of homes in the country. Telecasting/Broadcasting rights are leased out by the organizing body i.e. Board of Control for Cricket in India (hereinafter referred as the BCCI) through competitive bidding. These signals (live feeds) are transmitted to millions of Indian homes by the Doordarshan; cable operators and Direct-to-Home (DTH) operators. The rights of these entities in respect of the live telecast of major cricketing events in the country and the consequential revenue implications are the core issues arising in these groups of appeals which have been filed in the following circumstances.3. BCCI is the approved national level body holding virtually monopoly rights to organize cricketing events in the country. Grant of telecasting rights of these events is, therefore, a major source of revenue for the BCCI. There is currently in force a Media Rights Agreement by and between Star India Private Ltd. and BCCI effective from April 2012 till March 2018 under which Star India Private Limited [Respondent No. 4 in the Appeals arising out of Special Leave Petition (Civil) Nos. 4574-4575 of 2015] has been granted exclusive rights to telecast cricketing events that take place in the country during the currency of the period of the agreement.4. Star India Private Limited, in turn, has engaged ESPN Software Pvt. Ltd. [Respondent No. 3 in the Appeals arising out of Special Leave Petition (Civil) Nos. 4574-4575 of 2015] for distribution, inter alia, of the telecast of all cricketing events covered by the Media Rights Agreement.5. Under Section 3 of the Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act, 2007 [hereinafter referred to as the Sports Act, 2007], the Respondent Nos. 3 and 4 are obliged to share the live broadcasting signals of sporting events of national importance with the Prasar Bharati (which owns the erstwhile Doordarshans channels/networks) for retransmission of the same through its terrestrial and Direct-to-Home networks. The Respondents have no objection sharing the live feed to the above extent. In fact they have not challenged the vires/validity of Section 3 of the Sports Act, 2007.Such re-telecast of the signals received by the Prasar Bharati Under Section 3 of the Sports Act, 2007 by the Cable Operators flow from the operation of Section 8 of the Cable Television Networks (Regulation) Act, 1995 (hereinafter referred to as the Cable Act, 1995) which provision has been perceived to require Cable Operators to mandatorily carry in their cable service such Doordarshan channels that may be notified by the Central Government under the said Section 8 of the Cable Act. As DD 1(National) is one of the channels mandatorily required to be carried by the Cable Operators (due to its maximum reach) and the live telecast of cricketing events which the content rights owners/holder is obliged to share with Prasar Bharati Under Section 3 of the Sports Act, 2007 is retransmitted through the said Doordarshan channel i.e. DD 1(National) the cricketing events are telecast to millions of viewers by Cable Operators who otherwise charge the subscribers. By virtue of the aforesaid arrangement Cable Operators do not have to subscribe to the specific sports channels of the Respondents as they are getting the live feed of cricketing events free of cost.6. Not willing to accept the aforesaid perception of Section 3 of the Sports Act and the consequential position, the BCCI and its original assignee one Nimbus Communications Limited had moved the High Court of Delhi by way of Writ Petition (No. 7655 of 2007) seeking directions to the Prasar Bharati Broadcasting Corporation and the Union of India to encrypt Doordarshans Satellite Transportation Feed of live broadcasting signals of cricket matches organized by the BCCI to the Doordarshan Kendras and transmission towers throughout India for subsequent broadcasts on Doordarshans terrestrial and DTH networks. An appropriate declaratory relief to the effect that no television network, DTH network, Multisystem network or local cable operator can broadcast such events without a licence from the content rights owners/holder was also sought. The said writ petition (No. 7655 of 2007) was dismissed by the learned single judge of the High Court primarily on the ground that the matter relates to policy and, therefore, is beyond judicial reach and scrutiny. Aggrieved LPA No. 1327 of 2007 was filed before the High Court.7. Writ Petition (No. 8458 of 2007) was also filed initially by BCCI and its erstwhile assignee Nimbus for striking down Section 3 of the Sports Act, 2007 insofar as it relates to cricket test matches and also striking down the notification dated 13th September, 2000 issued by the Central Government notifying DD1 (National) channel and DD (News) channel as mandatory channels to be carried compulsorily by the Cable Operators. In the same writ petition (No. 8458 of 2007) the notifications dated 3rd July, 2007 and 19th October, 2007 notifying the sporting events mentioned therein in respect of cricket to be of national importance were also challenged. Also challenged is the order of the Government of India dated 29.05.2007 by which Clause 7.9 was added to the Licence Agreement of DTH Services. Clause 7.9 is in the following terms:The licencee shall carry or include in his DTH services the TV Channels which have been notified for mandatory and compulsory carriage as per the provisions of Section 8 of the Cable Television Networks (Regulation) Act, 1995 as amended, failing which the licensor shall be at liberty to take action as per Clause 20.1 of this Agreement.8. Subsequently, ESPN Software India Pvt. Ltd. and Star India Pvt. Ltd. had been impleaded as Petitioner Nos. 3 and 4 in the aforesaid writ petitions in view of Media Rights Agreement effective from April 2012 upto March 2018, as referred to above.9. The aforesaid appeal (LPA No. 1327 of 2007) and Writ Petition (No. 8458 of 2007) were allowed by the Division Bench by holding that on an interpretation of the provisions of Section 3 of the Sports Act, 2007 and Section 8 of the Cable Act, 1995 the signals received by Prasar Bharati from the Respondents should not be placed in the designated Doordarshan channels which are to be compulsorily carried by the Cable Operators Under Section 8 of the Cable Act, 1995. Aggrieved the present appeals have been filed by the Union of India, Prasar Bharati, Home Cable Network Private Limited and Sopan Foundation.

Court's reasoning:
It, therefore, appears that one of the main objectives behind the incorporation of Prasar Bharati is to provide an adequate coverage to sports and games for the purpose(s) already noticed.13. Specific notice would be required to be taken, in the light of the contentions advanced, which will be noticed later, of the provisions contained in Section 12(3)(c) of the Prasar Bharati Act, 1990 which enables the Prasar Bharati to negotiate for purchase of, or otherwise acquire, programmes and rights or privileges in respect of sports and other events, films, serials, occasions, meetings, functions or incidents of public interest for broadcasting and to establish procedures for the allocation of such programmes, rights or privileges to the services.Section 8 of the Cable Act, 1995 permits the Central Government to specify the names of Doordarshan channels or the channels operated by or on behalf of the Parliament which are required to be mandatorily carried by the Cable Operators. As already noticed, by notification dated 13th September, 2000, DD1 (National) channel and DD (News) channel and one regional channel have been notified as mandatorily required to be carried by the Cable Operators. There are certain subsequent notifications issued by the Ministry of Information and Broadcasting, Government of India Under Section 8(1) of the Cable Act, 1995, the subsisting one being dated 5th September, 2013. No specific notice of the aforesaid notification would be required to be taken as in substance and in law the position is no different.19. From the above, it can be noticed that Under Section 3 of the Sports Act, 2007, no content rights owner or holder and no television or radio broadcasting service provider can carry a live television broadcast on any cable or DTH network or radio commentary broadcast in India, of sporting events of national importance unless it simultaneously shares the live broadcasting signal, without its advertisements, with the Prasar Bharati to enable them to re-transmit the same on its terrestrial networks and Direct-to-Home networks in such manner and on such terms and conditions as may be specified.20. On the other hand, Section 8(1) of the Cable Act, 1995 carries a legislative mandate that every cable television operator is required to carry, on its network, such Doordarshan channels or channels operated by or on behalf of the Parliament, as may be notified by the Central Government in the Official Gazette.While the sweep of Article 19(1)(a) is certainly expansive to include receipt of information also, it is in the context of above argument of Shri Sibal that we may now recapitulate the short contention put forward with great force by Dr. Rajeev Dhavan, learned Senior Counsel. The same is to the effect that in the present case it is not the contention of BCCI that the provisions of Article 19(1)(g) of the Constitution have been violated. Insofar as the provisions of Article 19(1)(a) of the Constitution is concerned, Dr. Dhavan has contended that, at best, the present is a case where the slice of the cake becomes a little smaller; but that by no means would attract Article 19(1)(a) of the Constitution, it is argued. We agree with Dr. Dhavan.26. Proceeding further, we deem it necessary to clarify that for the present case it is not necessary and, therefore, we do not intend to go into the question raised by the parties with regard to the nature of the rights conferred by Section 37 of the Copyright Act, 1957 namely, whether the live telecast of a cricket match amounts to production of cinematograph film conferring on the author and its assignee the same inviolable rights that the provisions of the Copyright Act confer on a copyright holder. Rather, we are of the view that in the facts of the present case and to answer the issue arising therein it will suffice to acknowledge the existence of a right in the content rights owner/holder in the live feed of a cricket match or other sporting events of national importance.27. The Cable Act was enacted in the year 1995 to regulate the operation of cable television network which had come into India around that time. Cable television was a new experience for the Indian viewers who, overnight, had access to a large number of foreign channels carrying different kinds and forms of entertainment and information. While it is correct that some of the channels available on cable television network were Indianized in content, there was a apprehension, and perhaps justified, that the new trend and upsurge may make Doordarshan and its regional channels extinct resulting in dissemination of awareness on national issues. This is evident from the report of the Standing Committee to whom the Cable T.V. Network (Regulation) Bill 1993 was referred to. This is why Section 8 of the Cable Act, 1995 was enacted, namely, to obligate Cable TV operators to carry news and information concerning the developments of the country, Government Policies and other such related matters even to all such households who may have availed of cable services. In fact, transmission of Doordarshan channels by Cable Operators is always a complimentary part of any bouquet of services that a Cable Operator may make available to a consumer.28. On the other hand, the Sports Act, 2007 which is a later enactment had altogether a different object for its enactment, namely, to provide access to the largest number of listeners and viewers, on a free to air basis, of sporting events of national importance through mandatory sharing of sports broadcasting signals with Prasar Bharati and for maters connected therewith or incidental thereto. Section 3 of the Sports Act, 2007 is a significant provision to further the objective behind the enactment of the Sports Act, 2007. Though much argument has been advanced as to whether Section 3 of the Sports Act, 2007 is expropriatory in nature, we have no hesitation in holding the said provision of the Act to be of such a nature inasmuch as it curtails or abridges the rights of a content rights owner or holder and television or radio broadcasting service provider, as may be. Sharing of revenue between the content rights owner or holder and the Prasar Bharati envisaged by Section 3(2) of the Sports Act, 2007 would hardly redeem the situation to take the Sports Act, 2007 out of the category of expropriatory legislation. Section 3 of the Sports Act, 2007, therefore, has to be interpreted very strictly. Not only we do not find in the provisions of Section 3 of the Sports Act, 2007 any recognition of the requirement stipulated in Section 8 of the Cable Act, 1995, the plain language of the said provision i.e. Section 3 of the Sports Act, 2007 makes it clear that the obligation to share cast on the content rights owner or holder, etc. with Prasar Bharati is to enable the Prasar Bharati to transmit the same on its terrestrial and DTH networks. If the legislative intent was to allow Section 3 of the Sports Act, 2007 not to operate on its own language but to be controlled by Section 8 of the Cable Act, 1995, there would have been some manifestation of such intent either in Section 3 of the Sports Act, 2007 or in Section 8 of the Cable Act, 1995 (by an appropriate amendment thereto). In the absence of any such legislative intent it will only be correct to hold that Section 3 of the Sports Act, 2007 operates on its own without being controlled by any of the conditions or stipulations contained in Section 8 of the Cable Act, 1995. Any other view may have the effect of introducing a fragility in Section 8 of the Cable Act, a consequence that must surely be avoided.29. Section 8 of the Cable Act imposes an obligation on the Cable Operators to carry/transmit such Doordarshan channels or the channels operated by or on behalf of Parliament, as may be, notified in the Official Gazette. The legislature has not specified any particular channel which must be mandatorily carried by Cable Operators. The task has been left to the Central Government. It will, therefore, be not wrong to understand the obligation cast on Cable Operators to transmit the DD1 (National) channel and the transmission of Live feed of major sports events of national importance on the said channel by the Doordarshan as a matter of mere coincidence instead of a legislative mandate. Hypothetically, it is always open to the Central Government to denotify DD1 (National) from the notified channels in the notification Under Section 8 of the Cable Act. Surely, the effect and operation of Section 3 of the Sports Act cannot be left to be decided on the basis of the discretion of the Central Government to include and subsequently exclude or not to include at all the DD1 (National) channel in a notification to be published Under Section 8 of the Cable Act, 1995. Insofar as DTH network of private operators is concerned, the same does not even come under the operation of a Cable Operator.30. Needless to say our conclusions above do not, in any manner, impact or effect the rights of the Appellant Under Section 12(3)(c) of the Prasar Bharati Act which rights always remain available for exercise, if so desired.31. On the basis of the above discussions, we, therefore, come to the conclusion that Under Section 3 of the Sports Act, 2007 the live feed received by Prasar Bharati from content rights owners or holders is only for the purpose of re-transmission of the said signals on its own terrestrial and DTH networks and not to Cable Operators so as to enable the Cable TV operators to reach such consumers who have already subscribed to a cable network.