'Court Cannot Rewrite Statutory Language' : Supreme Court Sets Aside Madras HC Order Reading Down Advance Notice Condition For Broadcasters Under Rule 29(4) Of Copyright Rules

The Supreme Court set aside an interim order passed by the Madras High Court in a writ petition filed by some broadcasters/FM Radios challenging Rule 29(4) of Copyright Rules, 2013.

"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.", the bench of Justice DY Chandrachud and BV Nagarathna observed in the case Saregama India Limited vs. Next Radio Limited & Ors.

Copyright Rules

Section 31D deals with statutory licence for broadcasting of literary and musical works and sound recording. 

Under sub-section (1) of Section 31D, a broadcasting organization which is desirous of communicating to the public by way of a broadcast or performance of a literary or musical work and sound recording which has already been published, may do so subject to compliance of five requirements, namely: (i) a prior notice; (ii) in the manner prescribed; (iii) of the intention to broadcast the work; (iv) stating the duration and territorial coverage of the broadcast; and (v) payment to the owner of rights in each work royalties in the manner and at the rate fixed by the Appellate Board.

Rule 29 deals with the notice to owner for communication to the public of literary and musical works and sound recordings. Sub clause (4) provides that the notice shall contain the following particulars: (a) Name of the channel; (b) Territorial coverage where communication to public by way of radio broadcast, television broadcast or performance under sub-rule (3) is to be made; (c) Details necessary to identify the work which is proposed to be communicated to the public by way of radio broadcast, television broadcast or performance under sub-rule (3); (d) Year of publication of such work, if any; (e) Name, address and nationality of the owner of the copyright in such works; (f) Names of authors and principal performers of such works; (g) Alterations, if any, which are proposed to be made for the communication to the public by way of radio broadcast, television broadcast or performance 

Challenge to the validity of Rule 29(4)

Before the Madras High Court, the validity of Rule 29(4) was challenged by certain broadcasters/ FM Radio on the ground that it (i) violates Article 19(1)(a) of the Constitution; and (ii) is ultra vires Section 31D of the Act. The High Court, in its interim order observed that the duty which is cast on broadcasters in the notice to broadcast under Rule 29(1) is "apparently onerous".

"Prima facie, there appears to be an element of unworkability about the Rule in that it may be seen to be almost claustrophobic in its operation and leaving very little room for flexibility. Indeed, the very concept of speaking or performing ad lib, which is the essence of spontaneity in any live speech or live performance, would be lost if pre-planned details, down to the every second of the programme must be disclosed as the impugned Rule may be read to imply",  the High Court had observed.

The High Court had issued the following directions:

(i) No copyrighted work may be broadcast in terms of Rule 29 without issuing a prior notice; 
ii) Details pertaining to the broadcast, particularly the duration, time slots and the like, including the quantum of royalty payable may be furnished within fifteen days of the broadcast or performance;
(iii) Compliance be effected with a modified regime of post facto, as opposed to prior compliance mandated by Rule 29(4) and the statutory mandate of a twenty four hour prior notice shall be substituted by a provision for compliance within fifteen days after the broadcast;
(iv) The interim order will be confined to the petitioners before the High Court and the copyrighted works of the second and third respondents which are sought to be exploited.

Appeal before Apex Court

Before the Apex Court, challenging this interim order, it was contended that the interim order amounts to re-writing Rule 29(4) of the Rules framed in pursuance of the provisions of Section 31D and Section 78(2)(cD) of the Copyright Act 1957. The court noted that 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. The court made the following observations:

Craftsmanship on the judicial side cannot transgress into the legislative domain by re-writing the words of a statute

"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.", the court observed.

An exercise of judicial redrafting of legislation or delegated legislation cannot be carried out.

21....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."

The court observed that an exercise of judicial re-drafting of Rule 29(4) was unwarranted, particularly at the interlocutory stage.

22...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.", the court said while allowing the appeal.

The court clarified that it has not expressed any opinion on the merits of the rival submissions regarding validity of Rule 29(4).

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