Supreme Court of India
SAREGAMA INDIA LIMITEDversusNEXT RADIO LIMITED & ORS.
- Citation
- 2021 INSC 554
- Decided
- 27 September 2021
- Disposal
- Appeal(s) allowed
- Bench
- D Y CHANDRACHUD
Holding
The High Court's interim order was an impermissible judicial rewriting of Rule 29(4) and was set aside.
Summary
The Madras High Court, in an interim order, altered Rule 29(4) of the Copyright Rules, 2013 by allowing broadcasters to furnish notice details within fifteen days after a broadcast and treating the 24‑hour exception as a routine procedure. Saregama India Ltd and other appellants challenged this order, arguing that the court had effectively rewritten clear statutory language. The Supreme Court examined whether such judicial modification of a delegated rule was permissible under Article 226. Relying on precedents that courts may not read into or expand statutory provisions, the Court held that the High Court’s order constituted impermissible judicial rewriting. Consequently, the Supreme Court set aside the interim order, without deciding the substantive constitutional challenge to Rule 29(4). The appeals were allowed, and the matter was returned to the High Court for disposal on the merits.
Issues considered
- Whether the Madras High Court's interim order modifying Rule 29(4) amounts to impermissible judicial rewriting of a statutory rule.
- Whether a court can, at the interlocutory stage, alter the mandatory prior‑notice requirement and the 24‑hour exception prescribed under the Copyright Act and Rules.
Legislation cited
- Copyright Act, 1957s. 31D, s. 78(2)(c)
Subjects
judicial reviewstatutory interpretationlegislative draftingcopyright lawRule 29prior noticeinterim orderArticle 226judicial rewritingdelegated legislation
Judgment
[2021] 9 S.C.R. 137 137
SAREGAMA INDIA LIMITED A
v.
NEXT RADIO LIMITED & ORS.
(Civil Appeal Nos. 5985-5987 of 2021)
SEPTEMBER 27, 2021 B
[DR DHANANJAYA Y CHANDRACHUD AND
B. V. NAGARATHNA, JJ.]
Constitution of India: Art. 226 – Writ jurisdiction, scope of –
Judicial rewriting, permissibility – Held: Writ court is entrusted by
C
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 – However, the court in exercise of judicial
review cannot supplant the terms of the provision through judicial
interpretation by re-writing statutory language – In the instant case,
High Court by interim order modified the operation of Rule 29 of D
the Copyright Rules 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 – According to Rule 29, the broadcasting
organisation shall give notice of fifteen days before broadcasting,
exception provides that in unforeseen circumstances, notice shall
E
be given twenty four hours after the broadcasting – The interim
order converted the second proviso into a “routine procedure”
instead of an exception (as the High Court has described its
direction) that notice shall be given fifteen days after the broadcast
– This exercise by the High Court amounts to re-writing – Such an
exercise of judicial redrafting of legislation or delegated legislation F
cannot be carried out – An exercise of judicial rewriting of a
statutory rule by High Court in exercise of jurisdiction under Art.226
particularly in interlocutory proceedings is not warranted –
Copyright Rules, 2013 – r.29 (4) – Interlocutory order.
Judicial review: Scope of – Held: Court in exercise of judicial G
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. H
137
138 SUPREME COURT REPORTS [2021] 9 S.C.R.
A Interpretation of statutes: 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.
Allowing the appeals, the Court
HELD: 1.1 It is a settled principle of law that when the
B words of a statute are clear and unambiguous, it is not permissible
for the court to read words into the statute. 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
C 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
D 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
E 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
F Court held the broadcasters down to the requirement of prior
notice, it 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
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
G 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
H practicable. The interim order of the High Court is set aside.
SAREGAMA INDIA LIMITED v. NEXT RADIO LIMITED & ORS. 139
This is, however, subject to the clarification that this Court has A
not expressed any opinion on the merits of the rival submissions
which would fall for determination in the exercise of the writ
jurisdiction of the High Court in the pending proceedings. [Paras
20-23][149-G; 150-D-H; 151-D-F]
Padma Sundara Rao v. State of Tamil Nadu (2002) 3 B
SCC 533 - followed.
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 – referred to.
C
Case Law Reference
[2002] 2 SCR 383 followed Para 20
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.5985-
5987 of 2021.
From the Judgment and Order dated 02.08.2021 of the High Court D
of Judicature at Madras in W.P. No.15860 of 2021 and W.M.P. Nos.16749
and 16752 of 2021.
With
Civil Appeal Nos.5988 and 5990 of 2021
Mukul Rohatgi, Akhil Sibal, Sr. Advs., Ankur Sangal, Ms. Sucheta E
Roy, Ms. Imon Roy, M/s Khaitan & Co., Advs. for the Appellant.
Navroz Seervai, Neeraj Kishan Kaul, Sr. Advs., Abhishek
Malhotra, Ms. Liz Mathew, Ms. Sapna Chaurasia, Ms. Naomi Chandra,
Ms. Shilpa Gamnani, Ms. Atmaja Tripathy, Kaizad Irani, Ms. Namisha
Chadha, Navneet R., Advs. for the Respondents.
F
The Judgment of the Court was delivered by
DR. DHANANJAYA Y. CHANDRACHUD, J.
1. Leave granted.
2. These appeals arise from an interim order dated 2 August 2021
of a Division Bench of the High Court of Judicature at Madras in a G
batch of petitions. The writ petitions have been instituted before the
High Court under Article 226 of the Constitution to challenge the validity
of Rule 29(4) of the Copyright Rules 20131. The High Court has, by its
interim order, directed that:
1
“Rules” H
140 SUPREME COURT REPORTS [2021] 9 S.C.R.
A (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
B 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
C days after the broadcast; and
(iii) 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.
3. The primary submission which has been urged on behalf of the
D appellants is that the interim order of the High Court has the effect of
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 2.
4. Mr Mukul Rohatgi and Mr Akhil Sibal, learned Senior Counsel,
have appeared on behalf of the appellants. Mr Navroz Seervai and Mr
E Neeraj Kishan Kaul, learned Senior Counsel, have appeared on behalf
of the contesting respondents, who are the original petitioners before the
High Court.
5. Since the interim direction has been issued in the writ petitions
moved before the High Court and the petitioners before the High Court
F are represented in these proceedings through counsel, on caveat, we
are disposing of the appeals at this stage.
6. The batch of writ petitions before the High Court is listed for
final disposal on 4 October 2021. A grievance has been made on behalf
of the contesting respondents that the appellants have not filed counter
G affidavits in response to the petitions. The learned counsel appearing on
behalf of the appellants assured the Court that they would do so
expeditiously, well before the next date of listing so as to facilitate the
final disposal of the writ petitions.
2
H “Act”
SAREGAMA INDIA LIMITED v. NEXT RADIO LIMITED & ORS. 141
[DR. DHANANJAYA Y. CHANDRACHUD, J.]
7. The facts, insofar as they are necessary for the disposal of the A
present appeals, which arise from the interim order of the High Court,
can be briefly visited.
8. By the Copyright Amendment Act 2012, Parliament incorporated
the provisions of Section 31D which were brought into force on 21 June
2012. Section 31D is in the following terms: B
“31D. Statutory licence for broadcasting of literary and musical
works and sound recording.—(1) Any broadcasting
organisation desirous of communicating to the public by
way of a broadcast or by way of performance of a literary
or musical work and sound recording which has already C
been published may do so subject to the provisions of this
section.
(2) The broadcasting organisation shall give prior notice, in
such manner as may be prescribed, of its intention to
broadcast the work stating the duration and territorial D
coverage of the broadcast, and shall pay to the owner of
rights in each work royalties in the manner and at the rate
fixed by the Commercial Court.
(3) The rates of royalties for radio broadcasting shall be
different from television broadcasting and the Commercial E
Court shall fix separate rates for radio broadcasting and
television broadcasting.
(4) In fixing the manner and the rate of royalty under sub-
section (2), the Commercial Court may require the
broadcasting organisation to pay an advance to the owners F
of rights.
(5) The names of the authors of the principal performers of
the work shall, except in case of the broadcasting
organisation communicating such work by way of
performance, be announced with the broadcast.
G
(6) No fresh alteration to any literary or musical work, which
is not technically necessary for the purpose of
broadcasting, other than shortening the work for
convenience of broadcast, shall be made without the
consent of the owners of rights.
H
142 SUPREME COURT REPORTS [2021] 9 S.C.R.
A (7) The broadcasting organisation shall—
(a) maintain such records and books of account, and render
to the owners of rights such reports and accounts; and
(b) allow the owner of rights or his duly authorised agent or
representative to inspect all records and books of account
B relating to such broadcast, in such manner as may be
prescribed.
(8) Nothing in this section shall affect the operation of any
licence issued or any agreement entered into before the
commencement of the Copyright (Amendment) Act,
C 2012.”
9. 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
D compliance with the provisions of the Section Sub-Section (2) incorporates
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
E Appellate Board.
10. Applications were filed by several broadcasters before the
Intellectual Property Appellate Board3 seeking the determination of the
rates for the purpose of a statutory license under Section 31D (together
with the provisions of Rules 29 to 31 of the Rules), for the communication
F of sound recordings to the public by way of broadcast through FM radio.
For several years, the Copyright Board was not duly constituted. In
2017, the Copyright Board merged with the IPAB as a result of a statutory
amendment. By an order dated 31 December 2020, the IPAB determined
the rates of royalty and payment mechanism for the communication of
sound recordings by way of FM radio broadcasts, under Section 31D.
G The order of the Copyright Board, insofar as it is material, contains the
following directions:
“215. We hereby direct that the above mentioned royalty rates
set out in para 149 for broadcasting sound recordings
3
H “IPAB”
SAREGAMA INDIA LIMITED v. NEXT RADIO LIMITED & ORS. 143
[DR. DHANANJAYA Y. CHANDRACHUD, J.]
payable respectively for the sound recording and for the A
underlying literary and musical works as envisaged under
Section 31D with effect from 1st October 2020 to 30th
September 2021. We further direct that:
a. The above royalty rates shall be published in the IPAB
Website and Copyright Office website. B
b. The new royalty rates comes into effect from 01.10.2020.
c. The radio broadcasters have to pay the arrears of royalty
to the music companies on or before 10.02.2021 for the
period of 01.10.2020 to 31.01.2021. As far as royalty fixed
by us for underlying works of sound recording is concerned, C
the same shall be distributed as per the amended provision
of proviso 3 & 4 of Section 18 and 19 of the Act. With
regard to receipt of royalty from the broadcasters
pertaining to sound recording which has been fixed by us,
the broadcasters shall pay the same to PPL on behalf of D
their members, rest of the same shall be paid directly to
the respective parties. Similarly, the share of author and
composer fixed by us for underlying works shall be fixed
by IPRS on behalf of the authors and composers being
members to be paid. The non-members of the IPRS shall
be entitled to receive the royalty directly from the E
broadcasters.
d. The radio broadcasters have to comply with Rule
29 of the Copyright Rules, 2013 to obtain statutory
license from the music companies, by giving advance
notice to the owner of the copyright along with an F
advance payment as per the above royalty calculation
with effect from 01.02.2021. The same notice copy
has to be sent to the Registrar of Copyrights for
records.
e. In case, the respondents would insist for advance G
payments as mentioned in the Rules, we are of the view
that since COVID 19 pandemic is an unusual thing to
happen in the year 2020. The lockdown to tackle the Covid
crisis had not only affected the radio industry, but every
other industry in the country. Considering the peculiar
H
144 SUPREME COURT REPORTS [2021] 9 S.C.R.
A circumstances till 30.09.2021, we direct all the broadcasters
to deposit 25% (twenty five percent) as advance amount
under the compliance of Rule 29, subject to adjustment of
amount every calendar month.
f. As far as regional songs and small broadcasters having
B one or two radio stations having total gross income of less
than 10 crores, they are free to negotiate with the music
companies under Section-30 of the Act as per earlier
practise either to play in lumpsum or as per terms and
conditions decided by them.
C g. The royalty rates shall be reviewed by the Board as per
Rule 31(9) at the end of the said period either suo motto
or on the application by any interested person.
h. The rate determined under these proceedings will act as
a base for future revision/change in the rates, where this
D entire process need not be replicated, except taking into
considerations, change in the financial details, paying
capacity of the Radio Broadcasters, the effect of pandemic
and all other relevant factors etc. which have been given
due consideration.
E i. All the Petitions are allowed in terms of the royalty
determined hereinabove.
j. Indian Performing Rights Society/Authors (lyricists &
music composers) are also entitled to claim their share of
royalty from the assignee.
F k. No costs.”
(emphasis supplied)
11. The order of the IPAB is stated to have been challenged by
the copyright owners, on the one hand. On the other hand, suits are
pending before the High Court of Delhi and the High Court of Judicature
G at Bombay. This is not the bone of contention in the present case.
12. Rule 29 of the Rules, insofar as it is material, contains the
following requirements:
“29. Notice to owner for communication to the public of literary
H and musical works and sound recordings.—(1) Any broadcasting
SAREGAMA INDIA LIMITED v. NEXT RADIO LIMITED & ORS. 145
[DR. DHANANJAYA Y. CHANDRACHUD, J.]
organisation desirous of communicating to the public by way of A
broadcast or by way of performance of a published literary or
musical work and sound recording under sub-section (1) of Section
31-D shall give a notice of its intention to the owner of the copyright
and to the Registrar of Copyrights before a period of five days in
advance of such communication to the public and shall pay to the
B
owner of the copyright, in the literary or musical work or sound
recording or any combination thereof, the amount of royalties due
at the rate fixed by the Board in this regard:
Provided that in case of communication to the public by way of
broadcast or by way of performance of a newly published literary
or musical work or sound recording or any combination thereof, C
which has been published within the said period of five days of
such communication and which do not form part of the scheduled
programmes, the notice shall, be given before such communication
to the public:
Provided further that in case of communication to the public by D
way of broadcast or by way of performance of any published
literary or musical work and sound recording or any combination
thereof, in unforeseen circumstances, the notice shall, be given
within twenty-four hours of such communication to the public:
Provided also that any broadcasting organisation shall give a notice E
under this chapter only after the royalty to be paid is determined
by the Board under Rule 31 and published in the journal and in the
website of the Copyright Office and the Board.
(2) Every such notice shall be in respect of works belonging to
one owner only. F
(3) Separate notices shall be given for communication to public
by way of radio broadcast or television broadcast or by way of
performance of a literary or musical work and sound recording
which has already been published.
G
(4) The notice under sub-rule (1) shall contain the following
particulars, namely—
(a) Name of the channel;
H
146 SUPREME COURT REPORTS [2021] 9 S.C.R.
A (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
B 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;
C (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 of the works, reasons thereof, and the
evidence of consent of the owners of rights, if required, for making
D such alteration;
(h) Mode of the proposed communication to public, i.e. radio,
television or performance;
(i) Name, if any, of the programme in which the works are to be
included;
E (j) Details of time slots, duration and period of the programme in
which the works are to be included;
(k) Details of the payment of royalties at the rates fixed by the
Board; and
F (l) Address of the place where the records and books of accounts
are to be maintained for inspection by the owner of rights.”
13. Rule 29(4) has been challenged before the High Court on the
ground that it (i) violates Article 19(1)(a) of the Constitution; and (ii) is
ultra vires Section 31D of the Act.
G 14. The High Court, in the course of its interim order, observed:
“3. 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
H
SAREGAMA INDIA LIMITED v. NEXT RADIO LIMITED & ORS. 147
[DR. DHANANJAYA Y. CHANDRACHUD, J.]
or performing ad lib, which is the essence of spontaneity A
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 was of the view that the duty which is cast on B
broadcasters in the notice to broadcast under Rule 29(1) is “apparently
onerous”. Consequently, it directed that the petitioners before it may be
permitted to resort to the second proviso to Rule 29(4) as a “routine
procedure”, instead of an exception, subject to the duration of the ex
post facto reporting being enlarged to fifteen days. In other words, the
High Court, while maintaining the requirement of a prior notice under C
Section 31 D, has re-fashioned the rule by stipulating that details pertaining
to the broadcasts, particularly the duration, time slots and the like, including
the quantum of royalty may be furnished within fifteen days of the
broadcast or performance.
15. Mr Mukul Rohatgi and Mr Akhil Sibal, learned Senior Counsel D
appearing on behalf of the appellants, submitted that:
(i) The interim order of the High Court re-writes Rule 29(4),
which is impermissible, in any event at the interim stage;
(ii) The validity of Rule 29(4) is yet to be adjudicated upon E
and a presumption would attach to the constitutionality of
both- the Rules and the Statute;
(iii) There is no challenge to the validity of Section 31D in
terms of which Rule 29 has been framed;
(iv) The order of the IPAB dated 31 December 2020 F
specifically requires compliance with the provisions of
Rule 29 while fixing the rates of royalty; and
(v) The High Court has, in the course of its interim order,
extended it only to the petitioners before it and to the
broadcasters who have been impleaded as parties, as a G
result of which the pan-India operation of the Rule is left
in the realm ofuncertainty.
16. These submissions have been contested on behalf of the
broadcasters by Mr Navroz Seervai and Mr Neeraj Kishan Kaul, learned
Senior Counsel. H
148 SUPREME COURT REPORTS [2021] 9 S.C.R.
A 17. Mr Navroz Seervai urged that:
(i) Section 31D(2) stipulates that the broadcasting
organization shall give prior notice, in such manner as may
be prescribed, of its intention to broadcast the work, stating
the duration and territorial coverage of the broadcast,
B together with the payment of royalty;
(ii) Section 31 D, in referring to a notice in the manner as
may be prescribed, does not envisage that conditions
incorporating minute details should be provided in the prior
notice; and
C (iii) The rule making power in Section 78 makes a distinction
between ‘form’, ‘manner’ and ‘conditions’. Since Section
31D refers to the manner in which the notice may be issued,
the ‘manner’ cannot extend to stipulating ‘conditions’.
18. Mr Neeraj Kishan Kaul has submitted that:
D
(i) Section 31D was introduced by Parliament by an
amendment of 2012 to obviate the exercise of monopolistic
rights wielded by copyright owners to the detriment of the
public at large;
(ii) Section 31D creates a statutory right in favour of
E
broadcasters to obtain licenses as a result of which the
earlier regime of voluntary licensing has been replaced by
the regime of statutory licenses envisaged in Section 31D;
(iii) Until December 2020, in the absence of a duly constituted
IPAB, broadcasters were functioning under the ambit of
F
voluntary licensing agreements;
(iv) Rule 29(4) defeats the object of Section 31D insofar as it
incorporates minute details in the prior notice which has
been prescribed;
G (v) Many broadcasters operate in the context of interactive
dynamic sites as a result of which the requirements which
have been prescribed in Rule 29(4) are onerous and
impossible to fulfill;
(vi) The broadcasters are ready and willing to pay royalties
H which are prescribed by the IPAB according to the statute
SAREGAMA INDIA LIMITED v. NEXT RADIO LIMITED & ORS. 149
[DR. DHANANJAYA Y. CHANDRACHUD, J.]
at the end of every month and even inspection of records A
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 B
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, C
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 D
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 18814 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:
E
“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 F
Judge’s duty is to interpret and apply the law, not to change
it to meet the Judge’s 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 G
clear and unambiguous, it is not permissible for the court to read words
4
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-
Apr-2021.pdf H
150 SUPREME COURT REPORTS [2021] 9 S.C.R.
A into the statute. A Constitution Bench of this Court in Padma Sundara
Rao v State of Tamil Nadu5 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
B 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.
C …..
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
D 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
E 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
F 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
G 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
5
H (2002) 3 SCC 533
SAREGAMA INDIA LIMITED v. NEXT RADIO LIMITED & ORS. 151
[DR. DHANANJAYA Y. CHANDRACHUD, J.]
the particulars which are to be furnished in the notice may be furnished A
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.
B
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 C
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 D
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 E
Court considers more practicable.
23. We accordingly allow the appeals by setting aside the interim
order of the High Court dated 2 August 2021.This is, however, subject to
the clarification that this Court has not expressed any opinion on the
merits of the rival submissions which would fall for determination in the F
exercise of the writ jurisdiction of the High Court in the pending
proceedings.
24. Pending application(s), if any, stands disposed of.
G
Devika Gujral Appeals allowed.
H
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