Holding

The Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulations, 2017 and the Tariff Order are intra vires of the TRAI Act and do not infringe the Copyright Act, as TRAI's regulatory power to protect both broadcasters and consumers prevails over the copyright regime where inconsistencies arise.

Summary

Star India Private Limited challenged the Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulations, 2017 and the accompanying Tariff Order, alleging that TRAI had overstepped its jurisdiction by regulating the content, pricing and packaging of TV channels, which they argued fell within the exclusive domain of the Copyright Act. The Supreme Court examined the scope of the TRAI Act, the Copyright Act, the Telegraph Act and the Indian Wireless Telegraphy Act, emphasizing that the two statutes operate in different fields and must be harmonised. It held that TRAI's power under s.36 of the TRAI Act is broad and intended to protect both broadcasters and consumers, allowing it to fix rates and regulate inter‑connectivity without infringing copyright. Consequently, the Regulations and Tariff Order were deemed intra vires and the appeals were dismissed. The Court also clarified that where a conflict exists, the public‑interest regulatory scheme of the TRAI Act prevails over the property‑rights focus of the Copyright Act.

Issues considered

Whether TRAI has the authority to regulate the pricing, bundling and marketing of TV channels, or whether such regulation intrudes upon the domain of the Copyright Act.
Whether the impugned Regulation and Tariff Order regulate the content of broadcasts, thereby exceeding TRAI's jurisdiction.
Whether the provisions of the TRAI Act, particularly s.36, are consistent with the purpose of the Act and with other statutes such as the Telegraph Act, the Indian Wireless Telegraphy Act and the Copyright Act.

Legislation cited

Cable Television Networks (Regulation) Act, 1995
Copyright Act, 1957s. 2(dd), s. 2(ff), s. 33, s. 33A, s. 37, s. 38, s. 39, s. 39A, s. 52(1)(b)
Indian Telegraph Act, 1885s. 3(1AA), s. 4
Indian Wireless Telegraphy Act, 1933s. 2(2), s. 5
Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act, 2007
Telecom Regulatory Authority of India Act, 1997s. 11(1)(a)(iv), s. 11(1)(b), s. 2(1)(k), s. 36(1), s. 36(2), s. 38

Subjects

TRAItelecommunications regulationbroadcasting servicescopyrightinterconnectionpricingbouqueta-la-carteconsumer protectionstatutory interpretation

Judgment

128 SUPREME[2018]
COURT 14REPORTS
S.C.R. 128 [2018] 14 S.C.R.

A STAR INDIA PRIVATE LIMITED
v.
DEPARTMENT OF INDUSTRIAL POLICY AND PROMOTION
& ORS.
(Civil Appeal Nos. 7326-7327 of 2018)
B
OCTOBER 30, 2018
[R. F. NARIMAN AND NAVIN SINHA, JJ.]
Telecommunication (Broadcasting and Cable) Services
Interconnection (Addressable Systems) Regulations, 2017 –
C 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.
D
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
E
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
F free to arrange pricing of his TV channels so long as they are non-
discriminatory and do not otherwise have the effect of unreasonably
restricting the choice of a subscriber to choose bouquet or a-la-
carte channels – Telecommunication (Broadcasting and Cable)
Services Interconnection (Addressable Systems) Regulations, 2017
– Clause 2(j).
G
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,
H
128
STAR INDIA PVT. LTD. v. DEPARTMENT OF INDUSTRIAL 129
POLICY AND PROMOTION

it is trespassing into the exclusive domain set out by Parliament A
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
B
“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”, C
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
D
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, E
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 – F
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, G
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 H
130 SUPREME COURT REPORTS [2018] 14 S.C.R.

A 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
B
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
C 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
D 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
E 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
F 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
G 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
H been impinged upon. [Para 30][177-G-H; 178-A-F]
STAR INDIA PVT. LTD. v. DEPARTMENT OF INDUSTRIAL 131
POLICY AND PROMOTION

Avishek Goenka v. Union of India (2012) 5 SCC 275 : A
[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 B
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 C
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] D

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 E
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 F
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 G
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 a- H
132 SUPREME COURT REPORTS [2018] 14 S.C.R.

A 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
B
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
C 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
D
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
E 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
F 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
G 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,
H
STAR INDIA PVT. LTD. v. DEPARTMENT OF INDUSTRIAL 133
POLICY AND PROMOTION

there can be no difficulty in stating that the two Acts operate in A
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 non-
discriminatory and do not otherwise have the effect of
B
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 C
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
D
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 E
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 F
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 G
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 H
134 SUPREME COURT REPORTS [2018] 14 S.C.R.

A 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.
B
[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
C 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
D
[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
E
[2013] 12 SCR 999 relied on Para 21
[2016] 9 SCR 1 relied on Para 22
[2012] 5 SCR 547 relied on Para 31

F [2006] 9 Suppl. SCR 602 relied on Para 32
[2008] 9 SCR 165 referred to Para 60
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 7326-
7327 of 2018.
From the Judgment and Order dated 02.03.2018 & 23.05.2018
G
of the High Court of Judicature at Madras in Writ Petition Nos. 44126
and 44127 of 2016.
With
Civil Appeal Nos. 7328-7329/2018.
H
STAR INDIA PVT. LTD. v. DEPARTMENT OF INDUSTRIAL 135
POLICY AND PROMOTION

P. S. Narasimha, Vikramjit Banerjee, ASGs, P. Chidambaram, A
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
B
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, C
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,
D
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
E
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 F
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 G
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
H
136 SUPREME COURT REPORTS [2018] 14 S.C.R.

A 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)?
B 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
C 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
D 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/
E 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
F
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;
G
f. Channels of one broadcaster cannot be offered by another
broadcaster in their bouquet of television channels, even after
obtaining due authorization;

H
STAR INDIA PVT. LTD. v. DEPARTMENT OF INDUSTRIAL 137
POLICY AND PROMOTION [R. F. NARIMAN, J.]

g. Promotional schemes (i) can only be offered on a-la-carte prices A
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; B
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:- C

“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 D
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 E
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 F
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 G
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
H
tariff order, other than those which we have struck down.”
138 SUPREME COURT REPORTS [2018] 14 S.C.R.

A 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
B 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.
C 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.”
D 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
E 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
F 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.
G 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
H
STAR INDIA PVT. LTD. v. DEPARTMENT OF INDUSTRIAL 139
POLICY AND PROMOTION [R. F. NARIMAN, J.]

self imposed restrictions while invoking the extraordinary A
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 B
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. C

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 D
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) E
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 F
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 G
(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 H
140 SUPREME COURT REPORTS [2018] 14 S.C.R.

A 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
B
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
C 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
D
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
E 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
F
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
G 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 A
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
B
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 C
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 D
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 E
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. F
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 G
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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A 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,
B
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
C 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
D
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
E 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,
F
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
G 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. A
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
B
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 C
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
D
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 E
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 F
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 G
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 H
144 SUPREME COURT REPORTS [2018] 14 S.C.R.

A 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
B to him, have not been challenged by the appellants. These regulations
make it clear that the broadcasters have to offer TV channels on a non-
discriminatory basis. The only reason why pricing is referred to in the
impugned Regulation is to fulfil Regulation 3(2), which is to ensure that
the offer made is non-discriminatory and, therefore, the Regulation and
the Tariff Order read as a whole would, in fact, not impact content at all
C but be regulations for carriage of the signals stricto senso. He relied on
judgments which held that TRAI’s regulatory powers are extremely wide.
He also relied upon several provisions of the Copyright Act, including
Section 52(1)(b), which made it clear that there would be no infringement
of copyright, assuming the arguments of the appellants to be correct,
D when there is transient or incidental storage of a work or performance
purely in the technical process of electronic transmission or communication
to the public.
10. Shri Shyam Divan, learned Senior Advocate, appeared on behalf
of direct-to-home companies. He referred to and relied upon various
E provisions of the Copyright Act, in particular, Section 37 thereof, making
it clear that the broadcast reproduction right referred to is born only
after the broadcast which has passed down from the broadcaster through
the MSO to the cable operator to the consumer and/or through the DTH
service provider to the consumer is over. He stressed the fact that this
right comes in only when a re-broadcast or a subsequent second
F broadcast takes place after the original broadcast, which would not be
covered by the Regulation or the Tariff Order in the present case.
11. Shri Krishnan Venugopal, learned Senior Advocate appearing
for some of the consumers, referred to the Standing Committee of
Parliament, in which it was pointed out that digitisation of cable TV
G services, by switching from the older analogue system in phases from
2012 onwards, had greatly increased the revenue of broadcasters and
stated that these benefits could not possibly be denied by the broadcasters.
In addition, the selfsame broadcasters have been regulated throughout
and are raising questions relating to jurisdiction only after the present
H Regulation and Tariff Order have been made largely with their consent.
He also cited certain decisions on the reach of TRAI under the TRAI
Act.
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12. Having heard learned counsel for the parties, it is important to A
first deal with the TRAI Act. In Secretary, Ministry of Information
& Broadcasting, Govt. of India & Ors. v. Cricket Association of
Bengal, (1995) 2 SCC 161, this Court referred to the pressing need to
create a comprehensive enactment regulating airwaves, being public
property. Public interest demanded that service providers be regulated
B
and the usage of the airwaves through frequencies be regulated. A
direction was thus issued to the Government of India to formulate a
comprehensive enactment after noting the inadequacies that were felt in
the Indian Telegraph Act, 1885. This Court stated:
“Per Sawant, J.:
C
78. There is no doubt that since the airwaves/frequencies are a
public property and are also limited, they have to be used in the
best interest of the society and this can be done either by a central
authority by establishing its own broadcasting network or regulating
the grant of licences to other agencies, including the private
agencies. What is further, the electronic media is the most powerful D
media both because of its audio-visual impact, and its widest reach
covering the section of the society where the print media does not
reach. The right to use the airwaves and the content of the
programmes therefore, needs regulation for balancing it and as
well as to prevent monopoly of information and views relayed, E
which is a potential danger flowing from the concentration of the
right to broadcast/telecast in the hands either of a central agency
or of few private affluent broadcasters. That is why the need to
have a central agency representative of all sections of the society
free from control both of the Government and the dominant
influential sections of the society. F

xxx xxx xxx
120. … Hence every citizen has a right to use the best means
available for the purpose. At present, electronic media, viz., T.V.
and radio, is the most effective means of communication. … G
xxx xxx xxx
122. We, therefore, hold as follows:
[i] The airwaves or frequencies are a public property. Their
use has to be controlled and regulated by a public authority in
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146 SUPREME COURT REPORTS [2018] 14 S.C.R.

A the interests of the public and to prevent the invasion of their
rights. Since the electronic media involves the use of the
airwaves, this factor creates an in-built restriction on its use as
in the case of any other public property.
[ii] The right to impart and receive information is a species of
B the right of freedom of speech and expression guaranteed by
Article 19(1)(a) of the Constitution. A citizen has the
fundamental right to use the best means of imparting and
receiving information and as such to have an access to
telecasting for the purpose. However, this right to have an
access to telecasting has limitations on account of the use of
C the public property, viz., the airwaves, involved in the exercise
of the right and can be controlled and regulated by the public
authority. This limitation imposed by the nature of the public
property involved in the use of the electronic media is in addition
to the restrictions imposed on the right to freedom of speech
D and expression under Article 19(2) of the Constitution.
[iii] The Central Government shall take immediate steps to
establish an independent autonomous public authority
representative of all sections and interests in the society to
control and regulate the use of the airwaves.
E [iv] Since the matches have been telecast pursuant to the
impugned order of the High Court, it is not necessary to decide
the correctness of the said order.
Per Jeevan Reddy J.:

F 201.1.(b) Airwaves constitute public property and must be utilised
for advancing public good. No individual has a right to utilise them
at his choice and pleasure and for purposes of his choice including
profit…
201.1.(c) Broadcasting media is inherently different from Press
or other means of communication/ information. The analogy of
G
press is misleading and inappropriate. This is also the view
expressed by several Constitutional Courts including that of the
United States of America.
xxx xxx xxx
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201.4. The Indian Telegraph Act, 1885 is totally inadequate to A
govern an important medium like the radio and television, i.e.,
broadcasting media. The Act was intended for an altogether
different purpose when it was enacted. This is the result of the
law in this country not keeping pace with the technological advances
in the field of information and communications. While all the
B
leading democratic countries have enacted laws specifically
governing the broadcasting media, the law in this country has stood
still, rooted in the Telegraph Act of 1885. Except Section 4(1) and
the definition of telegraph, no other provision of the Act is shown
to have any relevance to broadcasting media. It is, therefore,
imperative that the parliament makes a law placing the C
broadcasting media in the hands of a public/statutory corporate or
the corporations, as the case may be. This is necessary to
safeguard the interests of public and the interests of law as also
to avoid uncertainty, confusion and consequent litigation.”
13. Accordingly, the Government formulated a National Telecom D
Policy in 1994 and then decided to promulgate an ordinance which led to
the enactment of the TRAI Act. The Statement of Objects and Reasons
of this Act stressed:
“1. In the context of the National Telecom Policy, 1994, which
amongst other things, stresses on achieving the universal service, E
bringing the quality of telecom services to world standards,
provisions of wide range of services to meet the customers demand
at reasonable price, and participation of the companies registered
in India in the area of basic as well as value added telecom services
as also making arrangements for protection and promotion of
consumer interest and ensuring fair competition, there is a felt F
need to separate regulatory functions from service providing
functions which will be in keeping with the general trend in the
world. In the multi-operator situation arising out of opening of
basic as well as value added services in which private operator
will be competing with Government operators, there is a pressing G
need for an independent telecom regulatory body for regulation
of telecom services for orderly and healthy growth of
telecommunication infrastructure apart from protection of
consumer interest.

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148 SUPREME COURT REPORTS [2018] 14 S.C.R.

A 2. In view of above, it was proposed to set up an independent
Telecom Regulatory Authority as a non-statutory body and for
that purpose the Indian Telegraph (Amendment) Bill, 1995 was
introduced and then passed by Lok Sabha on 6th August, 1995.
At the time of consideration of the aforesaid Bill in Rajya Sabha,
having regard to the sentiments expressed by the Members of
B
Rajya Sabha and of the views of the Standing Committee on
Communication which expressed a hope that steps will be taken
to set up a Statutory Authority, it is proposed to set up the Telecom
Regulatory Authority of India as a statutory authority.
3. The proposed Authority will consist of a Chairperson and
C minimum two and maximum four members. A person who is or
has been a Judge of the Supreme Court or Chief Justice of a High
Court will be eligible to be appointed as a Chairperson of the
authority. A member shall be a person who has held as the post
of Secretary or Additional Secretary to the Government of India
D or any equivalent post in the Central Government or the State
Government for minimum period of three years.
4. The powers and functions of the Authority, inter alia, are-
(i) ensuring technical compatibility and effective inter-
relationship between different service providers;
E
(ii) regulation of arrangement amongst service providers of
sharing their revenue derived from providing
telecommunication service;
(iii) ensuring compliance of licence conditions by all service
F providers;
(iv) protection of the interest of the consumers of
telecommunication service;
(v) settlement of disputes between service providers;
(vi) fixation of rates for providing telecommunication service
G within India and outside India;
(vii) ensuring effective compliance of universal service
obligations.

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5. The Authority shall have an inbuilt dispute settlement A
mechanism including procedure to be followed in this regard
as well as a scheme of punishment in the event of non-
compliance of its order.
6. The Authority will have to maintain transparency while
exercising its powers and functions. The powers and B
functions would enable the Authority to perform a role of
watchdog for the telecom sector in an effective manner.
7. In order that the Authority functions in a truly independent
manner and discharges its assigned responsibilities effectively,
it is proposed to vest the Authority with a statutory status. C
8. As the Parliament was not in session, the President
promulgated the Telecom Regulatory Authority of India
Ordinance, 1996 on the 27th January, 1996 for the aforesaid
purpose.
9. The Bill seeks to replace the said Ordinance.” D

(Emphasis supplied.)
14. The said Act was amended by Act 2 of 2000, which substituted
the Preamble of the TRAI Act thus:
E
“An Act to provide for the establishment of the Telecom
Regulatory Authority of India and the Telecom Disputes
Settlement and Appellate Tribunal to regulate the
telecommunication services, adjudicate disputes, dispose of
appeals and to protect the interests of service providers and
consumers of the telecom sector, to promote and ensure orderly F
growth of the telecom sector and for matters connected
therewith or incidental thereto”
(Emphasis supplied.)
15. The Amendment Act of 2000 added a proviso to the definition
of “telecommunication service” under Section 2(1)(k), permitting the G
Central Government to notify other services to be telecommunication
services including broadcasting services. The relevant provisions of the
TRAI Act are, therefore, set out hereinbelow:

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150 SUPREME COURT REPORTS [2018] 14 S.C.R.

A “2(1) In this Act, unless the context otherwise requires,-
xxx xxx xxx
(e) “licensee” means any person licensed under sub-section (1)
of Section 4 of the Indian Telegraph Act, 1885 (13 of 1885) for
providing specified public telecommunication services;
B
(ea) “licensor” means the Central Government or the telegraph
authority who grants a licence under Section 4 of the Indian
Telegraph Act, 1885;
xxx xxx xxx
C (j) “service provider” means the Government as a service provider
and includes a licensee;
(k) “telecommunication service” means service of any description
(including electronic mail, voice mail, data services, audio tax
services, video tax services, radio paging and cellular mobile
D telephone services) which is made available to users by means of
any transmission or reception of signs, signals, writing, images
and sounds or intelligence of any nature, by wire, radio, visual or
other electromagnetic means but shall not include broadcasting
services.
E Provided that the Central Government may notify other service
to be telecommunication service including broadcasting services.
xxx xxx xxx
11. Functions of Authority.— (1) Notwithstanding anything
contained in the Indian Telegraph Act, 1885 (13 of 1885), the
F functions of the Authority shall be to—
(a) make recommendations, either suo motu or on a request
from the licensor, on the following matters, namely:—
(i) need and timing for introduction of new service provider;
G (ii) terms and conditions of licence to a service provider;
(iii) revocation of licence for non-compliance of terms and
conditions of licence;
(iv) measures to facilitate competition and promote efficiency
in the operation of telecommunication services so as to
H facilitate growth in such services;
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(v) technological improvements in the services provided by A
the service providers;
(vi) type of equipment to be used by the service providers
after inspection of equipment used in the network;
(vii) measures for the development of telecommunication
technology and any other matter relatable to B
telecommunication industry in general;
(viii) efficient management of available spectrum;
(b) discharge the following functions, namely:—
(i) ensure compliance of terms and conditions of licence; C
(ii) notwithstanding anything contained in the terms and
conditions of the licence granted before the commencement
of the Telecom Regulatory Authority of India (Amendment)
Act, 2000, fix the terms and conditions of inter-connectivity
between the service providers; D
(iii) ensure technical compatibility and effective inter-
connection between different service providers;
(iv) regulate arrangement amongst service providers of
sharing their revenue derived from providing
telecommunication services; E

(v) lay-down the standards of quality of service to be provided
by the service providers and ensure the quality of service and
conduct the periodical survey of such service provided by
the service providers so as to protect interest of the consumers
of telecommunication service; F

(vi) lay-down and ensure the time period for providing local
and long distance circuits of telecommunication between
different service providers;
(vii) maintain register of inter-connect agreements and of all G
such other matters as may be provided in the regulations;
(viii) keep register maintained under clause (vii) open for
inspection to any member of public on payment of such fee
and compliance of such other requirement as may be provided
in the regulations;
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152 SUPREME COURT REPORTS [2018] 14 S.C.R.

A (ix) ensure effective compliance of universal service
obligations;
(c) levy fees and other charges at such rates and in respect of
such services as may be determined by regulations;
(d) perform such other functions including such administrative
B and financial functions as may entrusted to it by the Central
Government or as may be necessary to carry out the provisions
of this Act:
Provided that the recommendations of the Authority specified in
clause (a) of this sub-section shall not be binding upon the Central
C Government:
Provided further that the Central Government shall seek the
recommendations of the Authority in respect of matters specified
in sub-clauses (i) and (ii) of clause (a) of this sub-section in respect
of new licence to be issued to a service provider and the Authority
D shall forward its recommendations within a period of sixty days
from the date on which that Government sought the
recommendations:
Provided also that the Authority may request the Central
Government to furnish such information or documents as may be
E necessary for the purpose of making recommendations under sub-
clauses (i) and (ii) of clause (a) of this sub-section and that
Government shall supply such information within a period of seven
days from receipt of such request:
Provided also that the Central Government may issue a licence to
F a service provider if no recommendations are received from the
Authority within the period specified in the second proviso or within
such period as may be mutually agreed upon between the Central
Government and the Authority:
Provided also that if the Central Government, having considered
G that recommendation of the Authority, comes to a prima
facie conclusion that such recommendation cannot be accepted
or needs modifications, it shall refer the recommendation back to
the Authority for its reconsideration, and the Authority may, within
fifteen days from the date of receipt of such reference, forward
to the Central Government its recommendation after considering
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the reference made by that Government. After receipt of further A
recommendation if any, the Central Government shall take a final
decision.
(2) Notwithstanding anything contained in the Indian Telegraph
Act, 1885 (13 of 1885), the Authority may, from time to time, by
order, notify in the Official Gazette the rates at which the B
telecommunication services within India and outside India shall
be provided under this Act including the rates at which messages
shall be transmitted to any country outside India:
Provided that the Authority may notify different rates for different
persons or class of persons for similar telecommunication services C
and where different rates are fixed as aforesaid the Authority
shall record the reasons therefor.
(3) While discharging its functions under sub-section (1), or sub-
section (2) the Authority shall not act against the interest of the
sovereignty and integrity of India, the security of the State, friendly D
relations with foreign States, public order, decency or morality.
(4) The Authority shall ensure transparency while exercising its
powers and discharging its functions.
xxx xxx xxx
E
36. Power to make regulations.— (1) The Authority may, by
notification, make regulations consistent with this Act and the rules
made thereunder to carry out the purposes of this Act.
(2) In particular, and without prejudice to the generality of the
foregoing power, such regulations may provide for all or any of
F
the following matters, namely :—
(a) the times and places of meetings of the Authority and the
procedure to be followed at such meetings under sub-section (1)
of Section 8, including quorum necessary for the transaction of
business;
G
(b) the transaction of business at the meetings of the Authority
under sub-section (4) of Section 8;
(c) [* * *]

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154 SUPREME COURT REPORTS [2018] 14 S.C.R.

A (d) matters in respect of which register is to be maintained by the
Authority under sub-clause (vii) of clause (b) of sub-section (1)
of Section 11;
(e) levy of fee and lay down such other requirements on fulfilment
of which a copy of register may be obtained under sub-clause
B (viii) of clause (b) of sub-section (1) of Section 11;
(f) levy of fees and other charges under clause (c) of sub-section
(1) of Section 11.”
16. The proviso to section 2(1)(k) was challenged in the Delhi
High Court, which challenge was repelled by the Delhi High Court in
C Star India Private Limited v. TRAI & Ors., (supra.). An SLP from
the said judgment was also dismissed. Acting under Section 2(1)(k), the
Central Government issued two notifications on 9.1.2004. S.O.44(E)
reads as follows:-
“S.O. 44(E). – In exercise of the powers conferred by the proviso
D to clause (k) of sub-section (1) of section 2 of the Telecom
Regulatory Authority of India Act, 1997 (24 of 1997), the Central
Government hereby notifies the broadcasting services and cable
services to be telecommunication service.
[Notification No. 39 issued by Ministry of communication and
E Information Technology dated 9 January 2004. S.O. No.
44(E) issued by TRAI, vide F.No. 13-1/2004]”
S.O.45(E) reads as follows:-
“S.O.45(E). – In exercise of the powers conferred by clause (d)
of sub-clause (1) of section 11 of the Telecom Regulatory Authority
F
of India Act, 1997 (24 of 1997) (hereinafter referred to as the
Act), the Central Government hereby entrusts the following
additional functions to the Telecom Regulatory Authority of India,
established under Sub-section (1) of Section 3 of the Act, in respect
of broadcasting services and cable services, namely:-
G (1) Without prejudice to the provisions contained in clause (a) of
sub-section (1) of section 11 of the Act, to make recommendation
regarding –
(a) the terms and conditions on which the ‘addressable
systems’ shall be provided to customers.
H
STAR INDIA PVT. LTD. v. DEPARTMENT OF INDUSTRIAL 155
POLICY AND PROMOTION [R. F. NARIMAN, J.]

Explanation – For the purposes of this clause, ‘addressable A
system’ with its grammatical variation, means an electronic device
or more than one electronic devices put in an integrated system
through which signals of cable television network can be sent in
encrypted or unencrypted form, which can be decoded by the
device or devices at the premises of the subscriber within the
B
limits of authorisation made, on the choice and request of such
subscriber, by the cable operator for that purpose to the subscriber.
(b) the parameters for regulating maximum time for
advertisements in pay channels as well as other channels.
(2) Without prejudice to the provisions of sub-section (2) of section C
11 of the Act, also to specify standard norms for, and periodicity
of, revision of rates of pay channels, including interim measures.
[Notification No. 39 issued by Ministry of Communication and
Information Technology, dated 9 January 2004, S.O. No.
45(E) issued by TRAI, vide F.No. 13-1/2004]” D
17. We are concerned with the impugned Regulation that was
framed on 3.3.2017 under Section 36 of the Act together with the Tariff
Order made on the same date. The regulations with which we are
directly concerned are set out hereunder:
“3. General obligations of broadcasters.— (1) No broadcaster E
shall engage in any practice or activity or enter into any
understanding or arrangement including exclusive contracts with
any distributor of television channels that prevents any other
distributor of television channels from obtaining signals of television
channel of such broadcaster for distribution. F
(2) Every broadcaster shall, within sixty days of receipt of written
request from a distributor of television channels for obtaining signals
of television channel or within thirty days of signing of
interconnection agreement with the distributor, as the case may
be, provide, on non-discriminatory basis, the signals of television
G
channel to the distributor or convey the reasons in writing for
rejection of the request if the signals of television channel are
denied to such distributor:
Provided that imposition of any term or condition by the
broadcaster, which is unreasonable, shall be deemed to constitute
a denial of request: H
156 SUPREME COURT REPORTS [2018] 14 S.C.R.

A Provided further that this sub-regulation shall not apply to a
distributor of television channels, who requests signals of a
particular television channel from a broadcaster while at the same
time demands carriage fee for distribution of that television channel
or who is in default of payment to the broadcaster and continues
to be in such default.
B
(3) If a broadcaster, proposes or stipulates for, directly or indirectly,
placing the channel in any specified position in the electronic
programme guide or assigning a particular channel number, as a
pre-condition for providing signals, such pre-condition shall also
amount to imposition of unreasonable condition.
C
Explanation: For removal of doubt, it is clarified that if a pay
broadcaster offers discount, in non-discriminatory manner, through
its reference interconnect offer on the maximum retail price of
pay channel, within the limit as specified in sub-regulation (4) of
regulation 7, to distributors of television channels for placing the
D channel in any specified position in the electronic programme guide
or assigning particular channel number, such offer of discount
shall not be considered a pre-condition.
(4) No broadcaster shall propose, stipulate or demand for, directly
or indirectly, packaging of the channel in any particular bouquet
E offered by the distributor of television channels to subscribers.
(5) No broadcaster shall propose, stipulate or demand for, directly
or indirectly, guarantee of a minimum subscriber base or a minimum
subscription percentage for its channel or bouquet.

F Explanation: For removal of doubt, it is clarified that the
subscription percentage of a channel or bouquet refers to the
percentage of subscribers subscribing to a specific channel or
bouquet out of average active subscriber base of a distributor.
xxx xxx xxx
G 6. Compulsory offering of channels on a-la-carte basis. - (1)
Every broadcaster shall offer all its television channels on a-la-
carte basis to the distributors of television channels:
Provided that the broadcaster may also offer its pay channels, in
addition to offering of pay channels on a-la-carte basis, in form of
H bouquet:
STAR INDIA PVT. LTD. v. DEPARTMENT OF INDUSTRIAL 157
POLICY AND PROMOTION [R. F. NARIMAN, J.]

Provided further that such bouquet shall not contain— A
(a) any ‘free-to-air channel’; and
(b) High definition (HD) and Standard Definition (SD) variants
of the same channel.
7. Publication of reference interconnection offer by B
broadcaster for pay channels.— (1) Every broadcaster shall
publish, on its website, reference interconnection offer, in
conformance with the regulations and the tariff orders notified by
the Authority, for providing signals of all its pay channels to the
distributor of television channels—
C
(a) within sixty days of commencement of these regulations;
and
(b) before launching of a pay channel. and simultaneously
submit, for the purpose of record, a copy of the same to the
Authority. D
(2) The reference interconnection offer, referred to in sub-
regulation (1), shall contain the technical and commercial terms
and conditions relating to, including but not limited to, maximum
retail price per month of pay channel, maximum retail price per
month of bouquet of pay channels, discounts, if any, offered on
E
the maximum retail price to distributors, distribution fee, manner
of calculation of ‘broadcaster’s share of maximum retail price’,
genre of pay channel and other necessary conditions:
Provided that a broadcaster may include in its reference
interconnection offer, television channel or bouquet of pay channels
F
of its subsidiary company or holding company or subsidiary
company of the holding company, which has obtained, in its name,
the downlinking permission for its television channels from the
Central Government, after written authorization by them.
Explanation: For the purpose of these regulations, the definition
of “subsidiary company” and “holding company” shall be the same G
as assigned to them in the Companies Act, 2013 (18 of 2013).
(3) Every broadcaster shall declare a minimum twenty percent of
the maximum retail price of pay channel or bouquet of pay
channels, as the case may be, as the distribution fee:
H
158 SUPREME COURT REPORTS [2018] 14 S.C.R.

A Provided that the distribution fee declared by the broadcaster shall
be uniform across all the distribution platforms.
(4) It shall be permissible to a broadcaster to offer discounts, on
the maximum retail price of pay channel or bouquet of pay
channels, to distributors of television channels, not exceeding fifteen
B percent of the maximum retail price:
Provided that the sum of distribution fee declared by a broadcaster
under sub-regulation (3) and discounts offered under this sub-
regulation in no case shall exceed thirty five percent of the
maximum retail price of pay channel or bouquet of pay channels,
C as the case may be:
Provided further that offer of discounts, if any, to distributors of
television channels, shall be on the basis of fair, transparent and
non-discriminatory terms:
Provided also that the parameters of discounts shall be measurable
D and computable.
(5) Every broadcaster of pay channel shall mention in its reference
interconnection offer the names of persons, telephone numbers,
and e-mail addresses designated to receive request for receiving
interconnection from distributors of television channels and
E grievance redressal thereof.
(6) The terms and conditions mentioned in the reference
interconnection offer shall include all necessary and sufficient
provisions, which make it a complete interconnection agreement
on signing by other party, for distribution of television channels.
F
(7) The Authority, suo-motu or otherwise, may examine the
reference interconnection offer submitted by a broadcaster and
on examination if the Authority is of the opinion that the reference
interconnection offer is not in conformance with the provisions of
the regulations and the tariff orders notified by the Authority, it
G may, after giving an opportunity of being heard to such broadcaster,
direct such broadcaster to modify the said reference
interconnection offer and such broadcaster shall amend reference
interconnection offer accordingly and publish the same within
fifteen days of receipt of the direction.
H
STAR INDIA PVT. LTD. v. DEPARTMENT OF INDUSTRIAL 159
POLICY AND PROMOTION [R. F. NARIMAN, J.]

(8) Any amendment to the reference interconnection offer shall A
be published in the same manner as provided under the sub-
regulations (1), (2), (3), (4), (5) and (6) of this regulation.
(9) In the event of any amendment to the reference interconnection
offer by a broadcaster under sub-regulation (8), the broadcaster
shall give an option to all distributors, with whom it has written B
interconnection agreements in place, within thirty days from the
date of such amendment and it shall be permissible to such
distributors to enter into fresh interconnection agreement in
accordance with the amended reference interconnection offer,
within thirty days from the date of receipt of such option, or continue
with the existing interconnection agreement. C

xxx xxx xxx
10. Interconnection agreement between broadcaster and
distributor of television channels.— (1) No broadcaster shall
provide signals of pay channels to a distributor of television D
channels without entering into a written interconnection agreement
with such distributor of television channels.
(2) No distributor of television channels shall distribute pay channels
of any broadcaster without entering into a written interconnection
agreement with such broadcaster. E
(3) It shall be mandatory for a broadcaster and a distributor of
television channels to enter into written interconnection agreement
on a-la-carte basis for distribution of pay channels.
xxx xxx xxx
F
11. Territory of interconnection agreement.— (1) The
interconnection agreement signed between a broadcaster and a
multi-system operator shall include the following details for
describing the territory for the purpose of distribution of signals of
television channels –
(a) the registered area of operation of the multi-system G
operator as mentioned in the registration granted by the Central
Government;
(b) the names of specific areas for which distribution of signals
of television channels has been agreed, initially, at the time of
signing of the interconnection agreement; and H
160 SUPREME COURT REPORTS [2018] 14 S.C.R.

A (c) the names of the corresponding states/ union territories in
which such agreed areas as referred in clause (b) of this
sub-regulation are located.
(2) It shall be permissible to the multi-system operator to distribute
the channels beyond the areas agreed under sub-regulation (1),
B by giving a written notice to the broadcaster, after thirty days
from the date of receipt of such written notice by the broadcaster
and the said notice shall deemed to be an addendum to the existing
interconnection agreement:
Provided that such areas fall within—
C (a) the registered area of operation of the multi-system
operator; and
(b) the states or union territories in which the multi-system
operator has been permitted to distribute the signals of
television channels under the interconnection agreement.
D
(3) Nothing contained in sub-regulation (2) shall apply if written
objections with reasons from the broadcaster have been received
by the multi-system operator during the said thirty days notice
period: Provided that any objection by the broadcaster, which is
unreasonable, shall be deemed to constitute a denial of provisioning
E of signals beyond the areas agreed under the clause (b) of sub-
regulation (1).”
18. The relevant clauses of the Tariff Order with which we are
directly concerned are set out hereunder:
“3. Manner of offering of channels by broadcasters.— (1)
F
Every broadcaster shall offer all its channels on a-la-carte basis
to all distributors of television channels.
(2) Every broadcaster shall declare ——
(a) the nature of each of its channel either as ‘free-to-air’ or
G ‘pay’; and
(b) the maximum retail price, per month, payable by a
subscriber for each of its pay channel offered on a-la-carte
basis:
Provided that the maximum retail price of a pay channel shall be
H more than ‘zero’:
STAR INDIA PVT. LTD. v. DEPARTMENT OF INDUSTRIAL 161
POLICY AND PROMOTION [R. F. NARIMAN, J.]

Provided further that the maximum retail price of a channel shall A
be uniform for all distribution platforms.
(3) It shall be permissible for a broadcaster to offer its pay channels
in the form of bouquet(s) and declare the maximum retail price(s),
per month, of such bouquet(s) payable by a subscriber:
Provided that, while making a bouquet of pay channels, it shall be B
permissible for a broadcaster to combine pay channels of its
subsidiary company or holding company or subsidiary company
of the holding company, which has obtained, in its name, the
downlinking permission for its television channels, from the Central
Government, after written authorization by them, and declare C
maximum retail price, per month, for such bouquet of pay channels
payable by a subscriber:
Provided that such bouquet shall not contain any pay channel for
which maximum retail price per month is more than rupees
nineteen: D
Provided further that the maximum retail price per month of such
bouquet of pay channels shall not be less than eighty five percent
of the sum of maximum retail prices per month of the a-la-carte
pay channels forming part of that bouquet:
Provided further that the maximum retail price per month of such E
bouquet of pay channels shall be uniform for all distribution
platforms:
Provided further that such bouquet shall not contain any free-to-
air channel:
F
Provided also that such bouquet shall not contain both HD and
SD variants of the same channel.
Explanation: For the purpose of this Order, the definition of
“subsidiary company” and “holding company” shall be the same
as assigned to them in the Companies Act, 2013 (18 of 2013).
G
(4) It shall be permissible for a broadcaster to offer promotional
schemes on maximum retail price(s) per month of its a-la-carte
pay channel(s):
Provided that period of any such scheme shall not exceed ninety
days at a time: H
162 SUPREME COURT REPORTS [2018] 14 S.C.R.

A Provided further that the frequency of any such scheme by the
broadcaster shall not exceed twice in a calendar year:
Provided further that the price(s) of a-la-carte pay channel(s)
offered under any such promotional scheme shall be considered
as maximum retail price(s) during the period of such promotional
B scheme:
Provided also that the provisions of Regulations and Tariff Orders
notified by the Authority shall be applicable on the price(s) of a-
la-carte pay channel(s) offered under any such promotional
scheme.
C (5) Every broadcaster, before making any change in the nature of
a channel or in the maximum retail price of a pay channel or in the
maximum retail price of a bouquet of pay channels or in the
composition of a bouquet of pay channels, as the case may be,
shall follow the provisions of all the applicable Regulations and
D Orders notified by the Authority, including but not limited to the
publication of Reference Interconnection Offer.
4. Declaration of network capacity fee and manner of
offering of channels by distributors of television channels.—
- (1) Every distributor of television channels shall declare network
E capacity fee, per month, payable by a subscriber for availing a
distribution network capacity so as to receive the signals of
television channels:
Provided that the network capacity fee, per month, for network
capacity upto initial one hundred SD channels, shall, in no case,
exceed rupees one hundred and thirty, excluding taxes:
F
Provided further that the network capacity fee, per month, for
network capacity in the slabs of twenty five SD channels each,
beyond initial one hundred channels capacity referred to in first
proviso to sub-clause (1), shall, in no case, exceed rupees twenty
excluding taxes:
G
Provided also that one HD channel shall be treated equal to two
SD channels for the purpose of calculating number of channels
within the distribution network capacity subscribed.
(2) Every distributor of television channels shall offer all channels
H available on its network to all subscribers on a-la-carte basis and
STAR INDIA PVT. LTD. v. DEPARTMENT OF INDUSTRIAL 163
POLICY AND PROMOTION [R. F. NARIMAN, J.]

declare distributor retail price, per month, of each pay channel A
payable by a subscriber:
Provided that the distributor retail price, per month, payable by a
subscriber to a distributor of television channels for subscribing to
a pay channel shall, in no case, exceed the maximum retail price,
per month, declared by the broadcasters for such pay channel. B
(3) Every distributor of television channels shall offer to all
subscribers each bouquet of pay channels offered by a broadcaster,
and for which interconnection agreement has been signed with
that broadcaster, without any alteration in its composition and
declare the distributor retail price, per month, for such bouquet C
payable by a subscriber:
Provided that the distributor retail price, per month, payable by a
subscriber to a distributor of television channels for subscribing to
a bouquet of pay channels offered by the broadcaster shall in no
case exceed the maximum retail price, per month, declared by D
the broadcasters for such bouquet of pay channels:
Provided further that such bouquet shall not contain any pay
channel for which maximum retail price per month declared by
the broadcaster is more than rupees nineteen:
Provided further that such bouquet shall not contain any free-to- E
air channel:
Provided also that such bouquet shall not contain both HD and
SD variants of the same channel.
(4) It shall be permissible for a distributor of television channels to
F
offer bouquet(s) formed from pay channels of one or more
broadcasters and declare distributor retail price(s) , per month, of
such bouquet(s) payable by a subscriber:
Provided that such bouquet shall not contain any pay channel for
which maximum retail price per month declared by the broadcaster
is more than rupees nineteen: G

Provided further that the distributor retail price per month of such
bouquet of pay channels shall not be less than eighty five percent
of the sum of distributor retail prices per month of a-la-carte pay
channels and bouquet(s) of pay channels forming part of that
bouquet: H
164 SUPREME COURT REPORTS [2018] 14 S.C.R.

A Provided further that the distributor retail price per month of a
bouquet of pay channels offered by a distributor of television
channels shall, in no case, exceed the sum of maximum retail prices
per month of a-la-carte pay channels and bouquet(s) of pay
channels, declared by broadcasters, forming part of that bouquet:
B Provided further that such bouquet shall not contain any free-to-
air channel:
Provided also that such bouquet shall not contain both HD and SD
variants of the same channel.
Explanation: For the removal of doubt it is hereby clarified that a
C distributor of television channels while forming bouquet under this
clause shall not break a bouquet of pay channels offered by a
broadcaster to form two or more bouquet(s) at distribution level.
(5) It shall be permissible for a distributor of television channels to
offer bouquet(s) formed from free-to-air channels of one or more
D broadcasters.
(6) No distributor of television channels shall charge any amount,
other than the network capacity fee, from its subscribers for
subscribing to free-to-air channels or bouquet(s) of free-to air
channels.
E
(7) Within the distribution network capacity subscribed, in addition
to channels notified by Central Government to be mandatorily
provided to all the subscribers, a subscriber shall be free to choose
any free-to-air channel(s), pay channel(s), or bouquet(s) of
channels offered by the broadcaster(s) or bouquet(s) of channels
F offered by distributors of television channels or a combination
thereof:
Provided that if a subscriber opts for pay channels or bouquet of
pay channels, he shall be liable to pay an amount equal to sum of
distributor retail price(s) for such channel(s) and bouquets in
G addition to network capacity fee.
(8) Subject to sub-clause (1) of clause 4, a distributor of television
channels shall not increase the network capacity fee for a period
of six months from the date of such notification: Provided that a
distributor of television channels, before making any change in the
H
STAR INDIA PVT. LTD. v. DEPARTMENT OF INDUSTRIAL 165
POLICY AND PROMOTION [R. F. NARIMAN, J.]

network capacity fee, shall at least thirty days prior to the scheduled A
change—
(a) inform the Authority; and
(b) inform the subscribers by running scroll on the channel.”
19. In the judgment of Sundar,J., in the Division Bench of the B
Madras High Court, a useful table is set out which not only states the
provisions that have been challenged, but the specific ground on which
they have been challenged. We, therefore, reproduce this table in our
judgment:-
“Provisions of the Interconnection Regulation which Regulate C
content
S l. P ro visio n G round
N o.

1. 6(1) A ll c hann el s (p a y Imp inge s upon broadca st er's
cha nnels a nd free -to -ai r abil it y to pa ckage a T V chan ne l.
cha nnels) t o be offered on No such restric tion on b roadcast er
a-l a-ca rte ba si s. und er C opyright Ac t. D
2. S ec ond proviso to 6(1) Imp inge s upon broadca st er's
- B ouquet of pay c hannel s abil it y to pa ckage a T V chan ne l.
shal l not h av e free-to-air No such restric tion on b roadcast er
c hann el s. und er C opyright Ac t.
- H D and S D varia n t of
sam e channe l ca nnot be in
sam e bo uq uet .
E
3. P roviso to 7(2) - B undl ing Imp inge s upon broadca st er's
of thi rd pa rty chann e ls abil it y to pa ckage a T V chan ne l.
prohibi ted. No such restric tion on b roadcast er
und er C opyright Ac t.
4. 7(4) - B ro ad ca st er c an of fer Di rect ly re gul ate s t he pri cing of a
di scounts t o dis tribut or no t TV cha nnel , the reby also
ex ceedi ng 15% of MR P . regula ting pric ing of i ndividua l
programm es . F
5. F irst provi so to 7 (4) - S um Di rect ly re gul ate s the pri cin g of a
of discount unde r 7(4 ) a nd TV cha nn el , the reby als o
di st ributi on fe e under 7(3) regula ting pric ing of i ndividua l
shall not ex ce ed 35 % of programm es .
M RP.
6. 10(3) r/w 6(1) - M andat ory Imp inge s upon broadca st er's
t o e nter i n to ag ree m ent freedo m t o offer pay chann els
w it h DP O on an a-la-c arte only a s a pa rt of bouquet and n ot
G
basis for pa y c hannel s. as a-la -cart e. No such re strict ion
on broadca st er un der C opyri ght
Ac t.
7. 11(2) - D e emed ext ension D irec tl y i m pinge s th e
of g eo gra phica l te rritory. broadc aster's ri ght under 19(2) to
designa te t he geogra phica l
te rritor y o f e xplo it ati on . H
166 SUPREME COURT REPORTS [2018] 14 S.C.R.

A Provisions of the Tariff Order which regulate content
Sl . P ro v is io n G round
No.

1. 3 (1 ) - A l l c h a n n el s to b e Im p i n g es upon b ro ad ca s te r's
o ffe red o n a-l a -c arte b a si s ab i lit y t o p a ck ag e a T V c h an n e l .
No s u ch re st ri cti o n on
b r o a d c a st er unde r C o p y rig h t
B A c t.
2. 3 (2 )(b ) - D e cl a rat io n o f Im p i n g es upon b ro ad ca s te r's
M R P o f a- l a -ca rt e ch a n n el free d o m to o ffer p a y ch a n n e ls
o n ly as a p ar t o f b o u q u e t an d n o t
as a-l a -ca rte. N o s u c h re st ri cti o n
o n b r o a d c as te r u n d e r C o p y rig h t
A c t.
3. S e co n d p r o v is o to 3 (2 )(b ) - U n d er Se cti o n 3 3A rea d w it h
C M R P o f all p a y c h a n n els to R u le 5 6 o f t h e C o p yr i g h t R u l e s ,
be u n i fo rm ac ro s s 2 0 1 3 , b ro ad c ast er h as th e rig h t t o
d is trib u t io n p la tf o rm s . d e c id e s ep a rat e MRP fo r
d iff e re n t ca teg o r y o f a u di e n ce .
4. Fi rst p ro v i so t o 3 (3 ) - Im p i n g es upon b ro ad ca s te r's
B u n d lin g o f th i rd p a rty ab i lit y t o p a ck ag e a T V c h an n e l .
ch an n e ls p r oh i b it e d . F or e x a m p le , th i rd p a rt y
ch a n n els c a n n o t b e p art o f th e
sam e b o u q u et. No su c h
D res tri cti o n o n b ro ad c as t er u n d e r
C o p y rig h t A c t .
5. S e co n d p ro v i so to 3 (3 ) - D ire ct ly re g u la tes th e p ric in g o f
M R P o f p ay c h a n n e l in a T V ch a n n e l, th e re b y a ls o
b o u q u et n o t t o e x c e ed IN R reg u l ati n g p r ic i n g o f in d iv id u a l
1 9 /- p r o g ram m es .
6. T h ird p r o v is o to 3 (3 ) - D ire ct ly re g u la tes th e p ric in g o f
B o u q u et p r i ce s h al l n o t b e a T V ch a n n e l, th e re b y a ls o
E le s s th a n 8 5 % o f th e s u m o f reg u l ati n g p r ic i n g o f in d iv id u a l
a-la -ca rt e p r ic e s of p r o g ram m es .
in d iv i d u al ch a n n els in t h e
b o u q u et.
7. Fo u rt h p r o v is o t o 3 (3 ) - U n d er R u l e 5 6 o f th e C o p y rig h t
M R P o f a ll b o u q u et s to b e R u le s, 20 1 3 , b ro a d c as te r h as th e
u n ifo rm a cro s s d is tri b u tio n rig h t to d e c id e s e p ara t e M R P fo r
p lat fo r m s . d iff e re n t ca teg o r y o f a u di e n ce .
F 8. Fi fth p rov i so to 3 ( 3 ) - Im p i n g es upon b ro a d c as te r's
B o u q u et o f p ay ch a n n els ab i lit y t o p a ck ag e a T V c h an n e l .
s ha ll n o t h a v e fr ee -to - air No s u ch re st ri cti o n on
ch an n e ls . b r o a d c a st er unde r C o p y rig h t
A c t.
9. S ix th p ro v is o t o 3 ( 3 ) - H D Im p i n g es upon b ro ad ca s te r's
an d SD v a ria n t o f s am e ab i lit y t o p a ck ag e a T V c h an n e l .
ch an n e l ca n n o t b e i n sam e No s u ch re st ri cti o n on
b o u q u et. b r o a d c a st er unde r C o p y rig h t
G A c t.
10. 3 (4 ) - R e st ricti o n on A ll t h e s e r es tri cti o n s im p i n ge
p ro m o ti o n of b o u q u ets , b r o a d c a st er 's ab il it y to
r es tric tio n on tim e, co m m e rci a ll y m o n et ize h is
r es tric tio n o n freq u e n cy . co n t en t.
11. 4 (2 ) - D is tri b u to r t o o ffe r I n d ir ec tl y im p i n g e s u p o n th e
all c h a n n el s o n a -l a -ca rt e b r o a dc a s ter ' s ri gh t to o ff er h i s
b a s is . c h a n n e ls to t h e cu s to m ers o n ly as
H a b o u q u et an d n o t as a -la -ca rt e.”
STAR INDIA PVT. LTD. v. DEPARTMENT OF INDUSTRIAL 167
POLICY AND PROMOTION [R. F. NARIMAN, J.]

20. Since the Regulation made under Section 36 of the said Act is A
under challenge, it must first be stressed that a restrictive meaning cannot
be given to the words “regulation” or “regulate”, as otherwise the very
object of the Act would be stultified. In Deepak Theater v. State of
Punjab, 1992 Supp (1) SCC 684, a case which related to the Punjab
Cinemas (Regulation) Act, 1952 and Rules, this Court referred to the
B
power of licensing and regulation under the said Act as follows:
“5. Witnessing a motion picture has become an amusement to
every person; a reliever to the weary and fatigued; a reveller to
the pleasure seeker; an imparter of education and enlightenment
enlivening to news and current events; disseminator of scientific
knowledge; perpetuator of cultural and spiritual heritage, to the C
teeming illiterate majority of population. Thus, cinemas have
become tools to promote welfare of the people to secure and
protect as effectively as it may a social order as per directives of
the State policy enjoined under Article 38 of the Constitution. Mass
media, through motion picture has thus become the vehicle of D
coverage to disseminate cultural heritage, knowledge, etc. The
passage of time made manifest this growing imperative and the
consequential need to provide easy access to all sections of the
society to seek admission into theatre as per his paying capacity.
Though the right to fix rates of admission is a business incident,
the appellant having created an interest in the general public therein, E
it has become necessary for the State to step in and regulate the
activity of fixation of maximum rates of admission to different
classes, as a welfare weal. Thereby fixation of rates of admission
became a legitimate ancillary or incidental power in furtherance
of the regulation under the Act. Access to and admission into F
theatre is a facility and concomitant right to a cinegoing public.
Classification of seats and fixation of rates of admission according
to paying capacity of a cinegoer is also an integral power of
regulation. Power to fix rates of admission includes power to
amend and revise the rates from time to time. The statute vests
that power in the licensing authority subject to control by the State G
Government. The fixation of the rates of admission has thus
become an integral and essential part of the power and regulation
of exhibition of cinematograph.”
(Emphasis supplied.)
H
168 SUPREME COURT REPORTS [2018] 14 S.C.R.

A 21. In BSNL v. TRAI, (2014) 3 SCC 222, this Court held:
“80. After the Amendment of 2000, TRAI can either suo motu or
on a request from the licensor make recommendations on the
subjects enumerated in Sections 11(1)(a)(i) to (viii). Under Section
11(1)(b), TRAI is required to perform nine functions enumerated
B in sub-clauses (i) to (ix) thereof. In these clauses, different terms
like “ensure”, “fix”, “regulate” and “lay down” have been used.
The use of the term “ensure” implies that TRAI can issue directions
on the particular subject. For effective discharge of functions under
various clauses of Section 11(1)(b), TRAI can frame appropriate
regulations. The term “regulate” contained in sub-clause (iv)
C
shows that for facilitating arrangement amongst service providers
for sharing their revenue derived from providing telecommunication
services, TRAI can either issue directions or make regulations.
xxx xxx xxx
D 83. In K. Ramanathan v. State of T.N. [K. Ramanathan v. State
of T.N., (1985) 2 SCC 116 : 1985 SCC (Cri) 162] , this Court
interpreted the word “regulation” appearing in Section 3(2)(d) of
the Essential Commodities Act, 1955 and observed: (SCC pp. 130-
31, paras 18-20)
E “18. The word ‘regulation’ cannot have any rigid or inflexible
meaning as to exclude ‘prohibition’. The word ‘regulate’ is difficult
to define as having any precise meaning. It is a word of broad
import, having a broad meaning, and is very comprehensive in
scope. There is a diversity of opinion as to its meaning and its
application to a particular state of facts, some courts giving to the
F term a somewhat restricted, and others giving to it a liberal,
construction. The different shades of meaning are brought out
in Corpus Juris Secundum, Vol. 76 at p. 611:
‘“Regulate” is variously defined as meaning to adjust; to adjust,
order, or govern by rule, method, or established mode; to adjust
G or control by rule, method, or established mode, or governing
principles or laws; to govern; to govern by rule; to govern by,
or subject to, certain rules or restrictions; to govern or direct
according to rule; to control, govern, or direct by rule or
regulations.
H
STAR INDIA PVT. LTD. v. DEPARTMENT OF INDUSTRIAL 169
POLICY AND PROMOTION [R. F. NARIMAN, J.]

“Regulate” is also defined as meaning to direct; to direct by A
rule or restriction; to direct or manage according to certain
standards, laws, or rules; to rule; to conduct; to fix or establish;
to restrain; to restrict.’
(See also Webster’s Third New International Dictionary, Vol.
2, p. 1913 and Shorter Oxford Dictionary, Vol. 2, 3rd Edn., p. B
1784.)
19. It has often been said that the power to regulate does not
necessarily include the power to prohibit, and ordinarily the word
‘regulate’ is not synonymous with the word ‘prohibit’. This is true
in a general sense and in the sense that mere regulation is not the C
same as absolute prohibition. At the same time, the power to
regulate carries with it full power over the thing subject to regulation
and in absence of restrictive words, the power must be regarded
as plenary over the entire subject. It implies the power to rule,
direct and control, and involves the adoption of a rule or guiding
principle to be followed, or the making of a rule with respect to D
the subject to be regulated. The power to regulate implies the
power to check and may imply the power to prohibit under certain
circumstances, as where the best or only efficacious regulation
consists of suppression. It would therefore appear that the word
‘regulation’ cannot have any inflexible meaning as to exclude E
‘prohibition’. It has different shades of meaning and must take its
colour from the context in which it is used having regard to the
purpose and object of the legislation, and the Court must
necessarily keep in view the mischief which the legislature seeks
to remedy.
F
20. The question essentially is one of degree and it is impossible
to fix any definite point at which ‘regulation’ ends and ‘prohibition’
begins. We may illustrate how different minds have differently
reacted as to the meaning of the word ‘regulate’ depending on
the context in which it is used and the purpose and object of the
legislation. In Slattery v. Naylor [(1888) LR 13 AC 446 (PC)] G
the question arose before the Judicial Committee of the Privy
Council whether a bye-law by reason of its prohibiting internment
altogether in a particular cemetery, was ultra vires because the
Municipal Council had only power of regulating internments
whereas the bye-law totally prohibited them in the cemetery in H
170 SUPREME COURT REPORTS [2018] 14 S.C.R.

A question, and it was said by Lord Hobhouse, delivering the judgment
of the Privy Council: (AC p. 447)
‘A rule or bye-law cannot be held as ultra vires merely
because it prohibits where empowered to regulate, as
regulation often involved prohibition.’”
B
xxx xxx xxx
87. Reference in this connection can also be made to the judgment
in U.P. Coop. Cane Unions Federations v. West U.P. Sugar
Mills Assn. [(2004) 5 SCC 430] In that case, the Court interpreted
C the word “regulation” appearing in the U.P. Sugarcane (Regulation
of Supply and Purchase) Act, 1953 and observed: (SCC pp. 454-
55, para 20)
“20. … ‘Regulate’ means to control or to adjust by rule or to
subject to governing principles. It is a word of broad impact
D having wide meaning comprehending all facets not only
specifically enumerated in the Act, but also embraces within
its fold the powers incidental to the regulation envisaged in
good faith and its meaning has to be ascertained in the context
in which it has been used and the purpose of the statute.”
88. It is thus evident that the term “regulate” is elastic enough to
E
include the power to issue directions or to make regulations and
the mere fact that the expression “as may be provided in the
regulations” appearing in clauses (vii) and (viii) of Section 11(1)(b)
has not been used in other clauses of that sub-section does not
mean that the regulations cannot be framed under Section 36(1)
F on the subjects specified in sub-clauses (i) to (vi) of Section
11(1)(b). In fact, by framing regulations under Section 36, TRAI
can facilitate the exercise of functions under various clauses of
Section 11(1)(b) including sub-clauses (i) to (vi).
89. We may now advert to Section 36. Under sub-section (1)
G thereof TRAI can make regulations to carry out the purposes of
the TRAI Act specified in various provisions of the TRAI Act
including Sections 11, 12 and 13. The exercise of power under
Section 36(1) is hedged with the condition that the regulations
must be consistent with the TRAI Act and the rules made
thereunder. There is no other restriction on the power of TRAI to
H
STAR INDIA PVT. LTD. v. DEPARTMENT OF INDUSTRIAL 171
POLICY AND PROMOTION [R. F. NARIMAN, J.]

make regulations. In terms of Section 37, the regulations are A
required to be laid before Parliament which can either approve,
modify or annul the same. Section 36(2), which begins with the
words “without prejudice to the generality of the power under
sub-section (1)” specifies various topics on which regulations can
be made by TRAI. Three of these topics relate to meetings of
B
TRAI, the procedure to be followed at such meetings, the
transaction of business at the meetings and the register to be
maintained by TRAI. The remaining two topics specified in clauses
(e) and (f) of Section 36(2) are directly referable to Sections
11(1)(b)(viii) and 11(1)(c). These are substantive functions of
TRAI. However, there is nothing in the language of Section 36(2) C
from which it can be inferred that the provisions contained therein
control the exercise of power by TRAI under Section 36(1) or
that Section 36(2) restricts the scope of Section 36(1).”
(Emphasis supplied.)
22. However, learned counsel for the appellants relied upon D
Cellular Operators Assn. of India v. TRAI, (2016) 7 SCC 703 and,
in particular, paragraph 41 thereof, which reads as follows:
“41. We find that the impugned Regulation is not referable to
Sections 11(1)(b)(i) and (v) of the Act inasmuch as it has not
been made to ensure compliance with the terms and conditions of E
the licence nor has it been made to lay down any standard of
quality of service that needs compliance. This being the case, the
impugned Regulation is dehors Section 11 but cannot be said to be
inconsistent with Section 11 of the Act. This Court has categorically
held in BSNL [BSNL v. Telecom Regulatory Authority of India, F
(2014) 3 SCC 222] judgment that the power under Section 36 is
not trammelled by Section 11. This being so, the impugned
Regulation cannot be said to be inconsistent with Section 11 of
the Act. However, what has also to be seen is whether the said
Regulation carries out the purpose of the Act which, as has been
pointed out hereinabove, under the amended Preamble to the Act, G
is to protect the interests of service providers as well as consumers
of the telecom sector so as to promote and ensure orderly growth
of the telecom sector. Under Section 36, not only does the Authority
have to make regulations consistent with the Act and the Rules
made thereunder, but it also has to carry out the purposes of the H
172 SUPREME COURT REPORTS [2018] 14 S.C.R.

A Act, as can be discerned from the Preamble to the Act. If, far
from carrying out the purposes of the Act, a regulation is made
contrary to such purposes, such regulation cannot be said to be
consistent with the Act, for it must be consistent with both the
letter of the Act and the purposes for which the Act has been
enacted. In attempting to protect the interest of the consumer of
B
the telecom sector at the cost of the interest of a service provider
who complies with the leeway of an average of 2% of call drops
per month given to it by another Regulation, framed under Section
11(1)(b)(v), the balance that is sought to be achieved by the Act
for the orderly growth of the telecom sector has been violated.
C Therefore, we hold that the impugned Regulation does not carry
out the purpose of the Act and must be held to be ultra vires the
Act on this score.”
(Emphasis supplied.)
23. What is important to note from this judgment is that the balance
D that was sought to be maintained between protecting the interest of
service providers and consumers was destroyed by the impugned
regulations. What is important from our point of view, however, is that
under Section 36 of the TRAI Act, the Authority is empowered to carry
out the purposes of the said Act as can be discerned from the Preamble
E to the Act. What is clear from the amended Preamble to the Act is that
the interests of service providers and consumers are of paramount
importance, both of which have a role to play when regulations are framed
under Section 36.
24. Learned counsel for the appellants also relied upon Petroleum
F and Natural Gas Regulatory Board v. Indraprastha Gas Ltd.
(supra.). In this case, the Petroleum and Natural Gas Regulatory
Board Act, 2006 was the subject matter of discussion by this Court.
This Court, after construing the Act, held that where there is a
cassus omissis, such lacuna cannot be filled up by the judicial
interpretative process. Thus, entities which are neither “common
G carriers” nor “contract carriers” within the tariff regulating powers
of the Board under the Act were not held amenable to regulation.
Further, the reach of the Act, as is clear from a reading of Sections
20 to 22 would make it clear that transportation tariffs for common
carriers and contract carriers alone could be regulated by the
H Board. This would naturally not include a regulation which will
STAR INDIA PVT. LTD. v. DEPARTMENT OF INDUSTRIAL 173
POLICY AND PROMOTION [R. F. NARIMAN, J.]

pertain to network tariff for city or local gas distribution network A
as such a network is neither a common carrier nor a contract
carrier covered by the Act. Further, the laying down of the
compression charge for CNG gas would also, therefore, be wholly
outside the reach of the said Act. This judgment again has no
application to the facts of the present case, given the fact that the
B
Preamble read with Section 11(2) makes it clear that the Regulation
and Tariff Order made thereunder would both be within the reach
of TRAI under the TRAI Act.
25. At this stage, it is also important to set out some of the provisions
of the Indian Telegraph Act, 1885. This Act was amended in 2004 to
include Section 3(1AA). The relevant sections of this Act are set out C
hereinbelow:
“3.(1AA) “telegraph” means any appliance, instrument, material
or apparatus used or capable of use for transmission or reception
of signs, signals, writing, images, and sounds or intelligence of any
nature by wire, visual or other electro magnetic emissions, Radio D
waves or Hertzian waves, galvanic, electric or magnetic means;
Explanation.- “Radio waves” or “Hertzian waves” means electro
magnetic waves of frequencies lower than 3,000 giga-cycles per
second propagated in space without artificial guide.
E
xxx xxx xxx
4. Exclusive privilege in respect of telegraphs, and power
to grant licences.— (1) Within India, the Central Government
shall have the exclusive privilege of establishing, maintaining and
working telegraphs: F
Provided that the Central Government may grant a license, on
such conditions and in consideration of such payments as it thinks
fit, to any person to establish, maintain, or work a telegraph within
any part of India:
Provided further that the Central Government may, by rules made G
under this Act and published in the Official Gazette, permit, subject
to such restrictions and conditions as it thinks fit, the establishment,
maintenance and working—
(a) of wireless telegraphs on ships within Indian territorial
waters and on aircrafts within or above India, or Indian H
territorial waters, and
174 SUPREME COURT REPORTS [2018] 14 S.C.R.

A (b) of telegraphs other than wireless telegraphs within any
part of India.
Explanation.— The payments made for the grant of a licence
under this sub-section shall include such sum attributable to the
Universal Service Obligation as may be determined by the Central
B Government after considering the recommendation made in this
behalf by the Telecom Regulatory Authority of India established
under sub-section (1) of Section 3 of the Telecom Regulatory
Authority of India Act, 1997 (24 of 1997).
(2) The Central Government may, by notification in the Official
C Gazette, delegate to the telegraph authority all or any of its powers
under the first proviso to sub-section (1).
The exercise by the telegraph authority of any power so delegated
shall be subject to such restrictions and conditions as the Central
Government may, by the notification, think fit to impose.”
D 26. Sections 2(2) and 5 of the Indian Wireless Telegraphy Act,
1933 are also set out hereinbelow:
“2(2) “wireless telegraphy apparatus” means any apparatus,
appliance, instrument or material used or capable of use in wireless
communication, and includes any article determined by rule made
E under Section 10 to be wireless telegraphy apparatus, but does
not include any such apparatus, appliance, instrument or material
commonly used for other electrical purposes, unless it has been
specially designed or adapted for wireless communication or forms
part of some apparatus, appliance, instrument or material specially
F so designed or adapted, nor any article determined by rule made
under Section 10 not to be wireless telegraphy apparatus;
xxx xxx xxx
5. Licenses.—The telegraph authority constituted under the Indian
Telegraph Act, 1885 (13 of 1885), shall be the authority competent
G to issue licenses to possess wireless telegraphy apparatus under
this Act, and may issue licenses in such manner, on such conditions
and subject to such payments as may be prescribed.”
27. It is clear that only a person who is licensed under Section 5
of the Indian Wireless Telegraphy Act can use a teleport from India
H from which a TV channel is to be uplinked to a satellite. Equally, to be
STAR INDIA PVT. LTD. v. DEPARTMENT OF INDUSTRIAL 175
POLICY AND PROMOTION [R. F. NARIMAN, J.]

uplinked to a satellite and thereafter downlinked from such satellite to an A
MSO, permission would be required from the Central Government. This
would be clear from a reading of the separate guidelines for uplinking
and downlinking channels issued by the Government of India.
28. So far as the uplinking guidelines are concerned, on 5.12.2011,
the Ministry of Information and Broadcasting (Broadcasting Wing) set B
out detailed conditions by which the uplinking of TV channels may be
made. Under Clause 5.9 of the said guidelines, the Government of India
shall have the right to suspend the permission of a company for a specified
period in the public interest, or in the interest of national security, to
prevent misuse.
C
29. Similarly, insofar as the policy guidelines for downlinking of
TV channels is concerned, the Ministry has given detailed guidelines of
the same date, i.e., 5.12.2011. Among other things, it is stated:-
“2.4. No News and Current Affairs channel shall be permitted to
be downlinked if it does not meet the following additional conditions: D
2.4.1.That it does not carry any advertisements aimed at Indian
viewers;
2.4.2.That it is not designed specifically for Indian audiences;
2.4.3.That it is a standard international channel;
E
2.4.4.That it has been permitted to be telecast in the country of
its uplinking by the regulatory authority of that country;
Provided that the Government may waive/modify the condition
under clause 2.4.1 on a case-by-case basis.
xxx xxx xxx F

5. BASIC CONDITIONS/OBLIGATIONS
5.1. The Company permitted to downlink registered channels shall
comply with the Programme and Advertising Code prescribed
under the Cable Television Networks (Regulation) Act, 1995. G
5.2. The company shall ensure compliance of the provisions of
Sports Broadcasting Signals (Mandatory sharing with Prasar
Bharati) Act 11 of 2007 and the Rules, Guidelines, Notifications
issued thereunder.
H
176 SUPREME COURT REPORTS [2018] 14 S.C.R.

A 5.3. The applicant company shall adhere to any other Code/
Standards guidelines/restrictions prescribed by Ministry of
Information & Broadcasting, Government of India for regulation
of content on TV channels from time to time.
5.4. The applicant company shall submit audited annual accounts
B of its commercial operations in India.
5.5. The applicant company shall obtain prior approval of the
Ministry of Information and Broadcasting before undertaking any
upgradation, expansion or any other changes in the downlinking
and distribution system/network configuration.
C 5.6. The applicant company shall provide Satellite TV Channel
signal reception decoders only to MSO/Cable Operators registered
under the Cable Television Networks (Regulation) Act 1995 or to
a DTH operator registered under the DTH guidelines issued by
Government of India or to an Internet Protocol Television (IPTV)
D Service Provider duly permitted under their existing Telecom
License or authorized by Department of Telecommunications or
to a HITS operator duly permitted under the policy guidelines for
HITS operators issued by Ministry of Information and
Broadcasting, Government of India to provide such service.

E 5.7. The applicant company shall ensure that any of its channels,
which is unregistered or prohibited from being telecast or
transmitted or re-transmitted in India, under the Cable Television
Networks (Regulation) Act 1995 or the DTH guidelines or any
other law for the time being in force, cannot be received in India
through encryption or any other means.
F
5.8. The Union Government shall have the right to suspend the
permission of the company/registration of the channel for a
specified period in public interest or in the interest of National
security to prevent the misuse of the channel. The company shall
immediately comply with any direction issued in this regard.
G
5.9. The applicant company seeking permission to downlink a
channel shall operationalise the channels within one year from
the date of the permission being granted by the Ministry of
Information and Broadcasting failing which the permission will
liable to be withdrawn without any notice in this regard. However,
H
STAR INDIA PVT. LTD. v. DEPARTMENT OF INDUSTRIAL 177
POLICY AND PROMOTION [R. F. NARIMAN, J.]

the company shall be afforded a reasonable opportunity of being A
heard before such a withdrawal.
5.10. The company/channel shall adhere to the norms, rules and
regulations prescribed by any regulatory authority set up to regulate
and monitor the Broadcast Services in the country,
5.11. The applicant company shall give intimation to Ministry of B
Information and Broadcasting regarding change in the directorship,
key executives or foreign direct investment in the company, within
15 days of such a change taking place. It shall also obtain security
clearance for such changes in its directors and key executives.
5.12. The applicant company shall keep a record of programmes C
downlinked for a period of 90 days and to produce the same before
any agency of the Government as and when required.
5.13. The applicant company shall furnish such information as
may be required by the Ministry of Information and Broadcasting
from time to time. D
5.14. The applicant company shall provide the necessary
monitoring facility at its own cost for monitoring of programmes
or content by the representative of the Ministry of Information
and Broadcasting or any other Government agency as and when
required. E
5.15. The applicant company shall comply with the obligations
and conditions prescribed in the downlinking guidelines issued by
the Ministry of Information and Broadcasting, and the specific
downlinking permission agreement and registration of each
channel. F
5.16. In the event of any war, calamity/national security concerns,
the Government shall have the power to prohibit for a specified
period the downlinking/reception/transmission and re-transmission
of any or all channels. The Company shall immediately comply
with any such directions issued in this regard.” G
30. We are of the view that 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. It is important to
remember that under Section 11(1)(a)(iv), one of the functions of the H
178 SUPREME COURT REPORTS [2018] 14 S.C.R.

A 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.
What is also clear from Section 11(1)(b), is that terms and conditions of
interconnectivity between different service providers have to be fixed,
which necessarily includes terms that relate not only to carriage simpliciter
B
as submitted by Dr. Singhvi, 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.
Towards this end, Section 11(2) makes it clear that the Authority may,
C 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. Dr. Singhvi argued that the literal language of
this sub-section, which would undoubtedly bring in rates laid down in the
Tariff Order, would have to be constricted by the language of the last
part of the provision, viz., “including the rates at which messages
D
shall be transmitted to any country outside India”. We are afraid
that this is against basic canons of construction, as the expression
“including” would only refer to a part of what precedes the expression
and cannot therefore constrict the part that has gone before. The plain
literal language of Section 11(2) makes it clear that rates at which
E 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. Shri Dwivedi is absolutely right in
saying that at no stage is content of a TV channel sought to be regulated,
F
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 we may hasten to add 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
G are outside the “jurisdiction” of TRAI. Dr. Singhvi’s argument on this
score must therefore fail.
31. In fact, in Avishek Goenka v. Union of India, (2012) 5
SCC 275, this Court has already held:

H
STAR INDIA PVT. LTD. v. DEPARTMENT OF INDUSTRIAL 179
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“18. If one examines the powers and functions of TRAI, as A
postulated under Section 11 of the Act, it is clear that TRAI would
not only recommend, to DoT, the terms and conditions upon which
a licence is granted to a service provider but has to also ensure
compliance with the same and may recommend revocation of
licence in the event of non-compliance with the regulations. It has
B
to perform very objectively one of its main functions i.e. to facilitate
competition and promote efficiency in the operation of the
telecommunication services, so as to facilitate growth in such
services. It is expected of this regulatory authority to monitor the
quality of service and even conduct periodical survey to ensure
proper implementation.” C
32. We must also hasten to add that the power under Section
36(1) of the Act is very wide and not constricted by the provisions of
Section 11, as was held in BSNL v. TRAI (supra.).
33. Equally, in Hotel & Restaurant Assn. v. Star India (P)
Ltd., (2006) 13 SCC 753, this Court has held:- D

“24. Section 11 of the TRAI Act provides for the functions
of TRAI. Clause (a) of sub-section (1) of Section 11 of
the TRAI Act empowers TRAI to make recommendations either
suo motu or on the request from the licensor, on the matters
enumerated therein. Clause (b) thereof empowers it inter alia to E
fix the terms and conditions of interconnectivity between the
service providers.
25. Sub-section (2) of Section 11 of the TRAI Act contains a non
obstante clause providing that TRAI may frame from time to time
by order(s) notified in the Official Gazette the rates at which the F
telecommunication services within India and outside India shall
be provided under the said Act including the rates at which
messages shall be transmitted to any country outside India. Proviso
appended to sub-section (2) thereof empowers TRAI to notify
different rates for different persons or class of persons for similar G
telecommunication services and where different rates are fixed
as aforesaid TRAI shall record the reasons therefor.
xxx xxx xxx

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180 SUPREME COURT REPORTS [2018] 14 S.C.R.

A 55. TRAI exercises a broad jurisdiction. Its jurisdiction is not only
to fix tariff but also laying down terms and conditions for providing
services. Prima facie, it can fix norms and the mode and manner
in which a consumer would get the services.
56. The role of a regulator may be varied. A regulation may provide
B for cost, supply of service on non-discriminatory basis, the mode
and manner of supply making provisions for fair competition
providing for a level playing field, protection of consumers’ interest,
prevention of monopoly. The services to be provided for through
the cable operators are also recognised. While making the
regulations, several factors are, thus required to be taken into
C account. The interest of one of the players in the field would not
be taken into consideration throwing the interest of others to the
wind.”
(Emphasis supplied.)

D 34. It is interesting to note, as has been stated by Shri Dwivedi,
that in Star India’s response to the consultative paper of 29.1.2016, Star
India itself has requested that the Regulation and Tariff Order be fixed
on the basis of the principles that are now contained therein. For example,
Star India’s response to whether a reasonable wholesale price cap can
be ensured for mass genres, was as follows:-
E
“Reasonable wholesale price cap to be ensured for the mass
genres
Channels need to be incentivized for creating diverse and
innovative content
F Incumbent flagship channels have been suffering from
legacy price and bouquet freeze.
All channels should earn fair share of consumers’ ARPU.
Our research findings reveal that basis current ARPUs,
G share of viewership of flagship channels, and existing revenue
share of the broadcasters in the addressable market, the value
attributed by the market to the flagship channels is significantly
more than the existing wholesale list prices of these channels.

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STAR INDIA PVT. LTD. v. DEPARTMENT OF INDUSTRIAL 181
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Accordingly, the retail value ascribed to flagship A
entertainment channels by consumers, translate into a
wholesale price of Rs.11/- to Rs.28/-. For details refer to
Annexure A.
Therefore, the wholesale cap should be Rs.28/- to allow
for optimum monetization of the flagship channels. If the B
channel values are allowed to be corrected basis consumer
demand the share of the channel in the ARPUs shall be
realigned to reflect their true value proposition without leading
to any arbitrary or perverse price hikes. Further the proposed
discount cap will effectively eliminate pricing distortions. C
However, in the interest of enabling a smooth and seamless
transition to full addressability without creating any
unnecessary chaos we are proposing the following caps, in
the transition phase. Any lower cap will not only stifle
investments in innovative content but also continue to restrict D
incumbent channels whose rates were frozen in 2003-2004
from realizing their real value.
Mass Genre Proposed
Price
Cap (Rs.)
E
General 12.00
Entertainment
(Hindi & Regional)
Movies (Hindi & 10.00
Regional)
Sports 18.00 F

These caps should be subject to automatic annual revision,
basis inflation.”
While answering whether broadcasters should offer wholesale discounts
to distribution platform operators (hereinafter referred to as a “DPO”) G
which should be transparently available as part of the reference
interconnect offer (hereinafter referred to as “RIO”), Star India has
stated:
“Wholesale discounts to be subject to a maximum overall
cap of 33%
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182 SUPREME COURT REPORTS [2018] 14 S.C.R.

A As explained above, there are wide variety of parameters
that a single broadcaster may want to drive basis various
business requirements
33% discount will be sufficient to effectively drive only a
few business requirements
B Any discounting cap lower than 33% will render the
discounting structure ineffective/unworkable.”
Similarly, so far as high definition channels are concerned, Star India
had this to say:

C “1. HD channels offer a viewer experience that is distinctly
different from SD channels
- The production, transmission and re-transmission of HD
channels entail substantial investments.
- HD channels offer distinctly superior audio and video quality
D to the viewers through cutting edge technology used right
from shooting of content, production, post-production,
transmission & re-transmission. For detailed explanation refer
to Annexure B.
- The consumption of HD channel requires significant
E investment by the consumer in an HD TV and HD set-top
box. As such, these channels are aspirational and for affluent
audiences who demand better content & quality offering and
have the capacity to pay for it.
2. Price forbearance for HD channels should continue
F - HD channel can be subscribed by only those subscribers
who can afford specialized HD set-top box as well as HD
TV, which comes at a premium.
- The HD channel market has witnessed a robust growth
and has allowed broadcasters to invest in quality and innovative
G content. Over the last four years market forces have enabled
the channels to discover their real prices and desired
penetration.
- This has been possible because of the laudable decision of
the Authority to keep HD channels outside the regulatory
H purview. With upcoming 3D, 4D and virtual reality it would
STAR INDIA PVT. LTD. v. DEPARTMENT OF INDUSTRIAL 183
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indeed be a regressive step if the Authority were to now A
regulate HD channels thereby sending out a negative signal
to potential investments in these technologies.
- Hence we recommend that the Authority should continue
to keep HD channels outside the regulatory ambit.
- In order to protect the interest of subscribers and to foster B
further growth in this segment, we recommend that HD
channels should adhere to twin conditions and discounting
caps at the wholesale and retail.
- Discount on wholesale prices should be capped at 33% to
ensure a viable a-la-carte fallback option for DPOs. C

- Retail a-la-carte prices should be linked to wholesale prices
(same linkage multiplier as used for SD channels).
- Discount at retail level also to be limited to 33% to ensure a
viable a-la-carte fallback option for consumer. D
3. Bundling of HD and SD channels should not be allowed,
both at wholesale and retail levels.
4. Charging of access fee for HD channels should not be
allowed at retail level.
5. DPOs free to sell HD channels as a-la-carte as well as E
bouquet(s) of HD channels.
6. Consumers and DPOs should have a choice to subscribe
to only HD channels or only SD channels or both combined
but purchased separately.”
F
Equally, insofar as whether free to air and pay channel bouquets
are concerned, Star India itself stated that they should not be bundled
together thus:-
“FTA and Pay channels should not be bundled together
- As has been highlighted in the Preamble, we believe that G
FTA channels should be free to consumer.
- Pay and FTA channels should not be bundled in the same
bouquet.

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184 SUPREME COURT REPORTS [2018] 14 S.C.R.

A - The declaration of a-la-carte rate is only with regard to pay
channels, as per existing regulations. Allowing a-la-carte
pricing of FTA channels is thus not in accordance with the
extent regulatory constructs.
- Pricing FTA channels at retail level and bundling them with
B Pay channels leads to price distortions by bloating the bouquet
size and price, which is not in consumer interest.
Creating separate pay bouquets will ensure consumers
are provided true visibility of pay channel pricing.”
35. It is only when TRAI issued a second consultation paper dated
C 4.5.2016 that Star India submitted its response in June, 2016 where it
raised for the first time the issue relating to the Copyright Act as an
afterthought. What is important to notice is that even in this response,
Star India reiterated that discount caps should be provided for as this
checks discriminatory behavior during negotiation and will facilitate
D designing of discount criteria based on intelligible differentia which will
help serve the diverse needs of consumers. In a third response to the
draft regulations and tariff order, Star India raised jurisdictional issues of
TRAI.
36. Pursuant to these and other inputs, TRAI has in its explanatory
E memorandum given reasons for the Tariff Order as follows:-
“64. The Authority has noted that at present the uptake of channels
on a-la-carte basis is negligible as compared to the bouquet
subscriptions. Analysis yields that the prime reason for such poor
uptake of a-la-carte channels is that the a-la-carte rates of
F channels are disproportionately high as compared to the bouquet
rates and further, there is no well defined relationship between
these two rates. As per data available with TRAI, some bouquets
are being offered by the distributors of television channels at a
discount of upto 80%-90% of the sum of a-la-carte rates of pay
channels constituting those bouquets. These discounts are based
G on certain eligibility criteria/conditions to be fulfilled by the
distributor of television channels in order to avails those discounts
from broadcasters. Such high discounts force the subscribers to
take bouquets only and thus reduce subscriber choice. As a result,
while technically, a-la-carte rates of channels are declared, these
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STAR INDIA PVT. LTD. v. DEPARTMENT OF INDUSTRIAL 185
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are illusive and subscribers are left with no choice but to opt for A
bouquets. Bouquets formed by the broadcasters contain only few
popular channels. The distributors of television channels are often
asked to take the entire bouquet as otherwise they are denied the
popular channels altogether or given such popular channels at
RIO rates. To make the matters worse, the distributors of television
B
channels have to pay as if all the channels in the bouquet are
being watched by the entire subscriber base, when in fact only
the popular channels will have high viewership. In such a scenario,
at the retail end, the distributors of television channels somehow
push these channels to maximum number of subscribers so as to
recover costs. This marketing strategy based on bouquets C
essentially results in ‘perverse pricing’ of bouquets vis-à-vis the
individual channels. As a result, the customers are forced to
subscribe to bouquets rather than subscribing to a-la-carte channels
of their choice. Thus, in the process, the public, in general, end up
paying for “unwanted” channels and this, in effect, restricts
D
subscriber choice. Bundling of large number of unwanted channels
in bouquets also result in artificial occupation of distributors’
network capacity. This acts as an entry barrier for newer TV
channels.
65. In order to facilitate subscribers to exercise their options in
line with intention of lawmakers to choose individual channels, in E
the new framework the broadcasters will declare to customers/
subscribers the MRP of their a-la-carte channels and bouquets of
pay channels. In order to ensure that prices of the a-la-carte
channels are kept reasonable, the maximum discount permissible
in formation of a bouquet has been linked with the sum of the a- F
la-carte prices of the of pay channels forming that bouquet. A
broadcaster can offer a maximum discount of 15% while offering
its bouquet of channels over the sum of MRP of all the pay channels
in that bouquet so as to enable customer choice through a-la-
carte offering and also prevent skewed a-la-carte and bouquet
pricing (refer example 1). The bouquet(s) offered by the G
broadcasters to subscribers shall be provided by the distributors
of television channels to the subscribers without any alteration in
composition of the bouquet(s). In case a broadcaster feels that

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186 SUPREME COURT REPORTS [2018] 14 S.C.R.

A more discount can be provided in formation of the bouquet, it
indirectly means that a-la-carte prices at the first stage has been
kept high and there is a need to revise such a-la-carte prices
downwardly. Full flexibility has been given to broadcasters to
declare price of their pay channels on a-la-carte basis to correct
such situations, if it may come.
B
66. Some stakeholders are of the opinion that limiting the discount
to subscribers while forming bouquets is anti subscriber. In this
regard, while the Authority wants to facilitate the availability of a-
la-carte choice to customers/subscribers, it does not intend to
encroach upon the freedom of broadcasters and distributors to do
C business. During the discussions in the Parliament on the motion
for consideration of the Cable Television Networks (Regulation)
Amendment Bill, 2011, the then Minister of Information and
Broadcasting emphasised the need to establish a system for
subscribers to choose a-la-carte channels of choice. The Authority
D has also made several attempts in this regard, but for one or the
other reason could not succeed. Here it is important to understand
that the Authority has not been able to do pricing of channels in
the absence of pricing of content. Present trends indicate that
majority of channels are priced much below the prevailing ceiling,
but higher ceilings were prescribed to give flexibility to broadcasters
E to monetise their channels and freedom to do business. Further,
different channels even in the same genre may have varying cost
of production and potential to monetise, but within the framework.
A broadcaster may price even non-driver channels at a much
higher value that they can command. Non-discovery of reasonable
F price of a channel in a market is one of the constraints that can be
manipulated and misused to price a channel in a-la-carte from
which is illusionary. Such high a-la-carte prices permits
broadcasters/distributors to provide high discounts to push non-
drivers channels in form of bouquets to the subscribers while
reducing the probability of choosing the a-la-carte channels of
G choice as required by the lawmakers in the Parliament. The
possibility to forcing bouquets over a-la-carte choice by using
higher discounts can be further understood by following example,
where a broadcaster has a total of 35 pay channels out of which
only 5 are driver channels:
H
STAR INDIA PVT. LTD. v. DEPARTMENT OF INDUSTRIAL 187
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Channel Discount
75%
Discount
60%
Discount
45%
Discount
30%
Discount
15%
A
Channel 1 a-la-carte price 19 19 19 19 19

Channel 2 a-la-carte price 10 10 10 10 10

Channel 3 a-la-carte price 12 12 12 12 12

Channel 4 a-la-carte price 5 5 5 5 5
B
Channel 5 a-la-carte price 4 4 4 4 4

Sum of a-la-carte prices of 5 50 50 50 50 50
driver pay channels

Sum of a-la-carte prices of 30 30 30 30 30 30
non-driver pay channels (@
Re 1) C
Total price of 35 a-la-carte 80 80 80 80 80
pay channels

Pric e of bouquet of 35 pay 20 32 44 56 68
channels (with discount on
sum of a-la-carte prices)
D
The above table clearly indicates that in case the amount of discount
offered by the broadcaster, over the sum of a-la-carte prices of
pay channels, while forming the bouquet of those pay channels is
very high (75%), the price of bouquet becomes much lower than
the sum of a-la-carte prices to the extent that it is almost equal to E
a-la-carte price of one driver channel. Such amount of discount is
anti customer/subscriber as it discourages a-la-carte selection of
channels. As the amount of discount on formation of bouquet
decreases, the difference between the prices of bouquet and the
sum of a-la-carte prices also decreases. In case the amount of
F
discount is fixed at 15%, the price of bouquet becomes higher
than the sum of a-la-carte prices of driver channels; thereby
encouraging a subscriber to choose a-la-carte channels of his
choice.
67. In the present regulatory framework incidences have come
G
to the knowledge where discount upto 90% on the declared RIO
prices has been given by broadcasters. Obviously such efforts kill
competition and reduce a-la-carte choice which is anti-subscriber.
Accordingly, the Authority has prescribed a discount of 15% to
be provided by broadcasters at wholesale level and further 15%
to be provided by distributors at retail level. The net effect to H
188 SUPREME COURT REPORTS [2018] 14 S.C.R.

A subscribers at retail level will be a discount of approximately 30%
on the bouquets of channels. Therefore flexibility of formation of
bouquet has been given to broadcasters and MSOs both to such
an extent that total permissible discount does not kill the a-la-
carte choice. The Authority has been careful in prescribing a
framework which does not encourage non-driver channel to be
B
pushed to subscribers against their choice. Non-driver channels
which are provided as part of bouquets not only kill choice of the
ala-carte channels but also eat away the channel carrying capacity
available with distributors which may result in artificial capacity
constraints at distribution platforms for launch of new/competitive
C channels. Such restrictions are anti-subscriber and have to be
carefully handled. Accordingly, the Authority has consciously
decided the present framework of prescribing relationship between
a-la-carte and bouquet prices to protect interest of customers/
viewers and as well as those of service providers. However, the
Authority will keep a watch on the developments in the market
D
and may review the maximum permissible discount while offering
a bouquet, in a time period of about two years.
68. A broadcaster is free to offer its pay channels in the form of
bouquet(s) to customers. While subscribing to bouquet, a customer
may not be aware of the price of each channel forming the
E bouquet. Abnormal high price of a pay channel may result in higher
price of a bouquet leading to adverse impact on subscribers’
interests. It is an established fact that bundling of channels
complicates and obscures their pricing. Prices are obscured
because subscribers do not always understand the relationship
F between the bundle price and a price for each component.
However, the bundling of channels offers convenience to the
subscribers as well as services providers in subscription
management. Keeping in view these realties and to protect the
interests of subscribers, the Authority has prescribed a ceiling of
Rs. 19/- on the MRP of pay channels which can be provided as
G part of a bouquet. Therefore, any pay channel having MRP of
more than Rs. 19/- cannot become part of any bouquet. The
amount of Rs. 19/- has been prescribed keeping in view the
prevailing highest genre wise ceilings of Rs. 15.12 for all
addressable systems between broadcaster & DPOs at wholesale
H level and further enhancing it 1.25 times to account for DPOs
STAR INDIA PVT. LTD. v. DEPARTMENT OF INDUSTRIAL 189
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distribution fee. Broadcasters also have complete freedom to price A
their pay channels which do not form part of any bouquet and
offered only on a-la-carte basis. Similar conditions will also be
applicable to DPOs for formation of the bouquets. However, the
Authority will keep a watch on the developments in the market
and may review the manner in which a channel can be provided
B
as part of a bouquet, in a time period of about two years.”

(Emphasis supplied.)
37. It can thus be seen that 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 C
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 D
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. E
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 a-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 F
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 G
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 H
190 SUPREME COURT REPORTS [2018] 14 S.C.R.

A 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. We are, therefore,
B
clearly of the view that 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. Consequently, we agree with the conclusion of the learned
Chief Justice and the third learned Judge of the Madras High Court that
C these writ petitions deserve to be dismissed.
38. Since submissions have been made by Dr. Singhvi on the reach
of various other Acts, it is a little important to deal with the same.
39. Dr. Singhvi relied heavily upon the Sports Act. The Statement
of Objects and Reasons of this Act makes it clear that the distribution of
D broadcasting signals of sporting events of public interest is not
disseminated to persons who do not have access to satellite and Cable
TV, most of whom are in rural areas. Since the downlinking and uplinking
policy guidelines of the Government have been challenged in courts as
lacking statutory sanction, it has become necessary that sporting events
E of national importance reach the general public on a free to air basis. It
is for this reason that the definitions of “broadcaster”, “broadcasting”,
etc. refer to content. The following are certain relevant terms as defined
under the Sports Act:
“2.(1)(a) “broadcaster” means any person who provides a content
F broadcasting service and includes a broadcasting network service
provider when he manages and operates his own television or
radio channel service;
(b) “broadcasting” means assembling and programming any form
of communication content, like signs, signals, writing, pictures,
G images and sounds, and either placing it in the electronic form on
electro-magnetic waves on specified frequencies and transmitting
it through space or cables to make it continuously available on the
carrier waves, or continuously streaming it in digital data form on
the computer networks, so as to be accessible to single or multiple
users through receiving devices either directly or indirectly; and
H all its grammatical variations and cognate expressions;
STAR INDIA PVT. LTD. v. DEPARTMENT OF INDUSTRIAL 191
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(c) “broadcasting service” means assembling, programming and A
placing communication content in electronic form on the electro-
magnetic waves on specified frequencies and transmitting it
continuously through broadcasting network or networks so as to
enable all or any of the multiple users to access it by connecting
their receiver devices to their respective broadcasting networks
B
and includes the content broadcasting services and the
broadcasting network services;
(d) “broadcasting networks service” means a service, which
provides a network of infrastructure of cables or transmitting
devices for carrying broadcasting content in electronic form on
specified frequencies by means of guided or unguided electro- C
magnetic waves to multiple users, and includes the management
and operation of any of the following:
(i) Teleport/Hub/Earth Station;
(ii) Direct-to-Home (DTH) Broadcasting Network, D
(iii) Multi-system Cable Television Network,
(iv) Local Cable Television Network,
(v) Satellite Radio Broadcasting Network,
(vi) any other network service as may be prescribed by the E
Central Government;
xxx xxx xxx
(h) “content” means any sound, text, data, picture (still or moving),
other audio-visual representation, signal or intelligence of any
nature or any combination thereof which is capable of being F
created, processed, stored, retrieved or communicated
electronically;
(i) “content broadcasting service” means the assembling,
programming and placing content in electronic form and
transmitting or retransmitting the same on electro-magnetic waves G
on specified frequencies, on a broadcasting network so as to make
it available for access by multiple users by connecting their
receiving devices to the network, and includes the management
and operation of any of the following:
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192 SUPREME COURT REPORTS [2018] 14 S.C.R.

A (i) terrestrial television service,
(ii) terrestrial radio service,
(iii) satellite television service,
(iv) satellite radio service,
B (v) cable television channel service,
(vi) community radio service,
(vii) any other content broadcasting services as may be
prescribed by the Central Government.”
C The heart of the Sports Act is contained in Sections 3 and 5 thereof,
which state as follows:-
“3. Mandatory sharing of certain sports broadcasting
signals.—(1) No content rights owner or holder and no television
or radio broadcasting service provider shall carry a live television
D broadcast on any cable or Direct-to-Home 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
E conditions as may be specified.
(2) The terms and conditions under sub-section (1) shall also
provide that the advertisement revenue sharing between the
content rights owner or holder and the Prasar Bharati shall be in
the ratio of not less than 75:25 in case of television coverage and
F 50:50 in case of radio coverage.
(3) The Central Government may specify a percentage of the
revenue received by the Prasar Bharati under sub-section (2),
which shall be utilised by the Prasar Bharati for broadcasting other
sporting events.
G
xxx xxx xxx
5. Power of the Central Government to issue Guidelines.—
The Central Government shall take all such measures, as it deems
fit or expedient, by way of issuing Guidelines for mandatory sharing
of broadcasting signals with Prasar Bharati relating to sporting
H
events of national importance:
STAR INDIA PVT. LTD. v. DEPARTMENT OF INDUSTRIAL 193
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Provided that the Guidelines issued before the promulgation of A
the Sports Broadcasting Signals (Mandatory Sharing with Prasar
Bharati) Ordinance, 2007 (Ord. 4 of 2007) shall be deemed to
have been issued validly under the provision of this section.”
40. Shri Dwivedi is therefore right that the object of the Sports
Act has nothing to do with the validity of the Regulation and Tariff Order B
made by TRAI under the TRAI Act. Content is referred to in the Sports
Act only for the reason stated in the Objects and Reasons. Secondly, as
has correctly been argued by Shri Dwivedi and as has been held by us
above, the TRAI Act, as well as the Regulation and Tariff Order, do not
in any manner affect the content of the TV channels that are broadcast
by the broadcasters in these cases. C

41. Dr. Singhvi then relied upon the Cable TV Act as follows:
“2.(a-i) “Authority” means the Telecom Regulatory Authority of
India established under sub-section (1) of Section 3 of the Telecom
Regulatory Authority of India Act, 1997 (24 of 1997); D
(a-ii) “Broadcaster” means a person or a group of persons, or
body corporate, or any organisation or body providing programming
services and includes his or its authorised distribution agencies;
(a-iii) “cable operator” means any person who provides cable
service through a cable television network or otherwise controls E
or is responsible for the management and operation of a cable
television network and fulfils the prescribed eligibility criteria and
conditions;
(b) “cable service” means the transmission by cables of
programmes including re-transmission by cables of any broadcast F
television signals;
(c) “cable television network” means any system consisting of a
set of closed transmission paths and associated signal generation,
control and distribution equipment, designed to provide cable
service for reception by multiple subscribers; G
xxx xxx xxx
4-A. (3) If the Central Government is satisfied that it is necessary
in the public interest so to do, and if not otherwise specified by the
Authority, it may direct the Authority to specify, by notification in
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194 SUPREME COURT REPORTS [2018] 14 S.C.R.

A the Official Gazette, one or more free-to-air channels to be included
in the package of channels forming basic service tier and any one
or more such channels may be specified, in the notification, genre-
wise for providing a programme mix of entertainment, information,
education and such other programmes and fix the tariff for basic
service tier which shall be offered by the cable operators to the
B
consumers and the consumer shall have the option to subscribe to
any such tier:
Provided that the cable operator shall also offer the channels in
the basic service tier on a la carte basis to the subscriber at a
tariff specified under this sub-section.
C
(4) The Central Government or the Authority may specify in the
notification referred to in sub-section (3), the number of free-to-
air channels to be included in the package of channels forming
basic service tier for the purposes of that sub-section and different
numbers may be specified for different States, cities, towns or
D areas, as the case may be.
xxx xxx xxx
Explanation.—For the purposes of this section—
(a) “addressable system” means an electronic device (which
E includes hardware and its associated software) or more than
one electronic device put in an integrated system through
which signals of cable television network can be sent in
encrypted form, which can be decoded by the device or
devices, having an activated Conditional Access System at
F the premises of the subscriber within the limits of authorisation
made, through the Conditional Access System and the
subscriber management system, on the explicit choice and
request of such subscriber, by the cable operator to the
subscriber;
(b) “basic service tier” means a package of free-to-air
G
channels to be offered by a cable operator to a subscriber
with an option to subscribe, for a single price to subscribers
of the area in which his cable television network is providing
service;

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(c) “encrypted”, in respect of a signal of cable television A
network, means the changing of such signal in a systematic
way so that the signal would be unintelligible without use of
an addressable system and the expression “unencrypted” shall
be construed accordingly;
(d) “free-to-air channel”, in respect of a cable television B
network, means a channel for which no subscription fee is to
be paid by the cable operator to the broadcaster for its re-
transmission on cable;
(e) “pay channel”, in respect of a cable television network,
means a channel for which subscription fees is to be paid to C
the broadcaster by the cable operator and due authorisation
needs to be taken from the broadcaster for its re-transmission
on cable;
(f) “subscriber management system” means a system or
device which stores the subscriber records and details with D
respect to name, address and other information regarding the
hardware being utilised by the subscriber, channels or bouquets
of channels subscribed to by the subscriber, price of such
channels or bouquets of channels as defined in the system,
the activation or deactivation dates and time for any channel
or bouquets of channels, a log of all actions performed on a E
subscriber’s record, invoices raised on each subscriber and
the amounts paid or discount allowed to the subscriber for
each billing period.
xxx xxx xxx
F
5. Programme code.—No person shall transmit or re-transmit
through a cable service any programme unless such programme
is in conformity with the prescribed programme code:
[***]”
42. He then referred to Rule 6 of the Cable Television Networks G
Rules, 1994, as follows:-
“6. Programme Code. –
(1) No programme should be carried in the cable service which:-
(a) Offends against good taste or decency: H
196 SUPREME COURT REPORTS [2018] 14 S.C.R.

A (b) Contains criticism of friendly countries;
(c) Contains attack on religions or communities or visuals or
words contemptuous of religious groups or which promote
communal attitudes;
(d) Contains anything obscene, defamatory, deliberate, false
B and suggestive innuendos and half truths;
(e) Is likely to encourage or incite violence or contains anything
against maintenance of law and order or which promote-anti-
national attitudes;

C (f) Contains anything amounting to contempt of court;
(g) Contains aspersions against the integrity of the President
and Judiciary;
(h) Contains anything affecting the integrity of the Nation;
(i) Criticises, maligns or slanders any individual in person or
D
certain groups, segments of social, public and moral life of
the country ;
(j) Encourages superstition or blind belief;
(k) Denigrates women through the depiction in any manner
E of the figure of a women, her form or body or any part thereof
in such a way as to have the effect of being indecent, or
derogatory to women, or is likely to deprave, corrupt or injure
the public morality or morals;
(l) Denigrates children;
F (m) Contains visuals or words which reflect a slandering,
ironical and snobbish attitude in the portrayal of certain ethnic,
linguistic and regional groups;
(n) Contravenes the provisions of the Cinematograph Act,
1952.
G
(o) is not suitable for unrestricted public exhibition
Provided that no film or film song or film promo or film trailer or
music video or music albums or their promos, whether produced
in India or abroad, shall be carried through cable service unless it
has been certified by the Central Board of Film Cetification
H (CBFC)) as suitable for unrestricted public exhibition in India.
STAR INDIA PVT. LTD. v. DEPARTMENT OF INDUSTRIAL 197
POLICY AND PROMOTION [R. F. NARIMAN, J.]

Explanation – For the purpose of this clause, the expression A
“unrestricted public exhibition” shall have the same meaning as
assigned to it in the Cinematograph Act, 1952 (37 of 1952);
(2) The cable operator should strive to carry programmes in his
cable service which project women in a positive, leadership role
of sobriety, moral and character building qualities. B
(3) No cable operator shall carry or include in his cable service
any programme in respect of which copyright subsists under the
Copyright Act, 1972 (14 of 1972) unless he has been granted a
licence by owners of copyright under the Act in respect of such
programme. C
(4) Care should be taken to ensure that programmes meant for
children do not contain any bad language or explicit scenes of
violence.
(5) Programmes unsuitable for children must not be carried in the
cable service at times when the largest numbers of children are D
viewing.
(6) No cable operator shall carry or include in his cable service
any television broadcast or channel, which has not been registered
by the Central Government for being viewed within the territory
of India E
PROVIDED that a cable operator may continue to carry or include
in his cable service any Television broadcast or channel, whose
application for registration to the Central Government was made
on or before 11th May, 2006 and is under consideration, for a
period upto 31st May, 2008 or till such registration has been granted F
or refused, whichever is earlier
PROVIDED further that channels uplinking from India, in
accordance permission for uplinking granted before 2nd December,
2005, shall be treated as registered television channels and can be
carried or included in the cable service.” G
43. The argument of Dr. Singhvi is that since this Act regulates
content downstream from the Cable TV operator to the consumer, its
absence in the TRAI Act is eloquent testimony to the fact that content
cannot be the subject matter of the TRAI Act. As has been held by us
hereinabove, the same answer must obtain, namely, that this Act is also H
198 SUPREME COURT REPORTS [2018] 14 S.C.R.

A irrelevant in the present case as the TRAI Act does not, as has been
held by us above, regulate the content of the TV channels that are
broadcasted by the broadcaster.
44. The main thrust of the arguments of both Dr. Singhvi and Mr.
Chidambaram were also by copious reference to the Copyright Act,
B 1957, which, according to them, showed that once the Copyright Act
steps in, TRAI must necessarily step out. They referred to certain
provisions of this Act stage-wise. The Copyright Act, 1957 as originally
enacted stated in its Objects and Reasons that: “it is necessary to enact
an independent self-contained law on the subject of copyright in
the light of growing public consciousness of the rights and
C obligations of authors and in the light of experience gained in the
working of the existing law during the last forty years. New and
advanced means of communications like broadcasting, litho-
photography, etc., also call for certain amendments in the existing
law”, as a result of which certain rights akin to copyright are conferred
D on broadcasting authorities in respect of programmes broadcast by them.
In this Act, as originally enacted, Section 2(v) defined “radio-diffusion”
as follows:
“2(v). “radio-diffusion” includes communication to the public by
any means of wireless diffusions whether in the form of sounds
E or visual images or both.”
45. Section 37, as originally enacted, recognised a broadcast
reproduction right by radio-diffusion only by the Government or any other
Authority of Government as follows:
“37. Broadcast Reproduction Right
F
(1) Where any programme is broadcast by radio-diffusion by
the Government or any other broadcasting authority, a special
right to be known as “broadcast reproduction right” shall subsist
in such programme.
(2) The Government or other broadcasting authority, as the case
G
may be, shall be the owner of the broadcast reproduction right
and such right shall subsist until twenty-five years from the
beginning of the calendar year next following the year in which
the programme is first broadcast.
(3) During the continuance of a broadcast reproduction right in
H relation to any programme, any person, who,-
STAR INDIA PVT. LTD. v. DEPARTMENT OF INDUSTRIAL 199
POLICY AND PROMOTION [R. F. NARIMAN, J.]

(a) without the licence of the owner of the right- A
(i) rebroadcasts the programme in question or any substantial
part thereof or
(ii) causes the programme in question or any substantial
part thereof to be heard in public; or
B
(b) without the licence of the owner of the right to utilise the
broadcast for the purpose of making a record recording the
programme in question or any substantial part thereof, makes
any such record, shall be deemed to infringe the broadcast
reproduction right.”
C
46. Section 38, as originally enacted prescribed as under :
“38. Other provisions of this Act to apply to broadcast
reproduction rights.
(1) Sections 18, 19, 30, 53, 55, 58, 64, 65 and 66 shall, with any
necessary adaptations and modifications, apply in relation to the D
broadcast reproduction right in any programme as they apply in
relation to the copyright in a work :
xxx xxx xxx”
47. Sections 18 and 19 of the Copyright Act deal with assignment
E
of copyright and royalty or other consideration payable to the owner for
such assignment. Section 30 of the Copyright Act refers to the right to
licence any interest in copyright by the author or his duly authorised
agent.
48. By the 1983 amendment to the Copyright Act, Section 2(v)
defining radio-diffusion was deleted and instead Section 2(dd) was inserted F
defining “broadcast” as follows:
“2(dd). “broadcast” means communication to the public –
(i) By means of wireless diffusion, whether in any one or
more of the forms or signs, sounds or visual images; or G
(ii) By wire,
and includes re-broadcast.”
49. Section 2(ff) was also inserted, defining “communication to
the public” as follows:
H
200 SUPREME COURT REPORTS [2018] 14 S.C.R.

A “2(ff) “communication to the public” means communication to
the public in whatever manner, including communication through
satellite.”
50. Consequently, Section 37 was also amended so as to replace
the expression “radio-diffusion” with the expression “broadcast”.
B 51. In 1994, consequent to treaty obligations imposed upon India,
broadcast reproduction rights were expanded to include private
broadcasting organisations. The Statement of Objects and Reasons for
the aforesaid amendment made it clear that:
“… The law relating to copyright and related rights has been under
C comprehensive review of the Government for some time, taking
into account the difficulties expressed by different groups of
copyright owners and others, the experience gained from the
administration of the existing law and the situation created by
various technological developments that have taken place.
D 2. The Copyright Act, 1957 amended and consolidated the law
relating to copyright in India. It was further amended by the
Copyright (Amendment) Acts of 1983 and 1984 and certain
improvements were effected. By the Copyright (Amendment)
Act, 1992 the term of copyright was further extended by a period
E of ten years. Now, it is considered appropriate to further amend
the provisions of the Copyright Act, 1957-
xxx xxx xxx
to further clarify the law in respect of cable, satellite and
other means of simultaneous communication of works to more
F than one household or private place of residence, including
the residential rooms of a hotel or hostel.
xxx xxx xxx
to further improve the functioning of the Copyright Board;
G to simplify and improve the law relating to copyright and
related rights, in the interests of the general public, and in
particular of the users as well as the owners of such rights.”
52. Section 2(ff) defining “communication to the public” was
substituted with a more comprehensive definition as follows:
H
STAR INDIA PVT. LTD. v. DEPARTMENT OF INDUSTRIAL 201
POLICY AND PROMOTION [R. F. NARIMAN, J.]

“2(ff) “communication to the public” means making any work A
available for being seen or heard or otherwise enjoyed by the
public directly or by any means of display or diffusion other than
by issuing copies of such work regardless of whether any member
of the public actually sees, hears or otherwise enjoys the work so
made available.
B
Explanation: For the purpose of this clause, communication
through satellite or cable or any other means of simultaneous
communication to more than one household or place of residence
including residential rooms or any hotel or hostel shall be deemed
to be communication to the public.”
C
53. Section 37 was entirely recast as follows :
“37. Broadcast reproduction right. - (1) Every broadcasting
organisation shall have a special right to be known as ‘‘broadcast
reproduction right’’ in respect of its broadcasts.
(2) The broadcast reproduction right shall subsist until twenty- D
five years from the beginning of the calendar year next following
the year in which the broadcast is made.
(3) During the continuance of a broadcast reproduction right in
relation to any broadcast, any person who without the licence of
the owner of the right does any of the following acts of the E
broadcast or any substantial part thereof, -
(a) re-broadcasts the broadcast; or
(b) causes the broadcast to be heard or seen by the public on
payment of any charges; or
F
(c) makes any sound recording or visual recording of the
broadcast; or
(d) makes any reproduction of such sound recording or visual
recording where such initial recording was done without
licence or, where it was licensed, for any purpose not G
envisaged by such licence; or
(e) sells or hires to the public, or offers for such sale or hire,
any such sound recording or visual recording referred to in
clause (c) or clause (d),
shall, subject to the provisions of section 39, be deemed to have H
infringed the broadcast reproduction right.”
202 SUPREME COURT REPORTS [2018] 14 S.C.R.

A 54. Section 38 was substituted with a new Section 39A as follows:
“39A. Other provisions applying to broadcast
reproduction right and performer’s right.
(1) Sections 18, 19, 30, 53, 55, 58, 64, 65 and 66 shall, with any
necessary adaptations and modifications, apply in relation to the
B broadcast reproduction right in any broadcast and the performers’
right in any performance as they apply in relation to copyright in a
work:
xxx xxx xxx”

C 55. Sections 33 and 33A, which have been relied upon by the
learned counsel for the appellants, read as follows:
“33. Registration of copyright society.— (1) No person or
association of persons shall, after coming into force of the
Copyright (Amendment) Act, 1994 commence or, carry on the
D business of issuing or granting licences in respect of any work in
which copyright subsists or in respect of any other rights conferred
by this Act except under or in accordance with the registration
granted under sub-section (3):
Provided that an owner of copyright shall, in his individual capacity,
continue to have the right to grant licences in respect of his own
E
works consistent with his obligations as a member of the registered
copyright society:
Provided further that the business of issuing or granting licence in
respect of literary, dramatic, musical and artistic works
incorporated in a cinematograph films or sound recordings shall
F
be carried out only through a copyright society duly registered
under this Act:
Provided also that a performing rights society functioning in
accordance with the provisions of Section 33 on the date
immediately before the coming into force of the Copyright
G (Amendment) Act, 1994 shall be deemed to be a copyright society
for the purposes of this Chapter and every such society shall get
itself registered within a period of one year from the date of
commencement of the Copyright (Amendment) Act, 1994.

H
STAR INDIA PVT. LTD. v. DEPARTMENT OF INDUSTRIAL 203
POLICY AND PROMOTION [R. F. NARIMAN, J.]

(2) Any association of persons which fulfils such conditions as A
may be prescribed may apply for permission to do the business
specified in sub-section (1) to the Registrar of Copyrights who
shall submit the application to the Central Government.
(3) The Central Government may, having regard to the interests
of the authors and other owners of rights under this Act, the interest B
and convenience of the public and in particular of the groups of
persons who are most likely to seek licences in respect of the
relevant rights and the ability and professional competence of the
applicants, register such association of persons as a copyright
society subject to such conditions as may be prescribed:
C
Provided that the Central Government shall not ordinarily register
more than one copyright society to do business in respect of the
same class of works.
(3-A) The registration granted to a copyright society under sub-
section (3) shall be for a period of five years and may be renewed D
from time to time before the end of every five years on a request
in the prescribed form and the Central Government may renew
the registration after considering the report of Registrar of
Copyrights on the working of the copyright society under Section
36:
E
Provided that the renewal of the registration of a copyright society
shall be subject to the continued collective control of the copyright
society being shared with the authors of works in their capacity
as owners of copyright or of the right to receive royalty:
Provided further that every copyright society already registered F
before the coming into force of the Copyright (Amendment) Act,
2012 shall get itself registered under this Chapter within a period
of one year from the date of commencement of the Copyright
(Amendment) Act, 2012.
(4) The Central Government may, if it is satisfied that a copyright
G
society is being managed in a manner detrimental to the interest
of the authors and other owners of right concerned, cancel the
registration of such society after such inquiry as may be prescribed.
(5) If the Central Government is of the opinion that in the interest
of the authors and other owners of right concerned or for non-
H
204 SUPREME COURT REPORTS [2018] 14 S.C.R.

A compliance of Section 33-A, sub-section (3) of Section 35 and
Section 36 or any change carried out in the instrument by which
the copyright society is established or incorporated and registered
by the Central Government without prior notice to it, it is necessary
so to do, it may, by order, suspend the registration of such society
pending inquiry for such period not exceeding one year as may be
B
specified in such order under sub-section (4) and that Government
shall appoint an administrator to discharge the functions of the
copyright society.
33A. Tariff scheme by copyright societies.— (1) Every
copyright society shall publish its tariff scheme in such manner as
C may be prescribed.
(2) Any person who is aggrieved by the tariff scheme may appeal
to the Appellate Board and the Board may, if satisfied after holding
such inquiry as it may consider necessary, make such orders as
may be required to remove any unreasonable element, anomaly
D or inconsistency therein:
Provided that the aggrieved person shall pay to the copyright
society any fee as may be prescribed that has fallen due before
making an appeal to the Appellate Board and shall continue to
pay such fee until the appeal is decided, and the Board shall not
E issue any order staying the collection of such fee pending disposal
of the appeal:
Provided further that the Appellate Board may after hearing
the parties fix an interim tariff and direct the aggrieved parties to
make the payment accordingly pending disposal of the appeal.”
F
56. Equally, Section 39, as substituted by the amending Act of
1994, reads as follows:
“39. Acts not infringing broadcast reproduction right or
performer’s right.— No broadcast reproduction right or
performer’s right shall be deemed to be infringed by—
G
(a) the making of any sound recording or visual recording for the
private use of the person making such recording, or solely for
purposes of bona fide teaching or research; or
(b) the use, consistent with fair dealing, of excerpts of a
H performance or of a broadcast in the reporting of current events
or for bona fide review, teaching or research; or
STAR INDIA PVT. LTD. v. DEPARTMENT OF INDUSTRIAL 205
POLICY AND PROMOTION [R. F. NARIMAN, J.]

(c) such other acts, with any necessary adaptations and A
modifications, which do not constitute infringement of copyright
under Section 52.”
57. The 2012 amendment to the Copyright Act was relied upon
and placed with great emphasis by learned counsel appearing on behalf
of the appellants. The Statement of Objects and Reasons of this B
amendment Act stated as follows :
“The Copyright Act, 1957 was enacted to amend and consolidate
the law relating to copyrights in India. To meet with the national
and international requirements and to keep the law updated, the
Act has been amended five times since then, once each in the C
years 1983, 1984, 1992, 1994 and 1999. The 1994 amendment
was a major one which harmonized the provisions of the Act with
the Rome Convention, 1961 by providing protection to the rights
of performers, producers of phonographs and broadcasting
organizations. It also introduced the concept of registration of
Copyright Societies for collective management of the rights in D
each category of copyrighted works. The last amendment in 1999
introduced a few minor changes to copy with the obligations under
the Trade Related Aspects of Intellectual Property Rights (TRIPS).
2. The Act is now proposed to be amended with the object of
making certain changes for clarity, to remove operational E
difficulties and also to address certain newer issues that have
emerged in the context of digital technologies and the Internet.
The two World Intellectual Property Organisation (WIPO) Internet
Treaties, namely, WIPO Copyright Treaty (WCT), 1996 and
WIPO Performances and Phonograms Treaty (WPPT), 1996 F
have set the international standards in these spheres. The WCT
and the WPPT were negotiated in 1996 to address the challenges
posed to the protection of Copyrights and Related Rights by digital
technology, particularly with regard to the dissemination of
protected material over digital networks such as the Internet. The
member countries of the WIPO agreed on the utility of having the G
Internet treaties in the changed global technical scenario and
adopted them by consensus. In order to extend protection of
copyright material in India over digital networks such as internet
and other computer networks in respect of literary, dramatic,
musical and artistic works, cinematograph films and sound H
206 SUPREME COURT REPORTS [2018] 14 S.C.R.

A recordings works of performers, it is proposed amend the Act to
harmonise with the provisions of the two WIPO Internet Treaties,
to the extent considered necessary and desirable. The WCT deals
with the protection for the authors of literary and artistic works
such as writings, computer programmes; original databases;
musical works; audiovisual works; works of fine art and
B
photographs. The WPPT protects certain “related rights” which
are the rights of the performers and producers of phonograms.
However, India has not yet signed the above-mentioned two
treaties. Moreover, the main object to make amendments to the
Act is that it is considered that in the knowledge society in which
C we live today, it is imperative to encourage creativity for promotion
of culture of enterprise and innovation so that creative people
realize their potential and it is necessary to keep pace with the
challenges for a fast growing knowledge and modern society.
xxx xxx xxx
D (xvii) make provision for formulation of a tariff scheme by
the copyright societies subject to scrutiny by the Copyright
Board.”
58. By this amendment, Section 2(ff) defining “communication to
the public” was replaced as follows:-
E
“2(ff) “communication to the public” means making any work or
performance available for being seen or heard or otherwise enjoyed
by the public directly or by any means of display or diffusion other
than by issuing physical copies of it, whether simultaneously or at
places and times chosen individually, regardless of whether any
F member of the public actually sees, hears or otherwise enjoys the
work or performance so made available.
Explanation: For the purposes of this clause, communication
through satellite or cable or any other means of simultaneous
communication to more than one household or place of residence
G including residential rooms or any hotel or hostel shall be deemed
to be communication to the public.”
59. Certain amendments were made to Section 37(3)(e). Section
39A was amended to extend the provisions of Sections 33 and 33A to
owners of the broadcast reproduction rights as follows:-
H
STAR INDIA PVT. LTD. v. DEPARTMENT OF INDUSTRIAL 207
POLICY AND PROMOTION [R. F. NARIMAN, J.]

“39A. Other provisions applying to broadcast reproduction A
right and performer’s right.
(1) Sections 18, 19, 30, 30A, 33, 33A, 34, 35, 36, 53, 55, 58, 63, 64,
65, 65A, 65B and 66 shall, with any necessary adaptations and
modifications, apply in relation to the broadcast reproduction right
in any broadcast and the performers’ right in any performance as B
they apply in relation to copyright in a work.
xxx xxx xxx”
60. A reading of the aforesaid provisions, according to the learned
Senior Advocates for the appellants, makes it clear that broadcasters
may, in fact, be the owners of the original copyright of a work – for C
example, if they themselves have produced a serial. They may also be
the copyright owners of the broadcast of this serial which is a separate
right under the Copyright Act which they are able to exploit, and if there
is a re-broadcast of what has already been copyrighted, this again is
protected by Chapter VIII of the Copyright Act. The argument, D
therefore, is that content that is carried by transmission from the
broadcasters to the ultimate consumer is, therefore, regulated only by
the Copyright Act and any royalties that can be charged for exploitation
of the three rights as aforesaid are governed only by the Copyright Act.
Further, the right to band themselves into a society is by virtue of Section
33, which mutatis mutandis applies to broadcasters alone. The tariff, E
therefore, that may be charged under Section 33A of the Copyright Act
read with Rule 56 of the Copyright Rules is nothing but compensation
that is payable to broadcasters for parting with their copyright in the
manner indicated above. This being the case, when TRAI fixes rates
and/or interferes with content, it is trespassing into the exclusive domain F
set out by Parliament under the Copyright Act. Since the TRAI Act
and the Copyright Act, both being Acts passed by Parliament, have to be
harmonised, such harmony can only be maintained if TRAI is kept out
altogether from the domain covered by the Copyright Act. Learned
counsel for the appellants also strongly relied upon the observations
contained in Entertainment Network (India) Ltd. v. Super Cassette G
Industries Ltd., (2008) 13 SCC 30, in which this Court explained as
under:
“125. Are the terms “royalty” and “compensation” not
synonymous? “Royalty” means the remuneration paid to an author
in respect of the exploitation of a work, usually referring to payment H
208 SUPREME COURT REPORTS [2018] 14 S.C.R.

A on a continuing basis (e.g. 10% of the sale price) rather than a
payment consisting of a lump sum in consideration of acquisition
of rights. It may also be applied to payment to performers.
[See World Copyright Law, (2nd Edn.) by J.A.L. Sterling.]
126. The word “compensation”, however, must have been used
B keeping in view the fact that if it is a statutory grant; it is a case of
statutory licence. We are not unmindful of the fact in cases of
other statutory licences, the word “royalty” has been used. Even
the word “usually” has been used. Mr Divan himself has referred
to Rule 11-A and Form II-A appended to the Rules of 1958.
Clauses (10) and (11) of the form which have validly been made
C used the word “royalty”.
“10. Rate of royalty, which the applicant considers reasonable,
to be paid to the copyright owner.
11. Means of the applicant for payment of the royalty.”
D 127. The legislature therefore for all intent and purport equates
“compensation” with “royalty”. In the context of the Act, royalty
is a genus and compensation is a species. Where a licence has to
be granted, it has to be for a period. A “compensation” may be
paid by way of annuity. A “compensation” may be held to be
E payable on a periodical basis, as apart from the compensation,
other terms and conditions can also be imposed. The compensation
must be directed to be paid with certain other terms and conditions
which may be imposed.”
61. Rule 56 of the Copyright Rules, 2013, also relied upon, is set out
F hereunder:
“56. Tariff Scheme.— (1) As soon as may be, but in no case
later than three months from the date on which a copyright society
has become entitled to commence its copyright business, it shall
frame a scheme of tariff to be called the “Tariff Scheme” under
section 33A of the Act setting out the nature and quantum of
G
royalties which it proposes to collect in respect of the right or the
set of rights in the specific categories of works administered by it.
(2) Every copyright society shall display its Tariff Scheme by
posting it on its website.
H (3) The Tariff Scheme shall indicate the separate rates for-
STAR INDIA PVT. LTD. v. DEPARTMENT OF INDUSTRIAL 209
POLICY AND PROMOTION [R. F. NARIMAN, J.]

(a) different categories of users; A
(b) different media of exploitation, such as telephone,
broadcast or internet;
(c) different types of exploitation whether by an individual or
by groups or whether single or multiple use or for advertising;
B
(d) different durations of use and territory; and
(e) any other differentiation factor indicated by the society,
as it may deem fit.
(4) While fixing the tariff the copyright society shall follow the
guidelines issued by any Court or the Board, if any, and may consult C
the user groups.
(5) The copyright society shall collect the royalties from a licensee
in advance where the Tariff Scheme provides for lump sum
payment of royalties. In cases where the Tariff Scheme provides
for payments in installments, each installment shall be collected in D
advance. However, in cases where the Tariff Scheme provides
for the payment of royalties based on actual use, the copyright
society may collect an advance at the time of issue of licence and
settle the final payment based on actual use at the end of the
period for which the licence is issued or granted.
E
Provided that the copyright society shall not receive any payment
in the nature of minimum guarantee from a licensee whose royalty
payments are based on actual use which are to be settled with the
society at the end of the licence period except where, any
exceptional circumstances are specifically included in the Tariff
F
Scheme and the individual case has been approved by the
Governing Council.
(6) The copyright society may revise the Tariff Scheme
periodically but not earlier than a period of twelve months by
following the rules. It shall publish the date of coming into of the
revised Tariff Scheme at least before two months in advance and G
the same shall be posted on its website.”
62. At this juncture, it is of a little importance to compare and
contrast Section 2(dd) of the Copyright Act with “broadcasting services”
as defined in the impugned Regulation and Tariff Order. By Clause 2(j)
of the impugned Regulation, “broadcasting services” is defined as follows: H
210 SUPREME COURT REPORTS [2018] 14 S.C.R.

A “2(j) “broadcasting services” means the dissemination of any form
of communication like signs, signals, writing, pictures, images and
sounds of all kinds by transmission of electro-magnetic waves
through space or through cables intended to be received by the
general public either directly or indirectly and all its grammatical
variations and cognate expressions shall be construed accordingly;”
B
63. When the definitions of “broadcast” in Section 2(dd) of the
Copyright Act and of “broadcasting services” in Clause 2(j) of the
impugned Regulation are compared, what is clear is 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
C the Copyright Act. Also, Section 52(1)(b) of the Copyright Act indicates
that transient or incidental storage of a work or performance purely in
the technical process of electronic transmission or communication to the
public is not an act that would constitute infringement of copyright. Section
52(1)(b) reads as follows:
D “52. Certain acts not to be infringement of copright.- (1)
The following acts shall no constitute an infringement of copyright,
namely:-
xxx xxx xxx

E (b) the transient or incidental storage of a work or performance
purely in the technical process of electronic transmission or
communication to the public;”
64. The picture that, therefore, emerges is that copyright is meant
to protect the proprietary interest of the owner, which in the present
F 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 focus, therefore, of TRAI is
that of a regulatory authority, which looks to the interest of both
G 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 as above, there can be no difficulty
in stating that the two Acts operate in different fields. We do not find on
a reading of the impugned Regulation as well as the Tariff Order made
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POLICY AND PROMOTION [R. F. NARIMAN, J.]

that TRAI has transgressed into copyright land. This is for the reason, A
as has been stated hereinabove, that regulations which allegedly impact
packaging TV channels, pricing of TV channels and the broadcaster’s
right to arrange his business as he pleases, all have to be viewed with
the lens of a regulatory authority, which is to provide a level playing field
between broadcaster and subscriber. We have also noted how the
B
broadcaster is free to provide whatever content he chooses for the TV
channels that he chooses to transmit to the ultimate consumer. We have
also noted how the broadcaster is free to arrange pricing of his TV
channels so long as they are non-discriminatory and do not otherwise
have the effect of unreasonably restricting the choice of a subscriber to
choose bouquet or a-la-carte channels as has been held hereinabove. C
We are satisfied that 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 after 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
D
matter, we are of the view that 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 mentioned hereinabove. 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 has been stated E
hereinabove, as a regulator, in the public interest, of broadcasting services
provided by broadcasters and availed of by the ultimate consumer.
65. As Dr. Singhvi has repeatedly stressed that fixation of rates
under Section 11(2) would directly impinge upon compensation payable
for copyright to the broadcasters, it is important to note that both the F
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. In fact, Section 38 of the TRAI Act reads
as under:- G

“38. Application of certain laws. – The provisions of this Act
shall be in addition to the provisions of the Indian Telegraph Act,
1885 (13 of 1885) and the Indian Wireless Telegraphy Act, 1933
(17 of 1933) and, in particular, nothing in this Act shall affect any
H
212 SUPREME COURT REPORTS [2018] 14 S.C.R.

A jurisdiction, powers and functions required to be exercised or
performed by the Telegraph Authority in relation to any area falling
within the jurisdiction of such Authority.”
66. Since the Telegraph Authority, acting under the Telegraph Act
and the Indian Wireless Telegraphy Act, is required to act in public interest,
B 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.
C
67. We are, therefore, clearly of the view that 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
D consumers, must prevail, to the extent of any inconsistency, over the
Copyright Act which is an Act which protects the property rights of
broadcasters. We are, therefore, of the view that, 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
E shall give way to the latter. As there is no merit in these appeals, the
same are, therefore, dismissed.

Devika Gujral Appeals dismissed.

F

G

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