Judicial review is a familiar phrase; however, the subject of scope and extent of judicial review jurisdiction remains highly complex despite sufficient discussion and judicial pronouncements on it. The Indian history has seen judiciary at loggerheads with the legislature on quite a few occasions.
There have been times when courts have overstepped the boundaries set by the constitution which provide for a fine balance between the three arms of government. But at the same time, the apex court has set good examples by overruling decisions which go contrary to the constitutional arrangement.
One such example is a recent decision of the Supreme Court in the case of Saregama India Limtied v/s Next Radio Limited & Ors Next Radio [Civil Appeal Nos 5985-5987 of 2021] whereby the court set aside an interim order passed by the division bench of the High Court of Madras, in a batch of writ petitions challenging the validity of Rule 29(4) of the Copyright Rules 2013.
The rule in question is framed under Section 31D of the Copyright Act (“Act”) which provides for statutory licensing of sound recordings for television and radio broadcast at government set royalty rates with the only prerequisite of a unilateral notice to the copyright owner before the work is broadcasted. It embodies a mandatory copyright licensing regime. Rule 29(4) (“Rule”) prescribes that the prior notice must capture the duration details about the broadcast, territorial coverage, time slot, quantum of royalty payable, mode of broadcast, name of the copyright owner/ author and the like.
Invalidation of the Rule has been sought on the ground that it is contrary to Article 19(1)(a) of the constitution and is beyond the powers granted under Section 31D of the Act i.e. the parent provision. The High Court held a prima facie view that the Rule seems to be “claustrophobic in its operation” and “leaves little room for flexibility”. The court went on to mention that “the very concept of speaking or performing ad lib, which is the essence of spontaneity in any live speech or live performance, would be lost if pre-planned details, down to the every second of the programme must be disclosed as the impugned Rule may be read to imply”.
While the writ is pending final disposal, the High Court, basis its prima facie opinion, issued following directions to the Petitioners vide an interim order:
a) No copyrighted work may be broadcast in terms of Rule 29 without issuing a prior notice;
b) Details pertaining to the broadcast, particularly the duration, time slots and the like, including the quantum of royalty payable may be furnished within fifteen days of the broadcast or performance;
c) Compliance be effected with a modified regime of post facto, as opposed to prior compliance mandated by Rule 29(4) and the statutory mandate of a twenty four hour prior notice shall be substituted by a provision for compliance within fifteen days after the broadcast; and
d) The interim order will be confined to the petitioners before the High Court and the copyrighted works of the second and third respondents which are sought to be exploited.
Notably, the High Court relaxed the requirement of providing all the details of the broadcast to the copyright owner vide prior notice and directed Petitioners to furnish these details within 15 days post the broadcast. The Petitioners moved to Supreme Court in an appeal on the ground that the High Court’s order has the effect of re-writing the Rule. After hearing both sides, the court found that the High Court transgressed into the legislative domain of the legislative by passing such an order at the interim stage of writ proceedings. In this context, below portion of the judgment is relevant:
“Delegated legislation can, if it results in a constitutional infraction or is contrary to the ambit of the enacting statute be invalidated. However, the court in the exercise of judicial review cannot supplant the terms of the provision through judicial interpretation by re-writing statutory language. Draftsmanship is a function entrusted to the legislature. Craftsmanship on the judicial side cannot transgress into the legislative domain by re-writing the words of a statute. For then, the judicial craft enters the forbidden domain of a legislative draft.”
While it remains to be seen whether Rule 29(4) is declared to be invalid, the Supreme Court has made it clear that the exercise of judicial review in a manner which goes contrary to the principle of parliamentary supremacy in law making must be discouraged.
Coming to the evaluation of validity of Rule 29(4), it has been argued by the broadcasters that Section 31D provides for the requirement to mention duration and territorial coverage of the intended broadcast in the notice, and it leaves it to the government to prescribe the ‘manner’ of such notice; however, the Rule 29(4) has gone beyond the statutory ambit because it stipulates a ‘condition’ to mention particulars additional to duration and territory. This argument holds water if we look at the literal meaning of the statutory language used in section 31D. The High Court’s reasoning also sounds convincing when it says that the Rule seems claustrophobic.
Having said that, a multi-lens analysis is needed and some more deliberation is warranted before invalidating the Rule or endorsing the need for amendment thereof. This is because the Rule seeks to protect the interests of the copyright owners to some extent while implementing a regime which is inherently antithetical to copyright since it takes away the copyright owner’s choice not to license its work. In other words, the requirement of prior notice capturing all the details of broadcast seeks to effectuate a balance between the competing interests of the copyright owner and the licensee.
Copyright owners should know how, where and in what form their work are going to be broadcasted. If the Rule is found to be outside the scope of Section 31D, then an amendment to section 31D may be considered so that it captures all the particulars which need to be mentioned in the notice for the purpose of compliance.
Manisha is the Founder Partner of LexOrbis. Known for her astute understanding of IP laws and litigation nuances, she provides practical and business-oriented solutions to a vast number of clients including many Fortune 500 companies, globally renowned universities, and public sector research organizations. She has been instrumental in developing global portfolios of patents, designs and trademarks for many Indian companies and research institutions. She passionately pursues endeavors to strengthen India’s IP protection and enforcement system to align it with international standards and work closely with the industry associations and the government.
Simrat is an Associate Partner at LexOrbis. She has a rich experience of IP advisory, prosecution, litigation and policy-related work for corporates, industry associations and individuals. She has catered to a wide range of domestic and foreign clients including in the entertainment, technology, education and automobile industry. Simrat holds a bachelor's degree in law from the Rajiv Gandhi National University of Law in Punjab, and a LLM from the National University of Singapore.