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TMI Blog2021 (9) TMI 1315X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 - While the High Court has held the broadcasters down to the requirement of prior notice, it has modified the operation of Rule 29 by stipulating that the particulars which are to be furnished in the notice may be furnished within a period of fifteen days after the broadcast. The interim order converts the second proviso into a routine procedure instead of an exception (as the High Court has described its direction). This exercise by the High Court amounts to re-writing. Such an exercise of judicial redrafting of legislation or delegated legislation cannot be carried out. The High Court has done so at the interlocutory stage. An exercise of judicial re-drafting of Rule 29(4) was unwarranted, particularly at the interlocutory stage. The difficulties which have been expressed before the High Court by the broadcasters have warranted an early listing of the matter and this Court has been assured by the copyright owners that they would file their counter affidavits immediately so as to facilitate the expeditious disposal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of re-writing Rule 29(4) of the Rules framed in pursuance of the provisions of Section 31D and Section 78(2)(cD) of the Copyright Act 1957 Act . 4 Mr Mukul Rohatgi and Mr Akhil Sibal, learned Senior Counsel, have appeared on behalf of the appellants. Mr Navroz Seervai and Mr Neeraj Kishan Kaul, learned Senior Counsel, have appeared on behalf of the contesting respondents, who are the original petitioners before the High Court. 5 Since the interim direction has been issued in the writ petitions moved before the High Court and the petitioners before the High Court are represented in these proceedings through counsel, on caveat, we are disposing of the appeals at this stage. 6 The batch of writ petitions before the High Court is listed for final disposal on 4 October 2021. A grievance has been made on behalf of the contesting respondents that the appellants have not filed counter affidavits in response to the petitions. The learned counsel appearing on behalf of the appellants assured the Court that they would do so expeditiously, well before the next date of listing so as to facilitate the final disposal of the writ petitions. 7 The facts, insofar as they are necessar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g organization which is desirous of communicating to the public by way of a broadcast or performance of a literary or musical work and sound recording which has already been published, may do so subject to compliance with the provisions of the Section. Sub-Section (2) incorporates five requirements, namely: (i) a prior notice; (ii) in the manner prescribed; (iii) of the intention to broadcast the work; (iv) stating the duration and territorial coverage of the broadcast; and (v) payment to the owner of rights in each work royalties in the manner and at the rate fixed by the Appellate Board. 10 Applications were filed by several broadcasters before the Intellectual Property Appellate Board IPAB seeking the determination of the rates for the purpose of a statutory license under Section 31D (together with the provisions of Rules 29 to 31 of the Rules), for the communication of sound recordings to the public by way of broadcast through FM radio. For several years, the Copyright Board was not duly constituted. In 2017, the Copyright Board merged with the IPAB as a result of a statutory amendment. By an order dated 31 December 2020, the IPAB determined the rates of royalty and paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rule 29, subject to adjustment of amount every calendar month. f. As far as regional songs and small broadcasters having one or two radio stations having total gross income of less than 10 crores, they are free to negotiate with the music companies under Section-30 of the Act as per earlier practise either to play in lumpsum or as per terms and conditions decided by them. g. The royalty rates shall be reviewed by the Board as per Rule 31(9) at the end of the said period either suo motto or on the application by any interested person. h. The rate determined under these proceedings will act as a base for future revision/change in the rates, where this entire process need not be replicated, except taking into considerations, change in the financial details, paying capacity of the Radio Broadcasters, the effect of pandemic and all other relevant factors etc. which have been given due consideration. i. All the Petitions are allowed in terms of the royalty determined hereinabove. j. Indian Performing Rights Society/Authors (lyricists music composers) are also entitled to claim their share of royalty from the assignee. k. No costs. (emphasis supplied) 11 The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particulars, namely- (a) Name of the channel; (b) Territorial coverage where communication to public by way of radio broadcast, television broadcast or performance under sub-rule (3) is to be made; (c) Details necessary to identify the work which is proposed to be communicated to the public by way of radio broadcast, television broadcast or performance under sub-rule (3); (d) Year of publication of such work, if any; (e) Name, address and nationality of the owner of the copyright in such works; (f) Names of authors and principal performers of such works; (g) Alterations, if any, which are proposed to be made for the communication to the public by way of radio broadcast, television broadcast or performance of the works, reasons thereof, and the evidence of consent of the owners of rights, if required, for making such alteration; (h) Mode of the proposed communication to public, i.e. radio, television or performance; (i) Name, if any, of the programme in which the works are to be included; (j) Details of time slots, duration and period of the programme in which the works are to be included; (k) Details of the payment of royalties at the rates fixed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... broadcasters who have been impleaded as parties, as a result of which the pan-India operation of the Rule is left in the realm of uncertainty. 16 These submissions have been contested on behalf of the broadcasters by Mr Navroz Seervai and Mr Neeraj Kishan Kaul, learned Senior Counsel. 17 Mr Navroz Seervai urged that: (i) Section 31D(2) stipulates that the broadcasting organization shall give prior notice, in such manner as may be prescribed, of its intention to broadcast the work, stating the duration and territorial coverage of the broadcast, together with the payment of royalty; (ii) Section 31 D, in referring to a notice in the manner as may be prescribed, does not envisage that conditions incorporating minute details should be provided in the prior notice; and (iii) The rule making power in Section 78 makes a distinction between form , manner and conditions . Since Section 31D refers to the manner in which the notice may be issued, the manner cannot extend to stipulating conditions . 18 Mr Neeraj Kishan Kaul has submitted that: (i) Section 31D was introduced by Parliament by an amendment of 2012 to obviate the exercise of monopolistic rights wielded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onferring power on the court by reading certain words into provisions is impermissible. A judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policy-making might wisely suggest, construction must eschew interpolation and evisceration. He must not read in by way of creation. The Judge s duty is to interpret and apply the law, not to change it to meet the Judge s idea of what justice requires. The court cannot add words to a statute or read words into it which are not there. It is a settled principle of law that when the words of a statute are clear and unambiguous, it is not permissible for the court to read words into the statute. A Constitution Bench of this Court in Padma Sundara Rao v State of Tamil Nadu (2002) 3 SCC 533 has observed: 12. The court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in the statute is determinative factor of legislative intent. The first and primary rule of construction is that the intention of the legislation must be found in the words used by the legislature itself. The question is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the interlocutory stage. The difficulties which have been expressed before the High Court by the broadcasters have warranted an early listing of the matter and this Court has been assured by the copyright owners that they would file their counter affidavits immediately so as to facilitate the expeditious disposal of the proceedings. That having been assured, we are of the view that an exercise of judicial re-writing of a statutory rule is unwarranted in the exercise of the jurisdiction under Article 226 of the Constitution, particularly in interlocutory proceedings. The High Court was also of the view that the second proviso may be resorted to as a matter of routine, instead of as an exception and that the ex post facto reporting should be enlarged to a period of fifteen days (instead of a period of twenty four hours). Such an exercise was impermissible since it would substitute a statutory rule made in exercise of the power of delegated legislation with a new regime and provision which the High Court considers more practicable. 23 We accordingly allow the appeals by setting aside the interim order of the High Court dated 2 August 2021. This is, however, subject to the clarifica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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