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(f)As a corollary to realms in which TRAI Act and Copyright Act operate being watertight compartments, plea of the writ petitioners in this regard is that while TRAI Act has been enacted under Entry 31 of List I of Seventh Schedule of the Constitution of India (hereinafter referred to as 'COI' for brevity), Copyright Act has been enacted under Entry 49 of the same list of COI and therefore, BRR which is akin to Copyright Act is also recognised under the Copyright Act which is traceable to powers under Entry 49.

DISCUSSION :

7(a) With regard to the technical objection of TRAI and one of the intervenors (Videocon d2h) that this Court does not have territorial jurisdiction to entertain the instant writ petitions, we overrule the same for two simple reasons. One reason is that the impugned clauses are part of subordinate legislations made by a statutory body in exercise of its subordinate legislation making power under a Central Act, namely, TRAI Act. In the light of Article 226 of COI as it originally existed in the COI and the constitutional amendment it went through over a period in time, it does not need much discussion to say that territorial jurisdiction will not come in the way whenever constitutional validity and vires of Central enactments (in this case, it is subordinate legislations under a Central enactment) are assailed. The other reason for us to overrule this technical objection is that this objection is preliminary in nature. We are not at Rule Nisi stage. Pleadings are complete and these writ petitions have been taken up for final disposal. Most importantly, both these writ petitions have been taken up for final disposal pursuant to orders of the Hon'ble Supreme Court dated 08.05.2017 made in S.L.P(C) Nos.14336 of 2017 and 14464 of 2017. Therefore, even a plea to examine issues of territorial jurisdiction at this stage is undoubtedly untenable.

7(f) Challenge to a provision of law (in the instant case, the provisions of subordinate legislations under a Central statute) itself is pivoted on public law principle. If a litigant had missed that there is infarction of some of the provisions of Part III of the COI or any other provisions of COI in its first attempt of a challenge to the legislation, it may be too harsh (in the light of public law principle) to say that the same litigant cannot bring it to the notice of the Court that it does infarct certain provisions of COI and principles enshrined in COI, particularly when such a plea is predicated on the basis that it is owing to subsequent amendment to a Statute, i.e., Copyright Act in this case. This principle applies to lack of legislative competence too. In any event, in the instant case, the petitioners' plea, as alluded to supra is that the present grounds of challenge were not available to them earlier as it was prior to amendment to Copyright Act and we find the same tenable enough for dislodging the res judicata and constructive res judicata plea.

7(ah) In this regard, we also notice the submissions on behalf of writ petitioners that while carriage is traceable to Entry 31 of List I of Seventh Schedule of COI, content is traceable to Entry 49 of the same list of COI. It is also to be noted that this position is not disputed by TRAI. In fact, it is admitted in no uncertain terms by TRAI and it has been explicitly so stated by TRAI in it's counter affidavit, particularly in paragraph 54 of its counter affidavit which reads as follows :

54.I submit that broadcasting is a central subject as enumerated in Entry no.31 in the List I (Union List) of the VIIth Schedule of the Constitution of India which refers to Posts and Telegraphs, Telephones, Wireless, Broadcasting and other like forms of communication and thus only the Central Government is competent under Article 246 of the Constitution to legislate on matters relatable to the aforesaid entry. While copy right is also a List I subject, however, the same is relatable only to entry 49. Thus, both the subjects are distinct and different in the field they occupy..........  7(ai) In this regard, Dr.Singhvi relied upon a larger Constitution Bench (seven member Bench) judgment of Hon'ble Supreme Court in Synthetics and Chemicals Ltd. and others Vs. State of U.P. and others reported in (1990) 1 SCC 109. In this celebrated judgment, Hon'ble Supreme Court, after laying down that various entries in the three lists of the Seventh Schedule to COI are legislative heads / fields of legislation and not sources of powers held that owing to this principle, widest amplitude should be given to the language of the entries in the three aforesaid lists. Most importantly, it follows that it is the duty of the court to find out the true intent / purpose of a legislation and examining a particular legislation in this regard will arise when entries in these three lists run into each other, override or come into direct conflict with each other.