Indian Kanoon - Search engine for Indian Law

4(d) To further simplify, it is the case of the writ petitioners that TRAI can regulate 'carriage', but not 'content'. Interestingly, it is the case of TRAI that it is regulating only carriage as television channel is a product by itself.

4(e) As we are setting out the core issue, it would be necessary to set out here that there are three intervenors, who are, All India Digital Cable Federation, Indian Broadcasting Foundation and Videocon d2h Limited. Two intervenors, namely, All India Digital Cable Federation and Videocon d2h Limited are supporting TRAI, whereas the third intervenor, namely, Indian Broadcasting Foundation, is supporting the writ petitioners.

The Airports Economic Regulatory Authority of India Act, 2008 13.Functions of Authority.(1)-(3) * * * (4) The Authority shall ensure transparency while exercising its powers and discharging its functions, inter alia

(a) by holding due consultations with all stakeholders with the airport;

(b) by allowing all stakeholders to make their submissions to the authority; and

(c) by making all decisions of the authority fully documented and explained. x x x x x x x x x x

92.We find that, subject to certain well-defined exceptions, it would be a healthy functioning of our democracy if all subordinate legislation were to be transparent in the manner pointed out above. Since it is beyond the scope of this judgment to deal with subordinate legislation generally, and in particular with statutes which provide for rule making and regulation making without any added requirement of transparency, we would exhort Parliament to take up this issue and frame a legislation along the lines of the US Administrative Procedure Act (with certain well-defined exceptions) by which all subordinate legislation is subject to a transparent process by which due consultations with all stakeholders are held, and the rule or regulation-making power is exercised after due consideration of all stakeholders' submissions, together with an explanatory memorandum which broadly takes into account what they have said and the reasons for agreeing or disagreeing with them. Not only would such legislation reduce arbitrariness in subordinate legislation-making, but it would also conduce to openness in governance. It would also ensure the redressal, partial or otherwise, of grievances of the stakeholders concerned prior to the making of subordinate legislation. This would obviate, in many cases, the need for persons to approach courts to strike down subordinate legislation on the ground of such legislation being manifestly arbitrary or unreasonable. 7(ac) TRAI submitted that the Call drop case cannot be pressed into service by writ petitioners in the instant writ petitions, as according to TRAI, it is clearly distinguishable on facts. Learned senior counsel for TRAI would point out that Call drop case is one where, on facts, it was conceded that customers are responsible for Call drops inasmuch as 36.9% of the call drops were owing to customers and therefore it would not be appropriate to penalise the operators for call drops. While this reference to the factual matrix is correct, we are unable to agree that principles qua subordinate legislation making powers and subordinate legislation making itself eloquently elucidated and elegantly articulated by Hon'ble Supreme Court inter-alia by referring to various sources, such as corpus juris secundum cannot be looked into for the purpose of deciding this case. These are extremely salient and sanctus principles elucidated by the Hon'ble Supreme Court qua subordinate legislation making powers and exercise of the same by a regulatory authority. Therefore, we deem it appropriate to apply the principles to the instant case, more so as Supreme Court was dealing with this very regulation making power and functions of this very Regulating Authority, i.e., TRAI under this very statute, i.e, TRAI Act. We shall do so infra in this judgment.

7(aj) In the instant case, that TRAI Act is in the realm of Entry 31, that Copyright Act is in the realm of Entry 49 are very clear. They are distinct and demarcated. Therefore, content of broadcasters, i.e., writ petitioners and other similarly placed broadcasters has to necessarily be regulated and fixation of tariff for the same has to necessarily be under Copyright Act. In this regard, we also deem it appropriate to notice two specific submissions made by writ petitioners and TRAI. Writ petitioners categorically submitted that it is not their case that their content should not be regulated at all or should not be scrutinized at all. They say that it can be done under Copyright Act by the appropriate authority and in any event, their content qua public morality is now being scrutinized by the Ministry of Information and Broadcasting. Equally, TRAI has made it clear that it is it's stated position that they are not concerned with what the channel carry, i.e., 'content' and that they are concerned only with how they carry, i.e., 'carriage'. In this regard, we also deem it appropriate to refer to a judgment of a Division Bench of Delhi High Court being a judgment in ESPN Star Sports Vs. Global Broadcast News Ltd. & ors. reported in 2008 (38) PTC 477 (Del.) (DB). It was pressed into service by learned Senior counsel Mr.P.Chidambaram to say that even broadcasting of a cricket match for which rights were purchased at a huge cost by broadcasters was held to be a Copyright and that unauthorised broadcasting of such cricket match was held to be an infringement of BRR of broadcaster. To drive home this aspect of the matter, learned senior counsel Mr.P.Chidambaram took us through paragraphs 9,10,14 to 17, 19 and 20 of the said judgment. Considering the enormous significance of copyright / content and carriage in the instant case, we deem it appropriate to reproduce the said paragraphs which read as follows :

7(aq) In this case, TRAI in its counter affidavit has clearly admitted that it is not regulating content and that it is regulating only carriage. We are fully conscious of the legal position that concession made by a party is of no great significance in a matter where there is challenge to vires and validity of some provisions in subordinate legislations. With absolute clarity in this regard in our mind, we looked at the stated position of TRAI as articulated in no uncertain terms by TRAI in its counter affidavit. TRAI is very clear and unambiguous that it does not want to regulate content. In fact, it is the say of TRAI in the hearing that they are not concerned with content of the channels and that they are concerned only with carriage. Therefore, the intention and objective behind the regulation of TRAI which are subject matter of this writ petition is to regulate carriage only. In other words, it follows as a necessary corollary that the intention is not to regulate content.