The Supreme Court this week frowned upon the judicial re-drafting of Rule 29(4) of the Copyright Rules, 2013 by the Madras High Court in an interim order passed in August (Saregama India v. Next Radio).
Rule 29 requires any broadcasting organization that wants to communicate to the public a published literary or musical work or sound recording to give a notice to the the Registrar of Copyrights and the owner of the copyright five days in advance of such broadcast.
The second proviso states that in unforeseen circumstances, the notice shall be given within twenty-four hours of such communication to the public.
The Bench of Justices DY Chandrachud and BV Nagarathna stayed the Madras High Court order which extended the time given under the second proviso to within fifteen days after the broadcast, subject to obtaining prior permission before the broadcast.
While staying the interim order of the High Court, the Bench held,
"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. That precisely is what the Division Bench of the High Court has done by its interim order."
It was further noted that while the High Court held 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 apex court noted.
The Court then clarified that 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 had passed the interim order in a challenge to Rule 29(4) on the ground that it violates Article 19(1)(a) of the Constitution and is ultra vires Section 31D of the Copyright Act, 1957. The August 2 order had held the following:
(i) No copyrighted work may be broadcast in terms of Rule 29 without issuing a prior notice;
(ii) 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;
(iii) 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.
While staying the order, the apex court desisted from expressing any opinion on the constitutional challenge which is pending consideration before the High Court, which is listed for final disposal on October 4, 2021.
Senior Advocates Mukul Rohatgi and Akhil Sibal appeared on behalf of the appellants (Saregama) with a team from Khaitan & Co - Ankur Sangal, Sucheta Roy and Imon Roy.
Senior Advocates Navroz Seervai and Neeraj Kishan Kaul represented the respondents.