2021 INSC 0579 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal Nos 5985 -5987 of 2021 (Arising out of SLP (Civil) Nos 14972- 14974 of 2021) Saregama India Limited .... Appellant(s) Versus Next Radio Limited & Ors ....Respondent(s) WITH Civil Appeal Nos 5988 -5990 of 2021 (Arising out of SLP (Civil) Nos 15108- 15110 of 2021) J U D G M E N T Dr. Dhananjaya Y. Chandrachud, J 1 Leave granted. 2 These appeals arise from an interim order dated 2 August 2021 of a Division Bench of the High Court of Judicature at Madras in a batch of petitions . The writ petitions have been instituted before the High Court under Article 226 of the Constitution to challeng e the validity of Rule 29(4) of the Copyright Rules 2013 1. Th e High Court has, by its interim order, directed that: 1“Rules” 9 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 c ommunication 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 o f the payment of royalties at the rates fixed by the Board; and ( l) Address of the place where the records and books of accounts are to be maintained for inspection by the owner of rights.” 13 Rule 29(4) has been challenged before the High Court on the gr ound that it (i) violat es Article 19(1) (a) of the Constitution ; and (ii) is ultra vires Section 31D of the Act. 14 The High Court, in the course of its interim order, observed: “3. Prima facie, there appears to be an element of unworkability about the Rule in that it may be seen to be almost claustrophobic in its operation and leaving very little room for flexibility. Indeed, 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.” The High Court was of the view that the duty which is cast on broadcasters in the notice to broadcast under Rule 29(1) is “apparently onerous” . Consequently, it directed that the petitioners before it may be permitted to resort to the second proviso to Rule 29(4) as a “ routine procedure”, instead of an exception, subject to the duration of the ex post facto reporting being enlarged to fifteen days. In other words, the High Court, while maintaining the requirement of a prior notice under 10 Section 31 D, has re-fashioned the rule by stipulating that details pertaining to the broadcast s, particularly the duration, time slots an d the like, including the quantum of royalty may be furnished within fifteen days of the broadcast or performance. 15 Mr Mukul Rohatgi and Mr Akhil Sibal, learned Senior Counsel appearing on behalf of the appellants, submitted that: (i) The interim order o f the High Court re-writ es Rule 29(4), which is impermissible , in any event at the interim stage; (ii) The validity of Rule 29(4) is yet to be adjudicated upon and a presumption would attach to the constitutionality of both - the Rules and the Statute; (ii i) There is no challenge to the validity of Section 31D in terms of which Rule 29 has been framed; (iv) The order of the IPAB dated 31 December 2020 specifically requires compliance with the provisions of Rule 29 while fixing the rates of royalty; and (v) The High Court has, in the course of its interim order, extended it only to the petitioners before it and to the broadcasters who have been impleaded as part ies, 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. 11 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 ma y be prescribed, does not envisage that conditions in corporating 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 by copyright owners to the detriment of the public at large; (ii) Section 31D creates a statutory right in favour of broadcasters to obtain licenses as a result of which the earlier regime of voluntary licens ing has been replaced by the reg ime of statutory licenses envisaged in Section 31D; (iii) Until December 2020, in the absence of a duly constituted IPAB, broadcasters were functioning under the ambit of voluntary licensing agreement s; 12 (iv) Rule 29(4) defeat s the object of Section 31D in sofar as it incorporates minute details in the prior notice which has been prescribed; (v) Many broadcasters operate in the context of interactive dynamic sites as a result of which the requirement s which ha ve been prescribed in Rule 29(4) are onerous and impossible to fulfill; (vi) The broadcasters are ready and willing to pay royalties which are prescribed by the IPAB according to the statute at the end of every month and even inspection of record s is furnish ed to copyright owners ; and (vii) Whereas Section 31D provides for only the duration and territorial coverage of the intended broadcast, the notice which has been prescribed by Rule 29(4) has gone far beyond the statutory ambit of Section 31D and is ultra vires for that reason . 19 While counsel appearing on behalf of the contesting parties have addressed submissions on merits , we would desist from expressing any opinion on the constitutional challenge which is pending consideration before the High Court of Judicature at Madras where, as noted earlier, the writ petitions are slated for final disposal on 4 October 2021. 20 At this stage, the issue is whether the interim order of the High Court can be sustained. Essentially, as the narration in the earlier p art of this judgment would indicate , the High Court has substituted the provisions of Rule 29(4) with a regime of its own, which is made applicable to the broadcasters and the petitioners before it. A Constitution Bench of this Court in In Re: Expeditious Trial of Cases Under Section 13 138 of NI Act 1881 4 has emphasized that the judiciary cannot transgress into the domain of policy making by re -writing a statute, however strong the temptations maybe. This Court observed: “20. Conferring 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 e visceration. He must not read in b y 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 w hen 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 5 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 not what may be supposed and has been intended but what has been said. ….. 14. While interpreting a provision the court only in terprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. ” 4 Suo Motu Writ Petition (Crl.) No. 2 of 2020, 16 April 2021, available at https://main.sci.gov.in/supremecourt/2020/9631/9631_2020_31_501_27616_Judgement_16- Apr- 2021.pdf 5 (2002) 3 SCC 533 14 21 The court is entrusted by the Constitution of the power of judicial review. In the discharge of its mandate, the court may evaluate the validity of a legislation or rules made under it. A statute may be invalidated if is ultra vires constitutional guarant ees or transgresses the legislative domain entrusted to the enacting legislature. 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 exerci se 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 legis lative 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. Section 31D(2) speaks of the necessity of giving prior notice, in the manner as may be prescribed, of the intention to broadcast the work stating the duration and the territorial coverage of the broadcast, together with the payment of royalties in the manner and at the rates fixed by the Appellate Board. 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 per iod 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 amount s to re -writing . Such an exer cise of judicial redrafting of legislation or delegated legislation cannot be carried out. The High Court has done so at the interlocutory stage. 15 22 We are, therefore, clearly of the view that an exercise of judicial re- drafting of Rule 29(4) was unwar ranted, 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 fil e 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 jurisdi ction 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 clarification that this Court has not expressed any opinion on the merits of the rival submissions which would fall for determination in the exercise of the writ jurisdiction of the High Court in the pending proceedings. . 16 24 Pending application (s), if any, stands disposed of. …………… ...…...….......………………........J. [Dr Dhananjaya Y Chandrachud] ……..…..…....…........……………….…........J. [B V Nagarathna] New Delhi; September 27, 2021 - S-