In the case of Saregama India Limited Versus Next Radio Limited & Ors (Civil Appeal Nos 5985-5987 of 2021), a divisional bench of the Hon'ble Supreme Court of India comprising of hon'ble DR. JUSTICE D.Y. CHANDRACHUD and hon'ble MRS. JUSTICE B.V. NAGARATHNA delivered a judgment allowing the appeals made by Saregama India Limited by setting aside the interim order of the High Court dated 2 August 2021. On behalf of the appellants, Mr. Mukul Rohatgi and Mr. Akhil Sibal, learned Senior Counsel, have appeared, and on behalf of the respondents, Mr. Navroz Seervai and Mr. Neeraj Kishan Kaul learned
Senior Counsel had appeared. The respondents are the original petitioners before the High Court of Madras.
In this case, the validity of Rule 29(4) of the Copyright Rules 2013 was challenged by a writ petition on the ground that it (i) violates Article 19(1)(a) of the Constitution; and (ii) is ultra vires Section 31D of the Act before the Hon’ble Madras High Court under Article 226 of the Constitution. The primary issue, in this case, was that whether the interim order of the High Court must be sustained which has the effect 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.
The Hon’ble Supreme Court stating a clear demarcation of the functions of the legislature and judiciary emphasized that the judiciary cannot transgress into the domain of policymaking by re-writing a statute, however strong the temptations may be.
The Hon’ble Supreme Court said it is a settled principle of law that it is not permitted for the judiciary to read words into the statute when the words of the statute are clear and unambiguous. The power of judicial review is entrusted to the judiciary by the Constitution of India. Rewriting the language of the statute by supplanting terms should not be done through judicial interpretation in the exercise of the power of judicial review entrusted to the Court. It is the legislature that is entrusted with drafting the statutes. The Legislature is entrusted with the function of draftsmanship. Therefore, when the judiciary rewrites a statute by supplanting terms by judicial craft, it enters into the domain of the legislative draft which is forbidden.
The Divisional Bench of the High Court of Madras in its interim order dated 2 August 2021 has done this precisely. The High Court of Madras in the interlocutory stage while giving an interim order said, “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”. The High Court of Madras stating this in an interim order has converted an exception of the second proviso of Rule 29 into a routine procedure. Stating this, the Hon’ble High Court of Madras has modified the operation of Rule 29. The High Court has thus re-written the statute by judiciary redrafting which is forbidden. Section 31D(2) speaks of the necessity of giving prior notice, in the manner as may be prescribed, about 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. Giving a notice after the broadcast was an exception which the Division Bench of the High Court of Madras has converted into a routine procedure in its interim order dated 2 August 2021.
Rule 29 states that post-facto reporting must be done within 24 hours. The High Court of Madras has changed it to 15 days in its interim order. Changing 24hrs into 15 days is clear re-writing or drafting the statute which is forbidden to be done by the judiciary as the work of drafting is entrusted to the legislature.
The Hon’ble Supreme Court accordingly allowed the appeals by setting aside the interim order of the High Court dated 2 August 2021.