Business Laws

Interpret, but don’t re-write

| Updated on October 03, 2021

The job of judges is to interpret the law, not to re-write them, the Supreme Court has said, while overruling an interim order of the Madras High Court. The issue in question was Rule 29(4) of the Copyright Act, which basically makes it mandatory for a broadcaster to get prior permission to use a piece of music or any copyrighted material – in a dispute between Saregama India and Next Radio.

The Madras High Court, after checking the rule against Section 31D of the parent Act, had allowed the broadcaster to give a notice about the use of the copyrighted material after the use, within a stipulated time. The issue went to the Supreme Court. Justice Dr DY Chandrachud observed that “the High Court has substituted the provisions of Rule 29(4) with a regime of iits own, which is made applicable to the broadcasters and the petitioners before it.”

Noting that the court “cannot supplant the terms of the provisions through judicial interpretation by re-writing statutory language,” Justice Chandrachud stressed that “draftsmanship is a function entrusted to the legislature”.

He said, “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.”

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 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.

Published on October 03, 2021

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