INTRODUCTION

Doordarshan has been India’s public service broadcaster since the time of independence. Yet, the production quality of their broadcasts is dated when compared to those of private broadcasters. So much so that Doordarshan’s current broadcasts could very easily be mistaken as one from a decade (or two) ago. In a world where national public service broadcasters are hustling to keep pace with their private counterparts, Doordarshan doesn’t seem to have woken up from their pre-liberalization slumber. It wasn’t always like this. In its heyday in the early 1980s, Doordarshan rode the success of its widely acclaimed broadcast of the Asian Games hosted by India. However, after the liberalization of the economy in 1991, the entry of private players in a sector which had hitherto been dominated by the State, reversed the fortunes of Doordarshan. The old order has since not been restored.

The seminal moment in the broadcasting industry in India was the Hero Cup in 1993, where the Cricket Association of Bengal (“CAB”) decided to sell the exclusive worldwide broadcast rights to Transworld International (“TWI”). Prasar Bharati, the parent body which runs Doordarshan, intervened in the sale. CAB challenged Prasar Bharati’s intervention in the Supreme Court (“Hero Cup judgment”). What ensued changed the course of sports broadcasting in India forever.

Post the Hero Cup judgment, the valuation of broadcast rights for cricket matches has ballooned to unprecedented proportions. This is evidenced from a single factoid: in 1993, Doordarshan offered INR 1 crore for national telecast rights to broadcast the Hero Cup across India and 25 years later, the Star Group paid the Board of Cricket Control in India (“BCCI”) a staggering INR 6,138 crores for the telecast rights of all the cricket matches held in India for a period of 5 years from 2018 to 2023 (approximately INR 60.1 crores).

HERO CUP JUDGMENT: AFTERMATH

In the broadcasting industry today, rights for any event or a series of events in a fixed timeline is put up for auction and sold to the highest bidder. This was not always the case. Doordarshan enjoyed an unimpeded monopoly over the telecast of sporting events until the Supreme Court gatecrashed their party with the Hero Cup judgment that changed the fortunes of both the broadcasters and Doordarshan – for the better and for the worse respectively. The judgment allowed the event organizer to sell the broadcast rights to private players and thereafter legitimized it as an industry practice. For more than a decade after the Hero Cup judgment, Doordarshan had to stand in line, just like everyone else and bid for the right to broadcast matches.

In 2004 when India toured Pakistan, Ten Sports procured the national broadcasting rights for the Indo-Pak series. Doordarshan wanted to broadcast the match in India but they could not reach an agreement with Ten Sports to share/license the right to broadcast the series. The matter went to the Madras High Court in Citizen, Consumer and Civic Group v. Prasar Bharati.  The Hero Cup judgment had addressed and asserted the rights of both the broadcasters as entities capable of independently allocating the broadcasting rights and the citizens who had the undeniable right to receive cricket broadcasts. However, the judgment did not pit the two rights against each other. The Madras High Court was tasked with deciding whether the rights of private broadcasters would be given preference over the fundamental right of citizens to receive information via sports broadcasts.

The court noted that“…the airwaves being public property of 103 crore Indians, can those primary rights be curtailed by allowing the third respondent to claim exclusivity even though it holds only secondary rights to cater to the needs of only a specialised class of viewers through satellites and by pay channels?a balance has to be struck between the larger public interest by not harming the private and commercial interest of the third respondent keeping in view other contractual parties of the third respondent who are behind the scenes and who are in no way to blame and whose stakes are high. Neither can we deny the fundamental right to the television viewers in India nor can we forget the commercial rights of the third respondent and his assignees.”

The Madras High Court judgment was criticized for being non-committal and restating the same position as the Hero Cup judgment. However, the rationale held in the judgment and the tone used therein to convey the rationale suggested that the Court had taken all factors into consideration and decided the case in line with the Hero Cup judgment by creating a balance between fundamental rights of citizens and commercial right of the broadcasters. Although this case did not create path-breaking precedent, however it ensured that the broadcasters’ rights shall not be compromised for citizens’ rights and vice versa. Essentially, this case propagated a case-by-case approach on ruling on such disputes.

This case went on appeal to the Supreme Court. The Supreme Court directed Ten Sports to share their terrestrial feed with Doordarshan, on the condition that the re-transmitted feed would not be cleaned up i.e. the feed would continue to bear the logo of Ten Sports and include all the graphics, advertisements and other pre-, mid- and post-match analysis shows compiled by Ten Sports as part of their feed.

Another important moment in sports broadcasting in India came in 2007. Nimbus had controversially won the bid for broadcasting rights of all cricket matches in India. However, Nimbus’s Neo Sports, which was going to telecast the matches, was not readily available to households as most cable and D2H operators weren’t willing to pay the high subscription fees demanded by Nimbus. The first ODI between India and West Indies witnessed record low viewership in India due to the non-availability of the Neo Sports channel in most Indian households. The Central Government was alerted to the dangers of robbing the citizens’ of their right to view cricket broadcasts due to the profit making motives of private broadcasters. This gave birth to the much maligned Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act 2007 (“Sports Act”). The Sports Act made it mandatory for private broadcasters to share clean live feeds (without advertisements) at their own cost, with Doordarshan. The Sports Act prescribed that any sporting event of national importance would be broadcasted on the national broadcaster even if the broadcasting rights were procured by some other broadcaster.

JUDGMENT

The Sports Act ensured that Doordarshan would receive clean feeds from the broadcasters. However, in 2016 – this privilege was challenged before the Supreme Court by Star Sports. Prasar Bharati claimed that Star was obligated to share advertisement-free live feed of the matches broadcast on its channels. In its defence Star Sports claimed that the advertisements were incorporated by International Cricket Council (“ICC”) and therefore it was impossible to remove it before sharing the live feed with Prasar Bharati. The Court held that even if advertisements were incorporated by ICC, they were of a commercial nature and Star was mandated to share the unobstructed live feed without any commercial additions.

Ultimately, Prasar Bharati lost the battle on August 22, 2017 in Union of India v BCCI, Star Sports and Others, where the Supreme Court passed a path-breaking judgment on limiting the mandatory sharing of signals with Doordarshan. The Court instructed the private broadcasters to mandatorily share their broadcast signals with Doordarshan under the Sports Act, provided Prasar Bharati only retransmit it on their own D2H network and not on any other private cable or D2H network which has to compulsorily carry Doordarshan channels under the specific instructions of Section 8 under the Cable Television Network Act (“CTN Act”). This presented a problem for Prasar Bharati as Doordarshan was profiting heavily from free broadcasts and bonus advertisement revenue from their live feed on private networks.

The issue was first pointed out by Nimbus way back in 2007. A petition filed by Nimbus sought a direction to the effect that no person other than Prasar Bharati had the right to transmit, relay or offer for exhibition, the live broadcasting signals of sports events shared with Prasar Bharati. Later, after Star India Pvt. Ltd. had successfully bid for the next round of broadcast rights bundle, Star and ESPN filed separate petitions against Prasar Bharati on similar grounds before the Delhi High Court. Star India and other broadcasters argued that Section 3 of the Sports Act which mandates the sharing of clean live feeds with Prasar Bharati, constituted an act of expropriation and therefore, it should not increase the burden on the private owner, as it was doing then. They also argued that Prasar Bharati should re-transmit the shared feed only on its own network and not on other private networks, because doing so greatly dilutes the private owners’ profit margins, and unlike Prasar Bharati, both Star and ESPN are profit-motivated entities.

BCCI jumped aboard the broadcasters’ bandwagon and claimed that revenue needed for development of cricket is generated by auctioning the media rights for matches and if the revenues of broadcasters are undermined, then it would have an adverse trickle-down effect on Indian cricket. BCCI held that it was responsible for carrying out the administration of Indian cricket in a manner that would be in best interest of the sport. It contended that the act of auctioning broadcasting rights and thereby generating high revenues contributed solely to the betterment of the sport.

Prasar Bharati contended that only a small percentage of all television viewers subscribe to its DTH and terrestrial network. The advent of cheap D2H connections has rendered their telecast obsolete and therefore a high percentage of the television owning populous prefer private operators. This in turn, prevents the outreach of Prasar Bharati’s own network. Prasar Bharati claimed that for the dissemination of information to the widest possible television viewing audience, it is in public interest that Prasar Bharati re-transmit the shared feed on private networks as well. They based their claim on the precedent set in the Hero Cup judgment wherein the Court held that airwaves are public property and therefore according to the public trust doctrine, the government should ensure that these are not utilised in a manner that only benefits private profit-motivated entities.

Prasar Bharati also argued that under article 19(1)(a) of the Constitution, it is the fundamental right of citizens of India to receive information. Any limitations placed on this inalienable right would be unconstitutional. Under this pretext, they prayed that the Sports Act be interpreted in such a manner that benefits the many instead of the few.

The Delhi High Court first adjudicated on the issue regarding the mandatory carrying of Doordarshan channels on all cable and D2H networks. The Delhi High Court held that since Doordarshan has a wide coverage and private networks were new entrants in the broadcasting industry, it made more sense to broadcast any event of national importance on Doordarshan because it catered to the maximum number of viewers. However, when taking into account the Sports Act, the Delhi High Court held that mandatory sharing was brought in for the people who could only avail the no-cost broadcast offered by Prasar Bharati and had no means to avail private networks. Obviously that was not the case anymore for majority of the television watching pool. Taking this into account, the Delhi High Court observed that if Prasar Bharati re-transmitted it’s free live feed on the private networks also, then such re-transmission would be anti-competitive and against the spirit of the CTN Act.

Furthermore, the Delhi High Court agreed with BCCI’s contention of generating revenue for the development of the sport and held that if Prasar Bharati wanted they could have acquired the broadcast rights for themselves. In that case they would have been able to direct the cable operators to broadcast the matches on their network or license/sell their rights to other private operators. The Delhi High Court thereby held conclusively that broadcasting signals shared by private broadcasters with Prasar Bharati could only be retransmitted on the latter’s own terrestrial and DTH networks and not on the network of any private cable operator.

Aggrieved by this decision of the Delhi High Court, Prasar Bharati appealed to the Supreme Court. The Supreme Court, however, agreed with the broadcasters. It upheld the broadcasters’ contention that mandatory sharing of the signal was indeed an act of expropriation.

The Court held that “Section 3 of the Sports Act, 2007 is a significant provision to further the objective behind the enactment of the Sports Act, 2007. Though much argument has been advanced as to whether Section 3 of the Sports Act, 2007 is expropriatory in nature, we have no hesitation in holding the said provision of the Act to be of such a nature inasmuch as it curtails or abridges the rights of a content rights owner or holder and television or radio broadcasting service provider, as may be. Sharing of revenue between the content rights owner or holder and the Prasar Bharati envisaged by Section 3(2) of the Sports Act, 2007 would hardly redeem the situation to take the Sports Act, 2007 out of the category of expropriatory legislation.”

Section 3 of the Sports Act therefore, had to be interpreted very strictly. Borrowing from the rationale held by the Madras High Court, any interpretation which unfairly increases the burden on the private broadcaster, would not be accepted. The Court further held that the provisions of the Sports Act do not reconcile or specifically concur with the requirements provided in Section 8 of the CTN Act and hence the CTN Act cannot be allowed to control the application of Sports Act. The Court held that under Section 8 of the CTN Act, the Central Government had the power to notify or de-notify a particular channel which would have to be mandatorily re-transmitted by the private operators. There was a possibility that Doordarshan, which broadcasts sporting events for free through a re-transmitted live feed, could be de-notified by the government vide the application of Section 8 of the CTN Act. This would restrict the application of Section 3 of the Sports Act, which was specifically drafted with the intention to ensure wider televised access of sporting events and therefore discretionary power of the Central Government could not be allowed to govern the Sports Act.

The Supreme Court thus dismissed the appeal and reiterated the Delhi High Court’s ruling that the signals shared by broadcasters with Prasar Bharati were only intended to be re-transmitted on their own DTH and terrestrial network and not on that of a private operator.

CONCLUSION

This judgment was widely appreciated for its stance and its refusal to yield to Prasar Bharati’s argument that it was protecting the rights of the citizens. The judgment was both a moral and commercial victory for the broadcasters who have historically invested increasing amounts of capital on acquiring the broadcast rights and packaging the live feed into watchable content for its viewers. The mandatory sharing of signals with Doordarshan was diluting the profit margins of private broadcasters as viewers could access free Doordarshan channels and avoid subscribing for the broadcaster’s paid channels. This decision aimed its guns at the free-rider approach of Prasar Bharati. Their stance had been transparent and unflinching throughout: If we are getting high viewership numbers without actually paying for the rights, why bid at all? Prasar Bharati wanted to have its cake and eat it too. This ruling was a wake-up call for Prasar Bharati to give up its position of entitlement and let market economics take over.

The broadcasters’ victory was substantial, but it is noteworthy that the biggest winner that emerged from this ruling was the BCCI. Considering the fact that Doordarshan would not be able to enjoy advertisement revenue from private networks and by its own admission, it’s scantily spread terrestrial networks did not generate high revenues, the private broadcasters’ now have most of the advertisement revenue share between themselves. Increased profits will result in higher bids in the next round of auctions, as is clear from the latest sale of broadcast rights – a 60% value markup on the previous round. Higher bids would thereafter result in higher revenues for BCCI from the sale of rights, which it claims shall be entirely re-invested into the development of Indian cricket.

There was a time, not too long ago when BCCI paid Prasar Bharati to broadcast cricket matches. How the tables have turned. How the mighty have fallen.