The ToI in a detailed report a few weeks ago reported that President Patil had given her assent to an amendment to the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act (hereinafter the “Slumlord Act”). As per the ToI report this amendment to the Slumlord Act makes it a criminal offence not only to sell pirated DVDs/CDs but also to buy such pirated DVDs/CDs!
As outrageous as it may seem to most of us the fact of the matter is that a similar provision already exists under the Copyright Act, 1957. As per Section 63B the knowing use of “an infringing copy of a computer program shall be punishable with imprisonment for a term which shall not be less than seven days but which may extend to three years and with a fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees.” The proviso to the section however states that in case the computer programme is not used for gain or in the course of trade or business then in that case the court may not impose any sentence of imprisonment.
The first question that needs to be examined is whether a pirated movie DVD will be covered under this provision? As per the definition of “computer” and “computer program” in Section 2 of the Copyright Act, 1957, I think it is possible to include a movie DVD within the definition of a computer programme. As defined by the Act a ‘computer programme’:
“means a set of instructions expressed in words, codes, schemes or in any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result”
I’m no techie but I think a DVD should be covered under this definition especially when read along with the definition of computer which includes any electronic or similar device having information processing capabilities. However this is one topic that is open to debate. The criminal procedure governing such a criminal offence is the normal Code of Criminal Procedure which will provide for the right to bail.
The second question that have to ask ourselves is why exactly has the Maharashtra Government gone over-board to include the offence of buying pirated DVDs in such a draconian legislation? As per this Indian Express article the Slumlords Act is one of those dangerous legislation that are preferred by the cops in the absence of TADA. Some of the ‘cop friendly’ (and not ‘civil liberties’) friendly features of this legislation are the provisions regarding to preventive detention for a period of 12 months without possibility of bail. For its part ‘Preventive detention‘ is one of those unfortunate relics from the days of the British Raj, which was unfortunately blessed even by the founders of our Constitution in their infinite wisdom. Under Preventive Detention Statutes there is usually no provision for bail and instead the Government is required to set up advisory boards to review the grounds of detention every three weeks. While High Courts do have the powers to intervene and set aside some of the orders which are violative of fundamental rights, the problems with such legislations is that the process itself is the punishment i.e. regardless of a final convinction the person is pretty much condemned once he is charged under the statute because of the cumbersome process that tilts in the favour of the state. More often than not these laws are abused by police forces around the country.
It is still possible to justify the existence of such legislations to curb certain crimes like drug peddling, terror activities and by a ridiculous stretch of imagination to even persons selling pirated DVDs. However it is absolutely ridiculous to equate a drug peddler to a person buying a pirated DVD. I have not been able to find a copy of the legislation online but if the ToI report is to be believed a person buying a pirated DVD can now be charged under this legislation and be held without bail. If (and this is the operative word) the ToI report is true then in that case the State of Maharashtra has lost all sense of proportionality with respect to its criminal justice system.
Does the State of Mahrashtra have the legislative competence to enact such a law?
As most of you may know India has a federal setup with the Central and State Government sharing powers. The scheme for sharing of powers is laid down in the Seventh Schedule to the Constitution of India. This Schedule has 3 lists: The Union List with respect to which only the Parliament can legislation, The State List with respect to which only the State Government can legislate and the Concurrent List with respect to which both the State and Central Government can legislate. However if in case there is already a Central Legislation in place then in that case the State Government can still legislate on the subject provided that it receives Presidential assent for the same. Now as per the ToI report President Patil has given her assent to this bill and hence I’m guessing that it was introduced under the Concurrent List.
The problem over here is that the law related to copyright and other intellectual property is a subject of the Union List which means that only Parliament is competent to pass such a legislation in regards pirated DVDs. The State may try to argue that the pith and substance of the legislation is actually in regards ‘law and order’ which falls under the State List but I think that will be quite a weak argument.
I am presuming that the President would have signed the Bill only on the advice of the Attorney General Milon Banerjee. However given the fact that the Attorney General has lost all of his credibility in the legal fraternity because of his actions devaluing the Constitutional Position of the Attorney General, (read about this here, here, here) I would not be surprised if the President has in fact got half-baked advice from the AG’s office while assenting to the Bill.
hi,
I agree with your point on legislative competence. The State can legislate on an allied and cognate area (application of pith and substance doctrine). In the instant case, Maharashtra has legislated on something which directly deals with copyright infringement. It cannot be said to be an allied area of ‘law and order’. Thus i believe, maharashtra exceeded on its legislative competence..
Thank you for that comment Anon. Am trying to dig out some more info on this Act, will hopefully have access to the amendments sometime in the future.
Prashant