Many of you may have heard about Karnataka’s new ‘draconian’ Goonda Act which seeks to bring within its ambit ‘digital offenders’ and ‘audio or video pirates’. In this very comprehensive guest post, Nehaa Chaudhari takes a look at this act and points out some severe problems with it. Nehaa is a Nalsar Law graduate. She works on intellectual property/openness law and policy at the Centre for Internet and Society, New Delhi. [Note: Due to the examination of definitions in the Act, this post is considerably longer than our standard post. Though the whole post is recommended, readers in a hurry could skip directly to headings titled “Anomalies”, “Constitutional Validity” and “Closing comments” for the juicy bits.]
PREVENTIVE DETENTION FOR COPYRIGHT VIOLATION: KARNATAKA AMENDS THE ‘GOONDAS’ ACT
Last week, the Government of Karnataka amended the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum Gamblers Act, 1985 (“the Karnataka Goondas Act”). The Karnataka Goondas Act would now also apply to offences under the Indian Copyright Act, 1957 and the Information Technology Act, 2000. This article presents an overview on the various provisions of this law and discusses the potential impact of the amendment.
I – Goondas and Goondas Acts
Now used in ‘Indian English’ to mean a ‘hired thug or bully’, goonda/gunda seems to have Hindi/Urdu origins. Incidentally, thug itself has Hindi origins, with its meaning encompassing a range of criminals from robbers to murderers to gangs of criminals, or anti-social elements.
In 1923, the Goondas Act (India’s first) was enacted in Bengal. As per the Act, a goonda residing within, habitually frequenting or visiting Culcutta either by herself/himself or as part of a gang, committing/has committed/assisting in the commission of/is about to commit a non-bailable offence against person or property, or the offence of criminal intimidation or causing breach of peace was liable for action under this legislation. Similar laws were soon enacted across the country, including the Central Provinces and Berar Goondas Act, 1946 of Madhya Pradesh, (later struck down as unconstitutional in State of Madhya Pradesh v. Baldeo Prasad), the Uttar Pradesh Control of Goondas Act, 1970 (see: an illustrative decision); the Rajasthan Control of Goondas Act, 1975 (see: an illustrative decision); The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders and Slum-Grabbers and Video Pirates Act, 1982 (legislation prior to the 2004 amendment available here), and the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum-Grabbers Act, 1985, which was amended a few weeks ago.
While these legislations are broadly similar in their object – that of curtailing the criminal activities of ‘goondas’ with provisions for removal as well as preventive detention, there is a variation in scope of the legislation. Karnataka and Tamil Nadu having extended the application of their respective Goondas Acts to a larger number of activities, including video piracy – which is the focus of this post.
The Karnataka Goondas Act: What Remains and What has Changed
- Scope and Definition
Enacted in 1985 to curb activities of “anti-social” elements, which have frequently disturbed the “even tempo of life” especially in “urban areas”, the Karnataka Goondas Act extended to ‘bootleggers, drug offenders, gamblers, goondas, immoral traffic offenders and slum grabbers’. Amongst others, the 2014 amendment, which comes into effect “at once”, extends the scope of this legislation to “video or audio pirates” and “digital offenders”.
As per the new amendment, Section 2(iv) of the Act first refers to a “digital offender” as ‘when he is engaged, or is making preparations for engaging, in any of his activities as a digital offender, which affect adversely or are likely to affect adversely the maintenance of public order. An Explanation to Section 2 under Clause (f) specifies that a “digital offender” is any person who knowingly or deliberately violates for commercial purposes any copyright law in relation to any book, music, film, software, artistic or scientific work and also includes any person who illegally enters through the identity of another user and illegally uses any computer or digital network for pecuniary gain for himself or for any other person or commits any of the offences specified under section 67, 68, 69, 70, 71, 72, 73, 74 and 75 of the Information Technology Act, 2000.
These mentioned sections (67-75 of the IT Act), refer to a variety of measures which penalize refusal to decrypt information, publication of obscene information, access or attempts to access a ‘protected’ computer or network, misrepresentation, and breach of confidentiality and privacy, as well as prescription of penalties for some offences. (See more here)
The requirement that the action be committed for a “commercial purpose” has been eliminated in those instances where the offence is a violation of any of the listed sections of the Information Technology Act, 2000.
A “video or audio pirate” as defined under amended Section 2(xiii) is when he is engaged or is making preparations for engaging in any of his activities as a video or audio pirate habitually for commercial gain, which affect adversely, or are likely to affect adversely the maintenance of public order. The Explanation to Section 2 under amended Clause (o) states that a “video or audio pirate” means a person who commits or attempts to commit or abets the commission of offences of infringement of copyright habitually for commercial gain, in relation to a cinematograph film or a record embodying any part of the soundtrack associated with the film, punishable under the Copyright Act, 1957.
The Explanation to amended Section 2 lays down the conditions in which public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely, viz. that if any of the activities of any of the persons referred to in this clause directly or indirectly, is causing or is calculated to cause any harm, danger or alarm, or a feeling of insecurity, among the general public or any section thereof or grave or widespread danger to life or public health.
- Preventive Detention Orders
The amendment now means the State Government accordingly has the power to detain audio and video pirates and digital offenders, to prevent them from acting in a manner “prejudicial” to public order. In the first instance, such an order may not be for more than three months, it may be extended to a period of twelve months (Section 13), three months at a time, passed for the commission or the suspicion of commission of various offences, including copyright infringement, which under the Copyright Act, 1957 can only be determined by a court of law and is subject to subsequent appeals.
The 2014 amendment also modifies Section 17, by virtue of which no order of detention can be made under the National Security Act, 1980 against any of the persons named under the Karnataka Goondas Act, including audio or video pirates or digital offenders.
Section 8 requires grounds of detention to be disclosed to the detainees within five days of their detention, but not when it might not be in the public interest to do so.
This recent amendment to the Karnataka Goondas Act has resulted in anomalies. There are probably more; but two come to mind straight away.
First– preventive detention under the Karnataka Goondas Act means that the person arrested need not be produced before a magistrate immediately- there is a significantly long review process and detention may continue for a period of one year. This is for offences under the Information Technology Act, 2000, under which persons arrested have to be produced before a magistrate. This is also for offences under the Copyright Act, 1957, under which a person may be arrested only when found guilty of an offence by the court, whereas the Karnataka Goondas Act allows arrest on mere suspicion. Further, persons detained under this legislation cannot secure bail.
Second- the amendments to the Karnataka Goondas Act negate the exceptions laid out under the Copyright Act, 1957. While a reading of the Karnataka Goondas Act suggests that copyright infringement for commercial purposes falls under the purview of the legislation (and therefore non -commercial uses are excluded), however, under its provisions, persons may be detained (preventively) on mere suspicion as well. Therefore, even if a person were to be performing an activity permitted under the Copyright Act, 1957 (for instance, converting a coyrighted work into a machine readable format for the benefit of persons with disabilities), this person could be preventively detained on the suspicion of engaging in this activity for commercial purposes.
II – Constitutional Validity
- Legislative Competence
The legislative competence of the Karnataka Government in amending the Karnataka Goondas Act to apply to audio and video pirates as well as to digital offenders is moot. Prima facie, these amendments seem to be unconstitutional.
Article 246 read with List I (Union List) of the Seventh Schedule of the Constitution of India specifies those subjects on which the Centre has the authority to make laws. Offences related to and committed by “video or audio pirates” or “digital offenders” as explained under the Karnataka Goondas Act are subjects on which the Centre has the authority to make laws, by virtue of the provisions relating to posts and telegraphs; telephones, wireless, broadcasting and other like forms of communication (Entry 31 of List I) and patents, inventions and designs; copyright; trade-marks and merchandise marks and merchandise marks (Entry 49 of List I).
Article 246 read with List II (State List) of the Seventh Schedule of the Constitution of India specifies those subjects on which the States have the authority to make laws. Seemingly, the Government of Karnataka may have chosen to make laws relating to “video or audio pirates” and “digital offenders” Entry I of List II, i.e., public order. It is my submission, however, that these offences would not fall under an understanding of “public order” and this amendment would still remain unconstitutional.
- Freedom of Speech
Gautam Bhatia’s article in the Outlook (with a slightly modified version on his blog) make out the case against the recent amendments to the Karnataka Goondas Act violating Article 19(1)(a) of the Constitution of India. Bhatia argues that preventive detention under this legislation would be “prior restraint”, where government action prevents expression before it can take place, which is unconstitutional in most cases. He also argues that in order for free speech to be restricted on the grounds of “public order” under Article 19(2) of the Constitution of India, the State is required to meet a high threshold, which the Karnataka Goondas Act does not meet.
III – Closing Comments
The idea of introducing provisions to deal with online piracy and other ‘digital offences’ under the Goondas Act is not a new one. Mridula Chari writes that Tamil Nadu introduced such amendments to its Goondas Act in 2004 and Maharashtra in 2009, with Andhra Pradesh toying with the idea in 2010. She also writes that the Bengali and Punjabi music industries are making demands of their respective governments to introduce their own versions of the Goondas Acts and insert similar provisions. The Economic Times report on these recent amendments to the Karnataka Goondas Act also seems to suggest that these changes have been introduced for the protection of business interests. In contrast, in a detailed report, the Bangalore Mirror provides various illustrations of seemingly innocuous actions which may attract a draconian legislation, ranging from forwarding a song to a friend on WhatsApp to posting comments on social media sites.
The prospect of the protection of business interests with draconian legislations which are prima facie unconstitutional, aside from being ridiculous is deeply concerning. Widening the scope of these legislations to areas on which they have no constitutional authority to legislate, and introducing provisions with grave ramifications on fundamental rights, states in their continued and extended use of the Goondas Act are engaging in callous ill thought out actions with a deep disregard for their implications.