Supreme Court’s S. 63 Copyright Decision: Sub Silentio and Limited Value?

We’re pleased to bring you a guest post by our former blogger Aparajita Lath. Aparajita is a lawyer based in Bangalore. She works in a law firm that advises technology companies. The views expressed in this post are personal. Her previous posts on the blog can be viewed here and here.

Supreme Court’s S. 63 Copyright Decision: Sub Silentio and Limited Value?

Aparajita Lath

Meme with text: I got 99 problems and finding a reason is one
Don’t need a reason to meme, though!

As reported on SpicyIP here, the Supreme Court has held that copyright infringement under Section 63 of the Copyright Act, 1957 is a cognizable and non-bailable offense. In their post, Akshat and Sangita convincingly explain how problematic this decision is and how it will have far-reaching negative consequences.

As also highlighted in the post, this issue of classification of copyright infringement as cognizable / non-bailable has been litigated across at least seven High Courts over the past 20 years! Different High Courts have taken different views; some categorizing this offense as cognizable / non-bailable and others categorising it as non-cognizable / bailable. Clearly, this issue is not ‘clear’ or ‘unambiguous’ –  High Courts themselves are conflicted.

Being the highest court of the land, a lot is expected from decisions of the Supreme Court – least of all a reasoned judgement. Apart from the issues already raised, another issue with the decision is its lack of reasons and questionable precedential value.

While we all know that the Supreme Court held copyright infringement to be a cognizable and non-bailable offense – why and how did the Supreme Court reach this conclusion? Your guess is as good as mine because the court does not explain this. The judgement on the Supreme Court website is nine pages long. The first seven pages are facts, arguments and statutory provisions. The actual decision is just one paragraph on page seven/eight. Unfortunately, this paragraph contains no reasons and begs the real question:

5.3. Thus, for the offence under Section 63 of the Copyright Act,   the   punishment  provided  is  imprisonment for  a  term which  shall  not  be  less  than  six  months  but  which  may extend to three years and with fine.  Therefore, the maximum punishment which can be imposed would be three years. Therefore, the learned Magistrate may sentence the accused for a period of three years also. In that view of the matter considering Part II of the First Schedule of the Cr.P.C., if the offence is punishable with imprisonment for three years and onwards but not more than seven years the offence is a cognizable offence. Only in a case where the offence is punishable for imprisonment for less than three years or with fine only the offence can be said to be non­cognizable. In view of the above clear position of law, the decision in the case of Rakesh Kumar Paul (supra) relied upon by learned counsel appearing on behalf of respondent no.2 shall not be applicable to the facts of the case on hand. The language of the provision in Part II of First Schedule is very clear and there is no ambiguity whatsoever.

  1. Under the circumstances the High Court has committed a grave error in holding that the offence under Section 63 of the Copyright Act is a non­cognizable offence. Thereby the High Court  has  committed a  grave error  in quashing and setting aside the criminal proceedings and the FIR. [..]
  2. In view of the above discussion and for the reason stated above, it is observed and held that offence under Section 63 of the Copyright Act is a cognizable and non­bailable offence”

The Supreme Court has given us so little after so many years – in just one paragraph, it has decided one of the most complicated issues plaguing High Courts for decades. Going line by line – The first line is merely Section 63 (we all know this). The second and third line are probably the only lines where the court ‘holds’ something i.e. that the maximum sentence that can be imposed under S. 63 is 3 years. This was never really in doubt. The fourth line is from Part II of the Schedule 1 of the CrPC – ‘if the offense is punishable with imprisonment for three years and onwards but not more than seven years the offense is cognizable’. The fifth line is again from the CrPC ‘Only in a case where the offence is punishable for imprisonment for less than three years or with fine only the offence can be said to be non­cognizable.’ And that’s it.

The court does not answer the question. The court also does not justify how and why copyright infringement offenses can be grouped with offenses that attract imprisonment for ‘three years and upwards’. It is this grouping that has been the main point of controversy till now. At least some of the previous cases that took this view tried to provide reasons for such a classification e.g. contextual reading along with the scheme of Part I of Schedule 1 shows a trend that favours this view, literal interpretation with justifications, purposive reading along with legislative intent etc. But this decision says nothing at all.

Has this decision passed sub silentio? Salmond explains this concept as below (and it is a principle that has been used by our Supreme Court to devalue poorly reasoned cases):

“A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The Court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio.”

The court presumably decided that copyright infringement cases cannot be non-cognizable because imprisonment can go up to 3 years and may therefore not be ‘less than 3 years’. However, the court did not justify why copyright infringement offenses should be classified as cognizable / bailable. The court should not have decided in favour of this classification unless it also decided how these cases fit within the second bucket i.e. with imprisonment of ‘3 years and onwards but not less than 7 years’ (point B). Copyright infringement cases do not attract imprisonment for more than 3 years / ‘3 years and onwards’ and are punishable only up to 3 years, 3 years being the maximum. Though this point was directly involved in this case and had a bearing on the outcome, since the court did not consider it at all, it could be argued that this issue passed sub silentio and may therefore have limited precedential value.

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7 thoughts on “Supreme Court’s S. 63 Copyright Decision: Sub Silentio and Limited Value?”

  1. Madhukar Sinha

    A small aside on this issue relates to the vagaries of English language:
    1. The expression ‘up to’ does not include the limit mentioned after the expression. e.g., The temperature in Delhi can reach up to 50 deg celsius would mean the temperature can approach 50 deg celsius but will not reach 50.
    2. However, in s.63 the operative phrase is “… which may extend to three years and …” This may mean to include three years also. In this case, unfortunately, the period of three years would also put it in the category of the provisions of Cr. PC which declare such offences to be cognizable.
    In India we are generally liberal with use of the term of ‘up to’ and tend to use it interchangeably with ‘to’.
    Interestingly, the Hindi version of the Act as placed on the website of the Copyright Office clearly states:
    “छह मास से कम की किसी अवधि के कारावास का दंडादेश दे सकेगा या पचास हजार रुपए से कम का जुमार्ना अधिरोपित कर सकेगा”
    In Hindi, the language clearly finds the limits to be less than 3 years and less than ₹50,000/-.

    1. Hi Madhukar – thanks for your comment. The argument of the Hindi version being different from the English version is very compelling. After your comment, i checked the Hindi version on the Copyright Office website but it actually appears to have the same meaning as the English version (at least in my opinion) – ‘teen vashar tak kee ho sakegi’ – that means it can extend to 3 years.

  2. You have not explained in your rant how this decision will have far reaching negative consequences.

  3. M G Kodandaram

    The Apex court has rightly clarified what the law in question means as it is is duty to do so and not go beyond the legislated law. Court’s cannot make legislation but only interpret it. It need not also express the opinion as to whether the offence in question could be treated cognizable based on any other criteria than reading out the law as passed by the Parliament. The decision is a welcome and may help in controlling Piracy that is taking place in large volumes.

  4. Less than three years does not include three years. Three years and upwards includes three years; in other words it necessarily includes a case where the statute provides a maximum punishment of three years. Otherwise, what would be the position in the (hypothetical) case of a statute that provided for a punishment of exactly three years, neither more nor less? That would fall in neither category!

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