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The constitutionality of preventing video piracy through preventive detention in Indian states
T Prashant Reddy and N Sai Vinod*
Setting the scene
On 9 June 2010, the Indian representative at the WTOTRIPS Council opposed the issue of the proposed Anti-Counterfeiting Trade Agreement (ACTA) on the ground that it posed a systemic threat to the fundamental rights of due process of individuals.1 This is an interesting though contradictory statement coming from a government which has just recently mooted preventive detention ie detention by the executive for up to a period of 6 months, without a trial or conviction, as the remedy for the piracy problem being faced by the Indian movie industry, which includes Bollywood, Tollywood, and Kollywood.2 The recommendation for preventive detention as a remedy to the piracy problem was initially proposed by the Ministry of Information and Broadcasting, Government of India at a meeting of representatives from all state governments to discuss new strategies in combating video piracy plaguing the Indian movie industry.3 The Minister and the subsequent Committee on Piracy, set up by the Minister, which supported preventive detention as the answer to stamp out video piracy, drew their inspiration for such a move from legislation enacted by the southern state of Tamil Nadu, which permitted the executive to detain suspected, not convicted, video pirates for a period of up to six months for a certain class of offences committed under the Copyright Act 1957.4 The Committee on Piracy, however, did not examine whether the state government had the power to enact such legislations. This was a glaring omission since, as is discussed below, the Constitution of India distributes legislative powers between the Parliament of India and the various legislatures of the states within the Indian Union and copyright law is a subject on which Parliament alone can legislate.
* The authors wish to thank Ananth Padmanabhan, Sumathi Chandrashekharan, and the readers of SpicyIP for their ideas and comments. Email: preddy85@gmail.com and nayanisaivinod@gmail.com. Indias Intervention to the WTO TRIPS Council: TRIPS Plus Enforcement Trends, (Knowledge Ecology International, 10 June 2010). By analogy with Hollywood, synonymous with the US movie industry the Indian movie industries in the Hindi, Telugu, and Tamil languages are popularly dubbed as Bollywood, Tollywood, and Kollywood. 3

The author
Prashant Reddy, a graduate of the National Law
School of India University, is an Advocate and contributor to the SpicyIP blog. Sai Vinod is a student at the West Bengal National University of Juridical Sciences, Kolkata.

This article
Traditionally, in India, copyright laws have always
been in the domain of the Parliament of India. In the recent past, however, various states within the Indian Union have started enacting preventive detention legislations to combat video pirates who infringe the copyright in lms. The primary issue that arises in this context is whether it is constitutionality possible for the legislatures of various states to enact legislation pertaining to copyright law. A secondary issue is whether video piracy can ever disrupt public order to an extent which permits preventive detention legislation.

We identify and outline the three different pieces of

legislation which permit the executive in three different states to take alleged video pirates into preventive detention. We then explain the history of preventive detention in India and examine with the help of case law, whether these laws are ultra vires the Constitution of India 1950.

During most treaty negotiations aimed at protecting

IP, the Indian negotiators have always bargained for more exibility in the context of copyright law. However, with IP playing a larger role in the economies of certain state governments, India nds itself in a paradoxical position where the government of India is opposing new treaties like ACTA due to concerns of fundamental rights and due process despite the fact that Indian states are using harsh measures like preventive detention statutes to combat copyright infringement. This may herald the beginning of a new era where the states push for stricter laws to protect IP.
Union Minister Mrs. Ambika Soni Expresses Grave Concern Over Film & Video Piracy, Calls For National-level Action Plan to Stem It, Press Information Bureau, Government of India (18 November 2009); Tough Law to Check Film, Video Piracy Planned The Hindu (19 November 2009). Ministry of Information & Broadcasting, Report of the Committee on Piracy (2010) para 1.9; Committee on piracy submits its report to Smt. Ambika Soni, Press Information Bureau, Government of India (31 August 2010). doi:10.1093/jiplp/jpr214

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The Author (2012). Published by Oxford University Press. All rights reserved.

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Preventive detention legislation has been enthusiastically supported by bodies like the International Intellectual Property Alliance (IIPA), which have wrongly characterized it as pre-trial detention.5 In reality, preventive detention is independent of any impending trial since there is no guarantee of a trial following preventive detention. Given the drastic nature of preventive detention, most liberal democracies have used this as a tool of state policy only in the context of terrorism or medical quarantine; it would thus appear that India is one of the rst countries to use it as a tool to combat offences pertaining to the misappropriation of IP.6 While one of the concerns at this stage is whether India can still claim to oppose treaties like the ACTA on moral grounds such as due process, the more important concern, which is the topic of discussion of this comment, is whether such legislation is constitutional in India. The rst constitutional challenge is based on whether the legislatures of the various Indian states have the competence to enact laws with respect to offences under the Copyright Act 1957, which in itself is a legislation enacted by the Parliament of India. Other countries with a federal scheme like the USA have faced a similar problem of state legislatures encroaching on Congresss power to enact legislations on patents or trade marks.7 The second possible constitutional challenge is whether the Indian Constitution even allows offences like video piracy to be included in preventive detention statutes. The focus of this comment is thus to examine the constitutionality of the preventive detention laws enacted by various states to combat video piracy.

Preventive detention: a glance at the past

When India adopted its present Constitution in 1950, it modelled itself as a liberal Westminster-style
5 International Intellectual Property Alliance, Special 301 Report on Copyright Protection and Enforcement, (2011) 41, http://www.iipa.com/ rbc/2011/2011SPEC301INDIA.pdf (accessed 18 August 2011) (The strongest remedy copyright owners have to date in India involves pretrial detention of up to one year under the Goondas Act which has had copyright offenses added as a predicate offense in Tamil Nadu.). 6 See generally, Adam Klein and Benjamin Wittes, Preventive Detention in American Theory and Practice (2011) 2 Harvard National Security Journal 85. 7 Sears, Roebuck & Co. v Stiffel Company (1964) 376 225 (US). 8 See generally AP Datar, Datar on Constitution of India (1st edn, LexisNexis Butterworths Wadhwa 2001). 9 Constitution of India 1950, Art 22. 10 Constitution of India 1950, Art 22(5). 11 The Preventive Detention Act 1950 was a temporary piece of legislation passed to counter social unrest and insurgencies. Parliament did not seek subsequent extension of the Act and it ceased to have effect from 31 December 1969. Preventive Detention: Old Fears, New Dangers, Human Rights Features (30 September 2008) http://www.hrdc.net/sahrdc/ hrfeatures/HRF188.htm, accessed 18 August 2011. Also see A. Faizur

parliamentary democracy. The Indian nation was to be ruled under a written constitution which guaranteed its citizens certain fundamental rights such as the right to life and liberty, under Article 21, with procedural safeguards aimed at ensuring the right to be represented by legal practitioners when arrested by the state.8 These rights were tempered by Article 22(3), which provided exceptions by recognizing the right of Parliament and state legislatures to enact preventive detention laws that permitted the state to hold a person in prison without a trial or conviction, or even a pending prosecution.9 Such order of detention is made not by an independent judiciary but by an ofcer authorized by the executive. The detainee, however, does have a right to seek judicial review of the Order on limited grounds.10 As the name suggests, preventive detention aims at preventing crime by detaining a person on the apprehension that he is likely to commit crime in the foreseeable future. Ever since India declared itself to be a Republic in 1950, Parliament has regularly enacted preventive detention statutes. Soon after the enactment of the Constitution, Parliament passed the Preventive Detention Act 1950 which lapsed in 1969.11 Subsequently, Parliament provided for preventive detention under the Maintenance of Internal Security Act 1971 (MISA) which lasted until 1978.12 Then in 1980, Parliament enacted the National Security Act 1980 (NSA) which continues in force. Apart from NSA, Parliament also enacted the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (COFEPOSA)13 and the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act 1980 (PBMSECA),14 all of which reected realities of economic hardship or separatist challenges to the authority of Parliament.
Rahaman, Preventive detention an anachronism The Hindu (7 September 2004) http://www.hindu.com/op/2004/09/07/stories/ 2004090700101500.htm, accessed 18 August 2011. 12 The political turmoil that prevailed during the 1970s and the heightened violence by Leftist militia offered a reason for the Government of India to reintroduce a preventive detention law which manifested as the Maintenance of Internal Security Act 1971 (MISA). The abuse of provisions of MISA to further political motives under the garb of internal disturbance during national emergency attracted heavy criticism and it was eventually repealed in April 1978, see Durga Das Basu, Commentary on the Constitution of India, vol. 3 (8th edn, LexinNexis Butterworths Wadhwa 2008) 3312. 13 COFEPOSA sought to plug violations of foreign exchange regulations and smuggling activities which had adverse effects on the national economy by authorizing preventive detention of persons suspected of smuggling or abetting or dealing with or connected with smuggling of goods. See Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974, s.3 14 Similar to other preventive detention legislation, PBMSECA also authorizes the Executive to pass detention orders against persons dealing with black-marketing and hoarding of essential commodities. See

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The 1980s marked a new trend in preventive detention statutes, when various state legislatures started enacting their own laws authorizing preventive detention to combat crimes, such as bootlegging, counterfeiting, drug trafcking, gambling, immoral trafcking, land grabbing, sand-offenders, and slum-grabbers.15 During this period, Andhra Pradesh, Gujarat, Maharashtra, Uttar Pradesh, Bihar, and Tamil Nadu enacted preventive detention laws to prevent anti-social activities and goonda-ism.16 The crimes targeted through these laws were notoriously difcult to prove through a trial in a court of law, especially by under-resourced state police agencies. Currently, almost every Indian state has enacted preventive detention statutes aimed at incarcerating alleged goondas. Indian policy-makers have drifted far from the original intent of the Constituent Assembly. A reading of the debates of the Constituent Assembly, tasked with drafting the Indian Constitution after independence in 1947, reveals signicant, if unsuccessful, opposition to the proposal of the drafting committee to continue with a system of preventive detention under the new Indian Constitution.17 One reason for this was the fact that many of the members of the Constituent Assembly were freedom-ghters who had often been incarcerated by the British under preventive detention laws for taking part in political demonstrations demanding independence. One such member, Shri Tyagi, stated his position eloquently:
Sir, Dr. Ambedkar will please pardon me when I express my fond wish that he and the other members of the Drafting Committee had had the experience of detention in jails before they became members of the Drafting Committee.18

Constitution.19 These provisions were being debated in the aftermath of partition from Pakistan, a war over Kashmir and the forced integration, into the Indian Union, of princely states like Hyderabad and Junagadh.20 Large-scale communal riots and aggressive regionalism were the order of the day: it is probably these challenges that prompted the drafters of the Constitution to permit preventive detention.21 Although the impetus for carving out such constitutional exception appears to be primarily one of socio-political considerations, the Constituent Assembly also conferred broader powers to the legislature to enact preventive detention laws extending to protection of economic interests.22 Even so, this cannot mitigate the historical signicance of these provisions as they indicate the true intent of the drafters. Thus the moot question is whether copyright infringement has reached such epic proportions as to justify the imposition of preventive detention on Indian citizens. In most other modern liberal democracies, the applicability of such preventive detention laws is usually limited to war-time or medical quarantines.23 No liberal democracy has, however, enacted such legislation against its very own citizens in times of peace so as to prevent the infringement of IP. India therefore is a dangerous trend-setter in this regard.

Preventive detention in Indian states

The year 2004 marked a new trend in some Indian states: a widening of scope of their preventive detention statutes to include possible copyright infringement of cinematograph lms and other works. The Statement of Objects and Reasons introducing these amendments in the state legislatures claimed that the drastic measure of preventive detention was necessary because movie producers faced mounting losses through piracy. Surprisingly, however, these state governments never released any evidence to substantiate this. In the case of at least Maharashtra and Tamil Nadu, it is speculated that the amendments were introduced because of the
18 ibid. 19 ibid. 20 See Ramachandra Guha, India after Gandhi: The history of the worlds largest democracy (2007). 21 Id. 22 Thus the text of Entry 3 of List III of the Seventh Schedule to the Constitution, Preventive detention for reasons connected with the security of a state, the maintenance of public order, or the maintenance of supplies and services essential to the community; persons subjected to such detention has provided constitutional basis for preventive detention laws to prevent economic offences such as bootlegging, counterfeiting, and land grabbing. 23 See generally, Basu (n 12); Cornelius P Cotter, Emergency Detention in Wartime: The British Experience (1954) 6 Stanford L Rev 238.

During these debates, Dr Ambedkar, the Chairperson of the Drafting Committee had justied the retention of such preventive detention laws for a worst case scenario where the executive would not be able to contain large-scale disturbances, after the enactment of the
Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act 1980. 15 Andhra Pradesh Prevention of Dangerous Activities of Boot-Leggers Dacoits, Drug-Offenders, Goondas, Immoral Trafc Offenders and Land Grabbers Act 1986; Gujarat Prevention of Anti-Social Activities Act 1985; Kerala Anti-Social Activities (Prevention) Act 2007 (Ker Act); Maharashtra Prevention of Dangerous Activities of Slumlords, Drug Offenders, Dangerous Persons Act 1981 (Mah Act); Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act 1986; Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Trafc Offenders, Sand Offenders and Slum Grabbers Act 1982 (TM Act); West Bengal Act 1923. 16 Goonda means a hired thug or bully. 17 Constituent Assembly Deb 15 September 1949, vol 9 and Constituent Assembly Deb 16 September 1949, vol 9.

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strong ties between the political class and the movie industries in those states. In Tamil Nadu, the two principal political parties, Dravida Munnetra Kazhagam (DMK) and the All India Anna Dravida Munnetra Kazhagam (AIADMK), which ruled alternately from 1967 till 2011, have always had strong political and nancial links to the Tamil movie industry.24 The two most prominent Chief Ministers from the DMK, Mr C. N. Annadurai and Mr M. Karunanidhi, were award-winning script-writers who initially wrote plays and then graduated to writing scripts for cinemas.25 The DMK is documented as being one of the rst political parties to use commercial Tamil lms in the 1950s as a means to spread the social and political agenda of the party at a time when the Indian National Congress still controlled Tamil Nadu.26 The lms scripted by Annadurai and Karunanidhi helped to ensure the popularity of the DMK in Tamil Nadu. Similarly, the two most prominent Chief Ministers from the AIADMK, Mr M.G. Ramachandran and Mrs. J. Jayalalitha, were both superstars in Tamil lms during their era.27 In a manner of speaking, the entire political class of Tamil Nadu has drawn its legitimacy from the movie industry and as a result both these institutions share a close nancial and political bond.28 In 2004, when the amendment to include video piracy in preventive detention statutes was enacted, the AIADMK government was in power.29 In the case of Maharashtra, the Hindi movie industrys home of Bollywood, it has been reported that local producers strongly lobbied the Chief Minister for a replication of Tamil Nadus legislation.30 According to another news report, the Chief Minister of the state government was convinced by his son, an upcoming actor in Bollywood, to move this industry specic amendment.31 Given these strong linkages between the political classes and the movie industries, it is no surprise that the state governments easily acceded to an undisputedly harsh remedy without carefully assessing the situation on the ground. The legal process behind preventive detention for alleged copyright infringement in each individual state is as described below.
24 See generally Robert L Hardgrave Jr, Politics and the Film in Tamil Nadu: The Stars and the DMK in Selvaraj Velayutham (ed), Tamil Culture: The Cultural Politics of Indias Other Film Industry (Routledge 2008). 25 ibid. 26 ibid. 27 ibid. 28 N Madhavan, DMK Inc.The biggest family business Business Today (26 December 2010). 29 Id. 30 Sanjeev Shivadekar, From Now, Long Jail Stints Await Your Favourite Video Pirate Times of India (19 July 2009).

Tamil Nadu
The rst relevant state law was Tamil Nadus 2004 amendment to the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Trafc Offenders, and Slum-Grabbers Act 1982 (Tamil Nadu Act). This amendment inserted the term video-pirates into the existing legislation, which had already dened six classes of person who could be held in preventive detention.32 Video Pirates were dened in the Act as any
person, who commits or attempts to commit or abets the commission of offences of infringement of copyright in relation to a cinematograph lm or a record embodying any part of sound track associated with the lm, punishable under the Copyright Act 1957.

Under section 3 of the Act, the state government can pass a detention order against any video pirate if it is of the opinion that such person may be acting in a manner prejudicial to the maintenance of public order. A detention order is then executed as a warrant issued by a court of law.33 The executive, however, must refer the grounds of detention to an Advisory Board within three weeks for its approval.34 The government may detain a person for an entire year under this Act.35

Maharashtra
The state of Maharashtra, inspired by Tamil Nadu, amended the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-offenders, and Dangerous Persons Act 1981 (Maharashtra Act) by ordinance in 2009.36 This ordinance was subsequently replaced by an Act of the state legislature amending the Maharashtra Act. Unlike the Tamil Nadu Act, the Maharashtra legislation allows the Act to be applied only to persons who have been charged at least once for offences under the Copyright Act 1957,37 so rsttime offenders will not be detained as video pirates. As explained below, this signicant safeguard has prevented the indiscriminate application of the statute
31 S Balakrishnan and Bharti Dubey, States will cut video pirates to size Times of India (13 September 2007). 32 Possession of Pirated Films to Attract Goondas Act in TN Times of India (9 January 2010). 33 TN Act s 4. 34 ibid, s 9 10. 35 ibid, s 13. 36 Meena Iyer and others, Piracy Law Late, But Welcome Proposal to Curb Film Piracy Times of India (27 MARCH 2009). 37 Mah Act s 2(f-1).

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against alleged infringers in Maharashtra. This Act denes video pirates as follows:
a person against whom at least one charge-sheet has already been led under the Copyright Act 1957 for infringement of copyrights related to cinematograph lm or sound recording and the Court has taken cognizance of such offence; and who commits or attempts to commit or abets the commission of offences of infringement of copyrights in relation to cinematograph lm or sound recording or any part of sound track associated with the lm or sound recording, punishable under the Act.

Act.40 This would mean that a person can be detained for six months under the Kerala Act only if he has been convicted of copyright infringement or hacking or illegal downloads within the previous seven years.41

Other states
Apart from the three states discussed above, news reports suggest that at least two other states, Andhra Pradesh42 and Karnataka43, are actively contemplating the enactment of such a law. Apparently, the state legislature of Karnataka had enacted law on the subject, but the Governor refused assent on the grounds that only Parliament and not the state legislature could enact such a law.44 As explained above, the Taskforce Committee on Film, Video, Cable, and Music Piracy constituted by the Ministry of Information and Broadcasting, Government of India, strongly recommended that all Indian states enact legislations on the lines of Maharashtra and Tamil Nadu.45 The Committee, comprised of only government bureaucrats and industry members but lacking practising lawyers and academics, did not consider whether the state legislatures had the power to enact such laws pertaining to copyright infringement.46

A video pirate is then proceeded against in the same manner as described under the Tamil Nadu legislation.

Kerala
In 2007, the state of Kerala enacted the Kerala AntiSocial Activities (Prevention) Act 2007, this being its rst legislative foray into the eld of preventive detention. This particular legislation includes in its extremely broad denition of anti-social activities and goondas, the activities of a digital data and copyright pirate which is dened to include
any person who knowingly and deliberately violates, for commercial purposes, any copyright law in relation to any book, music, lm, software, artistic or scientic work and includes any person who illegally enters through the identity of the user and illegally uses any computer or digital network for any illegal personal prot by deceiving any person or any computer system.

Frequency of use of preventive detention legislations

How frequently do the various state governments detain video pirates? Unfortunately, the three state governments which have such legislations in place do not release specic gures for video pirate detainees. The only other mode of assessing the number of detentions by the state is to check the number of habeas corpus petitions led by detainees, challenging their detention as video pirates as illegal on the ground that the detention order was made unlawfully. This is the only legal remedy for citizens seeking to challenge their preventive detention. A search of all the orders passed by the three relevant High Courts shows that the Bombay and Kerala High Courts did not pass a single order pertaining to the detention of video pirates. It is thus likely that there have been no detentions of suspected video
Government Step Up its Revenues The Hindu (31 July 2009); S Shyam Prasad, Goonda Act to Crust Pirates Bangalore Mirror (30 July 2009); Six Amendment Bills Passed: Stringent Law to Curb Terrorism in Karnataka (mangalorean.com, 29 July 2009). 44 Srikanth Hunasavadi, Guv Delays Goonda Act Change (3D Syndication, 9 September 2009). 45 Report of the Committee on Piracy (n 4). 46 Committee on Piracy Submits its Report to Smt. Ambika Soni Press Information Bureau, Government of India (31 August 2010), http ://pibmumbai.gov.in/scripts/detail.asp?releaseId=E2010PR1642 (accessed 18 August 2011).

This denition is much wider than that of Tamil Nadu and Maharashtra since it covers infringement of copyright in even books, music, and software; it also targets hacking and possible illegal downloads of copyright protected works. A digital data and copyright pirate is included within the denition of Goonda.38 A goonda may only be detained under the Kerala Act if he is a known goonda.39 The Kerala Act denes a known goonda as any goonda who has been convicted by a court of law for at least one offence, within the denition of goonda within the seven years prior to the making of any order of detention under the Kerala
38 39 40 41 42 Ker Act s 2(j). ibid, s 3. ibid, s 2(o). ibid, s 12. Andhra Pradesh Film Chamber of Commerce, Anti Video Piracy Cell, http:// www.aplmchamber.com/antivideopiracycell.aspx (accessed 18 August 2011). 43 The Karnataka Legislative Assembly on 29 July 2009 passed an amendment expanding the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Gamblers, Goondas, Immoral Trafc Offenders, and Slum-grabbers Act 1985, to include video and audio pirates. See KN Venkatasubba Rao, Implementing Goonda Act Will Help

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pirates under the law of those states. The possible reason for this is that video pirates is dened in both these legislations as persons who have been convicted or charged at least once under the Copyright Act 1957. Since convictions or charge-sheets under the Copyright Act 1957 for video piracy are so rare in India, it is scarcely possible for any person to qualify as video pirates in either state. The story in Tamil Nadu, however, is slightly different; there a more expansive denition of video pirate does not require prior conviction under the Copyright Act 1957 as pre-condition or safeguard. As a result, the Madras High Court has dealt with at least ve relevant habeas corpus petitions.47 There may be other detainees, lacking the means to challenge their detentions before the High Court. However, given the alleged problems of video piracy in Tamil Nadu, the ling of just ve petitions in the previous seven years suggests that detention of video pirates in Tamil Nadu is a rare occurrence. A eld visit by the researchers revealed that Burma Bazaar, one of the largest and most famous pirate movie markets in Chennai, Tamil Nadu, is fully operational just opposite to the Madras High Court. It appears therefore that preventive detention legislation has little deterrent effect on existing video pirates. The problem of piracy therefore does not seem to be linked to the lack of stringent laws.

The federal scheme of the Indian Constitution

A substantial portion of the Indian Constitution, with the exception of Part III (fundamental rights), was inspired by the Government of India Act 1935. This was enacted by the British Parliament in an effort to devolve more power to the Indian people who were demanding complete independence from British rule.48 The Government of India Act 1935 had created a basic federal structure between what were then referred to as the provincial legislatures and the federal legislature. The distribution of powers was laid out in Schedule VII to the Act of 1935. This Schedule contained three lists. List I contained all the subjects on which the federal legislature alone could enact laws. List II

contained all the subjects on which the provincial legislatures alone could enact laws. List III contained all the subjects on which both the federal and provincial legislatures could enact laws. Article 246 of the Constitution of India 1950 retained the overall distribution of power under Schedule VII. The lists were renamed as the Union List (List I), the State List (List II), and the Concurrent List (List III).49 Under both the Government of India Act 1935 and the Constitution of India 1950, List I included copyright, trade marks, and patents at Entry 49, thus reserving to the Parliament of India the power to enact laws pertaining to them. Entry 93 of List I also vests in Parliament the power to punish offences pertaining to all subjects in List I, which means that only the Parliament of India can enact laws to punish the violation of patents, trade marks, and copyrights. Preventive detention is, however, included in List III (Entry 3). This would mean that both the state governments and the central government could enact laws on preventive detention for reasons connected with the security of a state, or the maintenance of public order, or the maintenance of supplies and services essential to the community. Where both Parliament and the state legislature enact conicting laws under List III, the Parliamentary legislation takes precedence to the extent of such conict or inconsistency.50 State legislatures which have enacted preventive detention laws against copyright infringement have done so under Entry 3 of List III. The issue for debate, however, is whether the state legislatures could have enacted preventive detention legislations on subjects such as copyright law, which were on List I and therefore exclusively under the domain of Parliament. Further, Entry 93 of List I allows for only Parliament to enact laws to punish for offences relating to subjects mentioned in List I. Though the Lists dene and delimit legislative elds of the Parliament and the state legislatures, overlapping subject matter was inevitable.51 Therefore, whether any given legislature has the authority to enact legislation pertaining to one of the listed subjects is decided according to the test of pith and substance which, al-

47 The details of these cases before the Madras High Court are as follows: Udhya Rani v The Commissioner of Police, Habeas Corpus Petition No 834 of 2005; Saravanan v The Secretary To Government, Habeas Corpus Petition No 444 of 2007; Mr Mohideen v The Commissioner of Police, Habeas Corpus Petition No 557 of 2005; S. Amitha Beevi v The State of Tamil Nadu, Habeas Corpus Petition No 225 of 2010; J. Ameergani, W/O. Jaheer Hussai v State of Tamil Nadu and Anr., Habeas Corpus Petition No 30 of 2005.

48 49 50 51

Government of India Act 1935. See generally Datar (n 8). Constitution of India 1950, Art 254. In Re, Central Provinces and Berar, Sales of Motor Spirit and Lubricants Taxation Act 1938 (1939) AIR 1 (FC), Gwyer CJ stated that it would be a supreme draftsman who could so draw lists that no charge of overlapping could be brought against.

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though borrowed from foreign judgments, has been rened by the Supreme Court of India, for the Indian context, over the past several years.52

The pith and substance test

This test, in the context of Indian constitutional law, is used to discern the true nature and objectives of a particular law, in order to determine whether the legislature which enacted it was competent to do so under Article 246 of the Constitution;53 it is the most frequently applied test when Indian legislation is challenged on the ground that it encroaches on the powers of another legislature. The pith and substance test was originally evolved by the Privy Council in the context of the British North America Act, which created a federal Constitution of Canada.54 As with the later Government of India Act 1935, the new Canadian Federal Constitution distributed legislative powers between the provincial and federal legislatures. The Privy Council was required to apply the pith and substance test to determine the question of overlapping legislative competence; over time, the Privy Council began to apply this test in the context of the Government of India Act 1935. Once India became an independent republic, the newly created Supreme Court of India continued to apply the pith and substance test to the 1950 Constitution. One of the rst judgments to apply this test was State of Bombay v F. N. Balsara.55 The legislation under challenge in Balsara was the Bombay Prohibition Act 1949 which sought to restrict, among other activities, the possession and sale of foreign liquors in what was then the state of Bombay. The legislation was challenged on the grounds that the state legislature lacked competence to restrict the possession or sale of foreign liquor. The impugned legislation was enacted under Entry 31 of List II which allowed the state of Bombay to enact laws pertaining to intoxicating liquors, that is to say, the production, manufacture, possession, transport, purchase and sale of intoxicating liquors. The petitioners had contended that the legislation, which sought to control even import of liquor, encroached upon Parliaments power
52 Subramanyan Chettiar v Muttuswami Goundan (1941) AIR 47 (PC); Prafulla Kumar Mukherjee v Bank of Commerce Ltd., Khulna (1947) AIR 60 (PC). 53 HM Seervai, Constitutional Law of India (vol 3, 4th edn, Universal Law Publishing Co Pvt Ltd 2008) (1967) 2304 580; MP Jain , Indian Constitutional Law (J Ruma Pal and Samaraditya Pal (eds), 6th edn, LexisNexis Butterworths Wadhwa 2010) 1962. 54 Russell v The Queen (1882) 7 App Cas 829 (PC) 839 40 (appeal taken from New Brunswick Sup Ct).

under Entry 19 of List I which extended to import and export across customs frontiers. The Supreme Court applied the pith and substance test, concluding that the legislation fell within Entry 31 of List II since its main object was to regulate the liquor business: the fact that the legislation incidentally encroached on Parliaments powers to legislate on import of liquor under Entry 19 of List I was not enough to invalidate it. A general rule of the pith and substance test, as evolved by the Supreme Court, was that the entries in the Lists should not be read in a narrow pedantic manner. Instead, the words and expression must be given widest possible interpretation.56 The words used in the entry necessarily include incidental and ancillary matters so as to make the legislation effective.57 A constitutional bench of the Supreme Court has prescribed a three-step test for its application: (i) seek to effect reconciliation between entries in the Lists, to resolve conict and avoid overlapping; (ii) identify the correct entry within each List by ascertaining the pith and substance of the legislation; (iii) ascertain whether the incidental trenching upon another eld of legislation can be ignored.58 A court may ascertain the pith and substance of the impugned legislation by examining the preamble, statement of objects and reasons, the legal signicance and the intendment of the provisions of these Acts, their scope and the nexus with the objects of the legislation.59

Critical analysis of J. Ameergani W/O Jaheer Hussai v State of Tamil Nadu

The Amendment in 2004, to the Tamil Nadu Act, which included alleged copyright infringement of sound-tracks and cinematograph lms, as one of the activities that can result in preventive detention was upheld by the Madras High Court in J. Ameergani W/o Jaheer Hussai v State of Tamil Nadu and Another.60 The petitioner had been arrested for infringing copyright in a cinematograph lm under the Copyright Act 1957 for the second time. After the rst arrest, the petitioner had been released on bail. At the time of the second arrest, the state passed an order detaining him
55 56 57 58 State of Bombay v F. N. Balsara (1951) AIR 318 (SC). Hoescht Pharmaceuticals Ltd. & Ors. v State of Bihar (1983) 4 SCC 45. Hindustan Lever v State of Maharashtra (2004) 4 SCC 438, para 34. State of West Bengal v Kesoram Industries Ltd. & Ors (2004) 10 SCC 201, para 133. 59 Kartar Singh v State of Punjab (1956) Crim LJ 945 (SC), para 67. 60 (2005) 2 CTC 790 (Mad).

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as a video pirate under the Amendment of 2004. The petitioner challenged both the detention order and the amendment inserting video pirates into the original Tamil Nadu Act of 1982 as unconstitutional. In pertinent part, the judgment records the petitioner as having argued that the pith and substance of the impugned provision of law (the inclusion of video pirates in the list of goondas) pertained to copyright infringement which was a subject of Entry 49 in List I of Schedule VII and thus outside the legislative competence of the state legislature. The state, however, argued that the pith and substance of the legislation pertained to preventive detention which was a subject of Entry 3, List III of Schedule VII and that, accordingly, it was entitled to enact any legislation on the subject; that the fact that the impugned provision referred to the Copyright Act 1957 was merely an incidental and permissible encroachment on the Central legislation. Upholding the vires of the legislation, the court held that the pith and substance of the legislation was indeed located in Entry 3 of List III since it dealt mainly with the subject of preventive detention. The fact that it encroached on Parliaments right to legislate on all subjects pertaining to copyright law was a mere incidental encroachment, in itself insufcient to strike down the law:
An order of preventive detention is not a punitive measure, but is only preventive, aimed at preventing a person from committing a crime which is likely to prejudicially affect security of a State or the maintenance of public order or the maintenance of supplies and services essential to community. It is of no consequence that while enacting such law, the offence in respect of which such preventive detention law is required to be made is an offence under a Central Act enacted as per Union List or Concurrent List or a State Act enacted either under the State List or under the Concurrent List. In pith and substance the impugned provision of law relates to preventive detention and incidentally, such provision is relatable to an offence under the Copyright Act relatable to Entry 49 of List I.61

term video pirate. This term video pirate is dened specically in context of offences committed under the Copyright Act 1957. When the foundational denition of the impugned legislation itself is based on the Copyright Act 1957, it could be convincingly argued that the pith and substance of the legislation relates to copyright law and not preventive detention. 2. The Madras High Court surprisingly omitted any analysis of Entry 93 of List I of Schedule VII, which states that only Parliament may legislate on any offences pertaining to List 1. The denition of video pirates in the impugned provision is a
person, who commits or attempts to commit or abets the commission of offences of infringement of copyright in relation to a cinematograph lm or a record embodying any part of sound track associated with the lm, punishable under the Copyright Act 1957.62

There are three reasons to disagree with this reasoning: 1. The Supreme Court has held that the pith and substance of a law is determined by understanding its main aims and objectives. In the context of the present legislation, the Madras High Court had held that the encroachment on Parliaments legislative power, with respect to copyrights, was only tangential. The Court, however, fails to discuss this proposition in the context of the statutory denition of the
61 ibid, para 11.

It is obvious from this denition that the state of Tamil Nadu has legislated with respect to an offence committed under the Copyright Act 1957, a legislation of Parliament. On a literal interpretation of Entry 93, it would appear that only the Parliament of India is competent to legislate with respect to any offences committed under the Copyright Act 1957. Does the pith and substance of the Tamil Nadu Act relate to offences committed under the Copyright Act or to a separate class of offences? Since it denes video pirate in the terms of the Copyright Act 1957, it can be argued that the pith and substance of the offence relates to offences under the Copyright Act 1957, for which only Parliament has the competence to legislate. A possible counter-argument, as the Madras High Court noted, is that preventive detention is preventive and not punitive: the Tamil Nadu Act does not punish the infringer for his offence but merely prevents future offences. This argument is weak: although the legislation is termed as pertaining to preventive detention it is in effect a punitive measure because video pirate is dened in terms of offences committed under the Copyright Act 1957, not in terms of possible future offences. There is no way to establish that, because a person has been arrested as a video pirate, he is going to repeat the offenceespecially when all his equipment to commit piracy can be seized by the state at the time of the offence. The state is thus simply trying to legislate, in an indirect manner, for what it cannot do directly. 3. The Madras High Court failed to analyse the intended effect of the legislation and the reason for
62 Tamil Nadu Act, s 2.

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its enactment. As noted by another judgment of the same court,63 Tamil Nadu Act was enacted for the following reasons:
The Video Piracy is a spiralling dragon threatening the Cine Field of this Century. Advancement in technology by recording Cine lms in CDs, Video Piracy has started very rapidly spreading its claws affecting the Society at large. With much lesser cost, if people are let scot free to produce pirated Videos of lms etc., and general public are allowed to witness pirated lms freely, then the lm industry namely lm producers, lm distributors which invest hundreds of lakhs of rupees in lms may got ruined because of their inability to collect what they have spent, if not prots. Such action also curtails the revenue of the Government. Further, the censored portions of obscene shots and obscene songs, words and vulgarity in lms may go unchecked to the public, and this too has to be curbed effectively. In this view, the piracy of cine lms, songs, etc., has to be eradicated with iron hand by law making authorities and brought the culprits to book.64 (sic)

This same reasoning applies equally to the equivalent Acts in Maharashtra and Kerala.

Can video pirates pose a threat to public order?

Can Parliament and state legislatures include just about any offence within the ambit of preventive detention statutes on the ground of public order or has the Constitution placed any safeguards to limit the recourse to such measures? Entry 3 of List III of Schedule VII to the Constitution outlines the three headings under which state legislature may pass preventive detention laws: the security of a state, the maintenance of public order, and the maintenance of supplies and services essential to the community. However, the inclusion of a specic offence under one of these heads can be challenged as unconstitutional and arbitrary on the ground that the offence has no rational nexus to any of them. For example, Indias conservation of foreign exchange legislation was unsuccessfully challenged on the grounds that it was not relatable to any of the heads of List III or Entry 9 of List I (which prescribes separate grounds for Parliament to pass preventive detention legislations); the Supreme Court ruled that foreign exchange was crucial to maintaining the security of the state because a shortage of foreign exchange would result in grave danger to its security.65 In the context of the Tamil Nadu Act, video piracy, within the terms of copyright infringement, an offence the inclusion of which in preventive detention statutes is justied on the ground that it may affect adversely, the maintenance of public order.66 The term maintenance of public order in Entry 3 List III has been dened broadly by the Supreme Court in several cases pertaining to preventive detention. Recounting its own precedents on the interpretation of the term public order the Supreme Court stated: It has been time and again held by this Court that the expression public order is of a wide connotation.67 These precedents note that public order is somewhat similar to the French concept of ordre public; as such, it refers to a state of public tranquillity. Activities such as riots, revolutions, and civil strife which disturb public tranquillity are those which can be included in preventive
she is engaged or is making preparations for engaging, in any of his/her activities as a video pirate, which affect adversely, or are likely to affect adversely, the maintenance of public order. 67 Zameer Ahmed Latifur Rehman Sheikh v State of Maharashtra & Ors (2010) 4 SCR 1042, para 28.

This analysis is almost identical to the ofcial Statement of Objects and Reasons that was appended to the Copyright (Amendment) Act 1994 when it was introduced in Parliament:
It is estimated that losses to the lm producers and other owners of copyright amount to several crores of rupees. The loss to Government in terms of tax evasion also amounts to crores of rupees. In addition because of the recent video boom in the country, there are reports that uncertied video lms are being exhibited on a large scale. A large number of video parlors have also sprung up all over the country and they exhibit such lms recorded on video tapes by charging admission fees from their clients. In view of these circumstances, it is proposed to amend the Copyright Act 1957, suitably to combat affectively the piracy that is prevalent in the country.

The entire intent and effect of the Tamil Nadu Act is therefore to tackle copyright infringement and piracy, as is that of the Copyright Act 1957. These three grounds lead one to conclude that the pith and substance of the Tamil Nadu Act lies within Entry 46 read along with Entry 93 of List I and not Entry 3 of List III. The logical corollary to this is that only Parliament, and not state legislatures, are competent to legislate for preventive detention laws.
63 M. Siva v The Commissioner of Police, Greater Chennai, Habeas Corpus Petition No 273 of 2005, High Court of Madras. 64 ibid, paras 15 16. 65 Attorney General of India v Amratlal Prajivandas (1994) 5 SCC 54. 66 Tamil Nadu Act, s 2, species that a video pirate can be detained only on the grounds of public order (vi) in the case of a video pirate, when he/

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detention statutes in pursuance of the larger objective of maintaining public order.68 As the Supreme Court observed:
Public order is synonymous with public safety and tranquillity, and it is the absence of any disorder involving a breach of local signicance in contradistinction to national upheavals, such as revolution, civil strife, war, affecting the security of the State.69

In order to clarify further the true scope of public order, reference may be made to an oft-cited precedent of the Supreme Court which distinguishes between those offences which amount to a disturbance of law and order, public order, and security of the state.70 The court explained how those terms represent three concentric circles with law and order being the largest, security of a state being the smallest, and maintenance of public order being in the middle.71 While every act affecting public order will affect law and order, the converse is unlikely to be true. Can video piracy ever meet these parameters? Under the Supreme Court criteria, it is difcult to foresee any situation where video piracy leads to a disturbance of public tranquillity such as riots, revolutions, or civil strifeespecially since video piracy in the terms of copyright infringement involves purely private rights. At most, video piracy can be judged as a simple law and order issue which does not lead to a disturbance of public order. Any violation of private property rights would lead to only the property owner being aggrieved and there is a slim possibility of public tranquillity being disturbed by violation of such private property rights. In the past, there have been press reports on how video piracy is linked to organized crime and is sometimes used to fund terrorism. However, no independent academic or government studies have established any such link. Until such a link can be established, it can only be presumed that, for the most part, these video pirates are opportunistic individuals exploiting a weak copyright enforcement regime. However, even assuming that independent studies do validate a link between piracy and organized crime, video piracy remains a
68 See generally, Ramesh Thappar v State of Madras (1950) SCR 594; Dr. Ram Manohar Lohia v State of Bihar (1966) 1 SCR 709; Madhu Limaye v Sub- Divisional Magistrate (1970) 3 SCC 746. 69 Superintendent, Central Prison v Ram Manohar Lohia (1960) 2 SCR 821. 70 Lohia (n 71). 71 ibid 746. 72 s.2(b) of the Act denes bootleggers as those persons violating particular liquor laws of the State of Tamil Nadu.

law and order problem since an infringement that violates private rights cannot be said to violate public order and tranquillity as understood by the Supreme Court. With specic reference to the Tamil Nadu Act of 1982, video piracy is quite different from the other offences which that Act addresses: bootlegging,72 slumgrabbers,73 drug offenders,74 goondas,75 and immoral trafc offenders76 involve either an element of violence, public health, or protection of public property. Therefore, applying the Supreme Courts criteria for determining threats to public order, it is unlikely that video piracy, in terms of copyright infringement, would ever pose a threat to the maintenance of public order and a constitutional challenge may result in video piracy being severed from all existing preventive detention statutes.

Conclusion
The existence of preventive detention in the Indian Constitution has been subject to intense criticism from several quarters, including the Supreme Court of India, which has categorically stated that prevention detention is repugnant to democratic ideas and an anathema to the rule of law, the use of which may therefore be justied only in exceptional circumstances.77 Although preventive detention laws were initially aimed at containing the law and order situation in the immediate aftermath of the violence of independence and partition from Pakistan, the central government gradually started enacting news laws aimed at containing economic crimes such as foreign exchange violations and black marketing. The bar was further lowered by subsequent state governments, which convinced their legislatures to enact laws for various sort of crimes such as land-grabbing, boot-legging, and other such crimes which are difcult to prove. The further lowering of the bar, however, to include copyright infringement is particularly disturbing since India has always been one of the most vocal proponents of a balanced regime to protect IP. This being so, it is unlikely that the inclusion of offences pertaining to
73 s.2(h) of the Act denes slum-grabbers as those persons illegally taking possession of land or building unauthorized structures on such land or intimidating persons for rent etc. 74 s.2(e) of the Act denes drug offenders as those persons violating certain drug regulatory laws. 75 s.2(f) of the Act denes goondas as those persons who habitually commit certain violent crimes under the Indian Penal Code. 76 s.2(g) of the Act denes immoral trafc offenders who commit offences under the Suppression of Immoral Trafc in Women and Girls Act 1956. 77 Rekha v State of Tamil Nadu (2011) 5 SCC 244.

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video piracy in preventive detention statutes will withstand judicial review. In the Indian context, the preventive detention statutes represent the rst attempt by the state legislatures to enact laws governing copyright, which has always

been the subject of legislation by only the Parliament of India. This reects the increasing importance of IP to the economy of individual Indian states but also raises important issues of the distribution of legislative powers between Parliament and the state legislatures.