Tag: law

The doctrine of judicial review is thus firmly rooted in India, and has the explicit sanction of the constitution.

Actually the idea of judicial review implies the amendment of the declaration or sentence of a lower court by a higher court. Judicial review has a more specialized importance in pubic law, especially in nations having a composed constitution which are established on the idea of restricted government.

The convention of judicial review has been started and created by the American Supreme Court, in spite of the fact that there is no express arrangement in the American Constitution for the judicial review. In Marbury v. Madison, the Supreme Court made it clear that it had the force of judicial review.

There is supremacy of Constitution in U.S.A. and, therefore, in case of conflict between the Constitution and the Acts passed by the legislature, the Courts follow the Constitution and declare the acts to be unconstitutional and, therefore, void. The Courts proclaim void the demonstrations of the council and the official, on the off chance that they are found disregarding the arrangements of the Constitution.

The constitution of India, in this respect, is more a kin to the U.S. Constitution than the British. In Britain, the doctrine of parliamentary supremacy still holds goods. No official courtroom there can pronounce a parliamentary order invalid. In actuality each court is compelled to implement each arrangement” of the law of parliament. Under the constitution of India parliament is not Supreme.

Its forces are constrained in the two ways. To begin with, there is the division of forces between the union and the states. Parliament is equipped to pass laws just regarding those subjects which are ensured to the residents against each type of authoritative infringement. Being the guardian of Fundamental Rights and the referee of protected clashes between the union and the states regarding the division of forces between them, the Supreme Court remains in an interesting position where from it is skilled to practice the force of investigating administrative institutions both of parliament and the state governing bodies.

Dr. M.P. Jain has rightly observed: “The doctrine of judicial review is thus firmly rooted in India, and has the explicit sanction of the constitution.”

The power of judicial review of legislation is given to the judiciary both by the political theory and text of the constitution. There are several specific provisions in the Indian constitution, judicial review of legislation such as Act 13, 32, 131-136, 143, 226, 145, 246, 251, 254 and 372. Article 372 (1) establishes the judicial review of the pre-constitutional legislation similarly. Article 13 specifically declares that any law which contravenes any of the provision of the part of Fundamental Rights shall be void.

Under our Constitution, judicial review can conveniently be classified under three heads:

(1) Judicial review of Constitutional amendments.-This has been the subject-matter of consideration in various cases by the Supreme Court; of them worth mentioning are: Shankari Prasad case , Sajjan Singh case, Golak Nath case , Kesavananda Bharati case , Minerva Mills case, Sanjeev Coke case and Indira Gandhi case. The test of validity of Constitutional amendments is conforming to the basic features of the Constitution.

(2)Judicial review of legislation of Parliament, State Legislatures as well as subordinate legislation.-Judicial review in this category is in respect of legislative competence and violation of fundamental rights or any other Constitutional or legislative limitations;

(3) Judicial review of administrative action of the Union of India as well as the State Governments and authorities falling within the meaning of State.

Therefore judicial review is a fundamental principle of law that every power must be exercised within the four corners of law and within the legal limits. Exercise of administrative power is not an exception to that basic rule.

At the same time, however, the power of judicial review is not unqualified or unlimited. If the courts were to assume jurisdiction to review administrative acts which are ‘unfair’ in their opinion (on merits), the courts would assume jurisdiction to do the very thing which is to be done by administration.

The historic case of Golak Nath vs. The state of Punjab was heard by a special bench of 11 judges as the validity of three constitutional amendments (1st, 4th and 17th) was challenged. The Supreme Court by a majority of 6 to 5 reversed its earlier decision and declared that parliament under article 368 has no power to take away or abridge the Fundamental Rights contained in chapter II of the constitution the court observed. (1) Article 368 only provides a procedure to be followed regarding amendment of the constitution. (2) Article 368 does not contain the actual power to amend the constitution. (3) The power to amend the constitution is derived from Article 245, 246 and 248 and entry 97 of the union list. (4) The expression ‘law’ as defined in Article 13 (3) includes not only the law made by the parliament in exercise of its ordinary legislative power but also an amendment of the constitution made in exercise of its constitution power. (5)The amendment of the constitution being a law within the meaning of Article 13 (3) would be void under Article 13 (2) of it takes away or abridges the rights conferred by part III of the constitution. (6) The First Amendment Act 1951, the fourth Amendment Act 1955 and the seventeenth Amendment Act. 1964 abridge the scope of Fundamental Rights and, therefore, void under Article 13 (2) of the constitution. (7) Parliament will have no power from the days of the decision to amend any of the provisions of part III of the constitution so as to take away or abridge the Fundamental Rights enshrined there in

The improvement of judicial review in India is acquired from the British frontier time and its protected framework and the result of precedent-based law legal framework is the entrepreneur way of the established instrument.

“CrPC is more far reaching about the entire issue when contrasted with the Constitution.”

In the Indian Constitution, Article 20(2) says that “No Person shall be prosecuted and punished for the same offence more than once”. This article is a fundamental right guaranteed to every person in the constitution. The doctrine of double jeopardy is based on the principle that a man should not be put in peril twice for the same offence. The Latin maxim for the same is ‘Nemo debet bis vexari’.

It is to be noted here that, this right of double jeopardy is not an additional feature added in the Constitution because this already existed in Indian jurisprudence, under Criminal Procedure Code. The guarantee against Double jeopardy could be found in Sec. 26 of the General Clauses Act and Sec.403 (1) of the Cr PC 1898. Reminiscence of this can be still found under Sec. 300 of the Cr PC, 1973. In fact Sec. 300 elaborates the principle of double jeopardy much better than does Art. 20 (2) of the Constitution. It is also widely believed that Art. 20 (2) of the Constitution only provides Parliamentary gloss over a prevalent doctrine already incorporated within the Cr PC.

From the historical point of view, it is believed that the principle of Double Jeopardy since the beginning of criminal procedure. This maxim stemmed from St Jerome’s commentary in AD 391 on the prophet Nahum: “For God Judges not twice for the same offence”. This rule was later also depicted in common pleas “autrefois convict” and “autrefois acquit”. Autrefois convict means a plea that the prisoner had already been tried for and convicted of the offence. Autrefois acquit means that the prisoner has already been tried for and acquitted of the same offence.

The concept of this principle was well explained by the decision in Connelly v Director of Public Prosecutions (UK) [1964] AC 1254 in which it was laid down that: “For the doctrine of autrefois to apply it is necessary that the accused should have been put in peril of conviction for the same offence as that which he is then charged. The word ‘offence’ embraces both the facts which constitute the crime and the legal characteristics which make it an offence. For the doctrine to apply it must be the same offence both in fact and in law.”

Under the Indian Constitution the ambit of Art. 20(2) is, however, narrower than the English or the American rule against Double Jeopardy.  This article only covers the principle of autrefois convicts and it does not cover autrefois acquits. Autrefois acquit is covered under section 300 of CrPC. In the article 20(2), the word prosecution is used.

In Kalawati v. State of Himachal Pradesh a person accused of committing murder was tried and acquitted. An appeal by the state was preferred against the acquittal. It was held by the court that the accused could not plead Article 20(2) against the appeal. Hence the principles of double jeopardy do not apply to appeal. Article 20(2) does not apply when there was no punishment for the offence at the earlier prosecution.

In the case of State of Bihar v. Murad Ali Khan, the Supreme Court held that in order for the prohibition to apply under Article 20(2), the same act must constitute an offence under more than one Act. If there are two distinct separate offences with ingredients under two different enactments, a double punishment is not barred. In the case of State of Bombay v. S.L. Apte, the Supreme Court explained the legal position as follows: “To operate as a bar the second prosecution and the consequential punishment there under, must be for the ‘same offence’. The crucial requirement therefore, for attracting the Article is that the offences are the same, i.e., they should be identical. If, however, the two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore, necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out.”

In the Cr PC, the arrangement to anticipate discipline for a similar offense twice can be found under Sec. 300. This segment of the CrPC fuses the supplications of autrefois vindicate and autrefois convict. These supplications are taken as a bar to criminal trial on the ground that the denounced individual had been once effectively charged and strove for the same asserted offense and was either cleared or sentenced.

Sec. 300 of the Cr PC has six sub-sections and six illustrations which expansively deal with the principle of Double Jeopardy.

With the end goal of Sec. 300 of the CrPC, the expression “absolution” has been clarified in negative terms by saying that the expulsion of a grumbling or the release of the blamed is not acquittal.

In the case of Krishna Sen Gupta v. Manjula Mukherjee, the brother of the aggrieved filed a complaint under Sec. 494 I.P.C. However, the accused was discharged because the complaint was not filed by the complainant. The Calcutta High Court held that a subsequent complaint by the complainant for the same offence is not barred by the principle of double jeopardy. The reason for having such an explanation is that the dismissal of a complaint or the discharge of the accused is not considered as final decision regarding the innocence of the accused person.33 However, if a court applies a wrong provision of law erroneously, it would be deemed that the order in effect, was one under the provisions of law applicable to the facts of the case.

The essential point that goes over from examining the whole segment is that lone subsection (1) manages the correct arrangement identifying with Double Jeopardy. Alternate segments are only supplementing the principle sub-area with regards to the different possibilities which may emerge in the genuine usage of the precept of Double Jeopardy.

In the wake of investigating all the different sub-segments of Sec. 300 of the Cr PC furthermore Article 20(2) of the Constitution of India which articulate the convention of Double Jeopardy, it is clear from what has been examined that the Doctrine of Double Jeopardy has been all the more obviously expounded in the CrPC (Section 300) instead of Article 20 (2) of the Indian Constitution. In any case, what likewise goes over is that individuals like to allude to the Constitution when arguing a case which is secured by Double Jeopardy than the Cr PC which unmistakably gives a superior safe watch frame being indicted twice for a similar offense. The Constitution manages the whole matter in a couple lines. In any case, these few lines have been discussed about a considerable measure and the sort of legal examination that has been gotten by this is immense. On a similar hand there is less civil argument about Double Jeopardy in the Cr PC. This is additionally expected shape the way that the CrPC is more far reaching about the entire issue when contrasted with the Constitution.

John Doe, conceptually is a legal personification of the unknown, the untraceable. In this age of rampant online piracy, copyright owners, especially movie studios and online broadcasters face the trouble of not knowing the identity of potential infringers to prevent them from causing any damage. In such a scenario, the courts, taking into consideration the huge risk of revenue loss to the plaintiff owing to the copyright infringement and to avoid delay in justice-delivery, name the unidentified defendants as ‘John Doe’ a.k.a ‘Ashok Kumar’(the Indian Counterpart) and then issue ex-parte temporary injunctions by invoking Order 39 Rule 1 and S.151 of the Code of Civil Procedure. Once the identity and particulars of the defendants are found out, they are merely substituted in place of John Doe and thus without further ado the order is instantly made enforceable.

When and how is it made enforceable in practice?

Such orders, essentially, being in the nature of ex-parte injunctions, is subjected to the same standards of judicial tests and safeguards as a precondition. Hence the plaintiff has to establish the well-known triad of prima facie case, balance of convenience and irreparable damage along with details that prove the existence of a right and its potential breach. More often than not, these days such orders are garbed in the secured layer of  a quia timet action in order to prevent imminent violations which may not have already taken place.

John Doe orders, although a brainchild of the English Courts, have found its way to the Indian legal system in recent years, more specifically in the 2003 Delhi High Court Judgment of ‘Taj Television v. Rajan Mandal’ wherein it was held that the lack of identity of the defendant is not a hurdle as the only consideration of the court should be whether their activities fell within the scope of action. Since then John Doe orders have been part and parcel of the copyright jurisprudence and courts generally either direct the Internet Service Providers (ISPs) to block infringing websites and provide identity of illegitimate users or  seek the lesser-trodden path of directing to block only the particular URL that seems to have infringed the copyright.

Issues that have cropped up in recent years through judicial pronouncements

The blocking of entire websites in apprehension of potential infringement has lead to multifarious issues that affect not just the copyright owners, but also the ISPs and the legitimate users of the Internet. While the Delhi High Court’s track record of handling such disputes vide cases involving movies like Singham, Bodyguard and Don 2, has proven to be detrimental to the legitimate users owing to the blanket ban on certain websites, it also has resulted in the violation of consumer’s fair use rights under S.52 of the Copyright Act .

Since in most cases it is entrusted upon the ISPs to enforce the ban and thus forced to compromise with the interests of their customers, their avenue of revenue goes at stake. In a follow up to this, consumer complaints were filed against the ISPs citing deficiency in service  when the Madras High Court continued the trend of blocking entire websites on a petition by the production house of the movie ‘3’, by directing the ISPs to do the same. The Madras Court later, at the instance of the ISPs, rectified  its stand by narrowing down the earlier order to have  covered only those particular URLs which were found to be infringing rather than entire websites. Again Courts reverted back to the tradition of blocking websites, supporting the argument that ban on specific URLs would not hold good as a mere change in a character in the URL paves way for circumventing the order with ease.

Conclusion

The only saving grace to this vast pasture of ambiguity came out from the mighty pen of Justice  Gautam Patel of Bombay High Court in his latest Judgment in 2016 while giving John Doe order for the movie ‘Dishoom’, where he set out a well-chiselled framework to prevent ISPs from exercising arbitrary powers while blocking websites, to accommodate aggrieved third parties of the order at the earliest and to enforce the statutory limit of enforceability of John Doe orders as per S.52(1)(c) of the Copyright Act i.e 21 days, thus preventing  the ban to go on indefinitely unless further ban is approved by the Court after the limit. Since the Bombay High Court’s decision will only have a persuasive effect, an Apex court precedent is the need of the hour to smoothen this slippery patch of piracy.

Sports has always been a passionate affair for all the Indians for a long time and the impact it makes in the lives of the people has only multiplied over the years with the advent of technology that enabled streaming of live matches and games, both online and offline. More often than not such matches are aired through licensing contracts entered into between the hosting body of a particular sport and a broadcasting organization like the ESPN or Star Sports whereby an exclusive copyright, at par with an original dramatic/literary work, called ‘broadcast reproduction right’ is conferred upon the latter. S.37 of the Copyright Act, 1957 sets out this right, loud and clear. Since reporting of these events to inform the viewers about its progress and results, would need other organizations like the news houses to air snippets of such matches, it would virtually result in the infringement of aforementioned rights.

Here arises the relevance of Fair Dealing, an exception to the idea of exclusivity of copyrights, that permits the reproduction or use of copyright for the purpose of reporting of current events, in a manner laid down by S.39 (b) and S.529b) of the Act and thus embodies an exception to infringement of copyrights. While the concept of Fair Dealing or Fair use, as known in US, sits on the solid bed-rock of public interest, the commercial prospects of the broadcast right holders suppressed beneath wears off at times, leading to claims of infringement of their rights.

Is Public interest hoodwinked into commercial exploitation of the broadcast rights?

There indeed lies a fundamental right to report news under Article 19(1)(a) with the broadcasting houses of news networks but piggybacking on the commercial stakes of a broadcasting body that has acquired broadcast reproduction rights, by interposing the reporting with advertisements and brand marketing of their sponsors or using the match-clippings in the news excessively or even holding discussions, analysis and related programmes centred around displaying key moments of the match, would be totally unjustifiable and result in breach of broadcast rights. In such cases the defence of the public interest involved in the information dissemination of current events will not suffice, as it tantamount to a direct exploitation of the broadcaster’s investment. In the context of social networking and related apps also these days we often see highlights of cricket/football matches being shared by fans rather generously and celebrating its entertainment value.

Twin test of reporting of current events

In the light of such developments, it is pertinent to trace what constitutes ‘reporting of current events’ as it is the yardstick of fair dealing as mandated by S.39 and S.52 of the Act. For this, the conjoint reading of two important decisions of the Delhi High Court, namely ‘ESPN Star Sports v. Global Broadcast News Limted & Ors.’(2008) and ‘NDTV v. ICC’(2012), will throw some light to the twin test propounded by the court.

Nature of the coverage :  It checks if the coverage is mere result-oriented reporting or  involves analysis or review of a sporting event. In the latter case, injunction must follow notwithstanding the fact it is fair or unfair reporting.

Aggregate length of reporting : With regard to the this, there has been many precedents which set diverse time limits such as a minimum of 2 minutes of sports feed per bulletin or 7-10 minutes per day. But in this case the Court rationally observed that the aggregate length of reporting can only be discerned on a case to case basis as the coverage of each sport demanded different durations of display. Obviously the time-frame for reporting of a match of cricket can never be on the same footing as that of a larger event like Olympics due to the obvious change in scale and scope.

Conclusion

Fair dealing in copyright is the quintessential limb of public interest, but when clothed in the context of ‘reporting of current events’ through which broadcast of sports videos are effected, the very same limb often gets coloured in pursuit of gaining commercial mileage by other TV channels and social networking agencies, forcing it to carry out scathing attack on the broadcast reproduction rights of the legitimate broadcasters. While it certainly remains a concern as for their investments and profits, such a right of broadcasters in itself will be questioned soon as it poses a hurdle in this era where any clippings can be shared online for entertainment, educational, analytical or even promotional purposes by anyone.