IN THE SUPREME COURT OF INDIA
1984 AIR 667, 1984 SCR (2) 664
Criminal Appeal No 87 of 2020
Gramophone Company of India Ltd.
Birendra Bahadur Pandey & Ors.
Date of Judgement
21 February 1984
Reddy, O. Chinnappa (J); Venkataramiah, E.S. (J); Misra, R.B. (J)
This case takes us back into an era where it was called a golden era, where our nation started noticing the changes and development in various sectors like information technology, scientific inventions, various other works, etc. were at the doorsteps to make one’s life easy and better which attributed for a developing nation like India. In that period our nation made every possible way to build a healthy relationship with our neighboring countries, by making treaties, inked various MoU’s, even with the superpower developed nations we had a good alliance. These gestures between the neighboring countries cultivated good trading relations for exchanging technologies and various new works which gave a boost to the commerce and industrial sectors.
But there is always a rough side to every aspect, it is not so easy to determine the gravity of such aspects which makes a high ending debate. The above-noted case is a perfect epitome to extract various outcomes regarding their rights, just a mere framing of laws/treaties or having strict laws at the center does not yield results, exceptions are temporary but the execution at a very high gravity is important.
India and Nepal have signed the Convention On Transit Trade of the Land-Locked States, 1965. The Convention was the result of a Resolution of the United Nations General Assembly which, “recognizing the need of land-locked countries for adequate transit facilities in promoting international trade”, invited “the Governments of Member States to give full recognition to the needs of land-locked Member States in the matter of transit trade and therefore, to accord them adequate facilities in terms of international law and practice in this regard, bearing mind the future requirements resulting from the economic development of the land-locked countries. India has signed the Berne Convention which emphasis the protection of copyright.
It appears that “the leading authorities on international law have expressed divergent views on the question of the transit rights of land-locked countries. While one group of writers, such as Sibert, Scelle and others have held the view that these countries have an inherent right of transit across neighboring countries, other equally eminent authorities, such as Mc Nair and Hyde have held the view that these rights are not principles recognized by international law, but arrange but arrangements made by sovereign States”
The Indian judiciary strictly follows the Doctrine of incorporation which recognizes the position that the rules of international law are incorporated into national law and considered to be part of the national law unless they are in conflict with the Act of Parliament. Municipal Law must prevail in case of conflict. National Courts cannot say yes if Parliament has said no to a principle of international law. National Courts will endorse international law but not if it conflicts with national law.
Constitution and Statutory Provisions:
- Article 136 of the Indian constitution. (Special leave to appeal by the Supreme Court.)
- Section 51 Copyright Act 1957. (When copyright is infringed.)
- Section 53 Copyright Act 1957. (Importation of infringing copies.)
- Section 11 Customs Act. (Power to prohibit importation or exportation of goods.)
- Section 2 (23) Customs Act. (Definition of “Import”)
Gramophone Company Ltd. who is the present petitioner/appellant, an Indian based well-known company who mainly manufactures musical records and cassettes, received credible information from Custom department that Nepal is importing a consignment of pre-recording cassettes from Singapore which was awaiting its dispatch to Nepal via Calcutta port which the appellant believed that the cassettes were unauthorized and maliciously infringing their originality rights.
The appellant moved to the registrar of copyrights as per section 53 of Copyrights Act 1957 which gives power to the Registrar, after making such inquiries as he deemed fit, to order that copies made out of India of a work which if made in India would infringe copyright, shall not be imported, but the registrar showed a slopy behavior in the investigation, which later appellant applied to the High Court, where the Single Bench ordered the interim injunction in favor of the appellants to inspect the consignment and if any of the cassettes were found to have infringed the copyright they were to be kept with further order not issued by the registrar. With the context of this, the consignee applied to Division bench against the order of the single bench where the Division Bench interpreted the word “Import” more broadly that it doesn’t mean to bring the goods to India citing the case of Central India Spinning and Weaving & Manufacturing Co. Ltd; The Empress Mills, Nagpur v. The Municipal Committee, Wardha.1 At last, the appellant company applied special leave to appeal as per Article 136 of the Indian Constitution.
There are four issues which can be extracted:-
1. Whether international law of its own drawn into the law of land without intersecting municipal statute?
2. Whether international law overrides municipal law or any contradiction issues can be taken out of it?
3. Laws and frameworks pertaining to landlock States to the innocent passage of transit of goods to another soil are still under questionable grounds?
4. Interpretation of the word “Import” used under section 53 of the Copyright Act?
Arguments on behalf of the respondent:
Contentions put forth by the learned counsel on behalf of respondents that goods transit was not meant for commerce purpose, but onward submission to another country. The object of the Copyright Act was to safeguard the precious authorized reproduction of the work or the unauthorized explosion of the reproduction of a work in India. In accord with the order of the division bench of Calcutta High Court cited that the language of section 53 Copyright Act doesn’t justify reading the words “imported for commerce for the word imported”.
Arguments on behalf of the appellant:
Contentions put forth by the learned counsel on behalf of the appellant adduced that the activity of import was complete as the custom barrier was crossed as the same was held in Shawhney v. Sylvania and Laxman 2 and Bernado v. Collector of Customs 3.
- The Apex Court interpreted the word “Import” by keeping Section 51 and section 53 of the Copyright Act in view that ‘bringing in to India from Outside India’, that is not limited to the importation for commerce only but includes importation for transit across the country.
- The Apex Court was in the view that the Copyright Act and various Conventions and treaties which have the subject Copyright are enough to extract the issues, but the court doesn’t want to draw judgment from the history of the copyright.
- The Apex Court held that Application made under Section 53 of the Copyright can be ordered on the issue by Registrar of copyright only after making such inquiry as the registrar deems fit.
- The words and expression made under section 11 of The Customs Act differ from section 53 the Copyright Act and is not so portentous as it is mentioned in it and even order from section 53 doesn’t make so much of difference and doesn’t co-joint with section 11.
- Further, the Apex Court gave a complete elaboration that section 53 of the Copyright Act that the former it is quasi-legislative in character and later it is converted to quasi-judicial in nature for e.g order made under section 53 of The Copyright Act is quasi-legislative and an appeal against the order to the Copyright Board is quasi-judicial.
- Nations must go in compliance with international laws and the municipal law must respect rules of international law even as nations respect international laws.
- The sovereignty and the integrity of the republic and the supremacy of the constituted legislatures in making the laws may not be subjected to external rules except to the extent legitimately accepted by the constituted legislatures themselves.
- The Doctrine of incorporation also recognizes the position that the rules of international law are incorporated into national law and considered to be part of the national law unless they are in conflict with the Act of parliament.
- With the bilateral Treaty of Trade and Treaty of Transit entered into between India and Nepal in order to expand trade between the two countries in practice means a guarantee to Nepal to permit the hinder free flow of goods needed by Nepal from India and assurance of freedom of transit for goods originating from outside India across the Territory of India to reach Nepal.
- Treaty itself contains that either India and Nepal, both countries are free to impose necessary restrictions to protect industrial, Literary or artistic property and prevent false marks, false indications of origin or other methods of unfair competition
The judgment of the apex court passed in favor of Appellants in the above-noted case is in the interest of justice, the judgment is correct and clarifies the law perfectly which has set aside the order made by the division judge of the Calcutta High Court. The issues and facts which were raised in the case, the apex court significantly bifurcated the issues into minute nature and based on the questions pronounced the judgment. The nature of the case can glance into the macro-level because there are various parameters and various provisions are involved in it.
The meaning of Section 53 of The copyright Act explained by laying down various principles and interpreting it by keeping the rights of the copyright holder.
When it comes to provisions of treaties and conventions signed by the countries and how to oblige with international law is well envisaged by the apex court. Past is always a history but it cannot be carried into the future prospectus it should be developed by seeing the gravity of the case, what will remain unchanged is the principles laid down by them. Just by framing laws and provisions are not enough, execution of statutory law in a correct way to act as a remedial and immunity is very important, where to fix the correct remedial is hardcore and tough job in compliance with the interpretation of laws.
Edited by Parul Soni
Approved & Published – Sakshi Raje
1 Central India Spinning, and Weaving & Manufacturing Co. Ltd; The Empress Mills, Nagpur v. The Municipal Committee, Wardha (1958) SCR 1102).
2 Shawhney v. Sylvania and Laxman,77 Bom. LR.380.
3 Bernado v. Collector of Customs A.I.R. 1960 Kerala 170.