Introduction:-

Cinema is a form of artistic expression of thoughts, tales, and sometimes views, often influenced by reality that is frequently music-based, fascinated, enchanted, or simply entertained. There are hardly any other mediums of expression that can literally assert hostile degrees of insidious power and presence in our everyday lives. Since the evolution of the human civilization, the mankind had started pursuing for the mediums of entertainment to provide relief from their daily routines. The activities that brought the solace included singing, dancing, sports, playing, and films. While all the events had their appeal, the films had made something exceptional. Films or cinema not only offered entertainment for the viewers, but also manifested the minds of the viewers and led them to believe what the director wanted them to believe. Cinema or motion picture was defined as the art of colorful moving images. Since its inception, cinema has been one of the most important tools for expressing ideas. It is a miniature of the social values and the prevailing trends of society. It has served as a source of ideas and values for transformation and revolution. This offers a forum for society to look forward to positive transition introspection.[1] In the words of Justice Clarke[2]: “It cannot be doubted that motion pictures are significant medium for the communication of ideas. They may affect public attitudes and behavior in a variety of ways, ranging from direct espousal of thought which characterizes all artistic expression. The importance of motion pictures as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform”.

The advent of motion pictures in India began with an exhibition of the Lumiere cinematograph in 1896 in Bombay. With the increasing popularity of the film medium, cinema halls were constructed in the major cities, and travelling showmen brought the new form of entertainment to many of the rural areas around the turn of the century. In December, 1912 the first film made in India, “Rajah Harischandra,” was shown in Bombay. Since then, the Indian film industry had started to grow in an unprecedented manner, now by ending up in making a billion dollar market. Considering the magnitude of the power and effect the cinema has on its audience, since the colonial times the state considered it necessary to control this means of expression in order to limit its misuse. The practice of imposing restrictions has come to be called as censorship. Moreover, with the passage of time new issues are also being arisen with aspect to the field of cinema. One of such is the copy right issue being faced by the Bollywood and the legal issues arising from such infringements. Another Issue is regarding the tussle between the Freedom of Speech and Expression guaranteed underArt.19 (1) (a) of the Constitution and the State’s action of Censorship. In this paper, I will focus on the legal provisions, Court Rulings, Reports of various committees and commissions on the issues being faced by the Indian Cinemas and conclude by advancing some feasible suggestions.

Freedom of Expression and Censorship:-

Freedom of speech and expression is one of the most hallowed freedoms granted by the Constitution of India. It’s the idea of being able to talk openly. It is often seen as an important principle in liberal democracies.[3] Freedom of speech and expression is one of the most hallowed freedoms granted by the Constitution of India. It’s the idea of being able to talk openly. It is often seen as an important principle in liberal democracy. Article 19(1) (a) of the Constitution provides that all citizens have the right to freedom of speech and expression. It has been generally agreed that cinema, as a mode of expression of feeling, is perceived in accordance with the protection contained in article 19(1) (a). Nevertheless, Article 19(2) allows for fair limitations on the rights granted under Article 19(1) (a).[4] However, Article 19(2) lays down reasonable restrictions on the freedom guaranteed under Article 19(1) (a). Reasonable restrictions which can be imposed over these rights can be on the grounds which include interests of the “sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence”.[5]The same restrictions are articulated under the Cinematograph Act under which guidelines are laid down on the basis of which film certification is to be done.[6] Regulatory power over cinema is vested to the Union Parliament under Entry 60 of the Union List of the VII Schedule. The states enjoy limited jurisdiction with regards to regulation of motion pictures under Entry 33 of the State List.

Cinema in India is regulated under the Cinematograph Act of 1952. The Act makes provision for the certification of cinematograph films for exhibition and for regulating exhibition by means of cinematographs.[7] Such regulation is also called as censorship. The films are generally censored to monitor for different levels of social and political problems, the showing of which can be conceived as alarming to people. Crime, pornographic content, language misuse, alcohol usage, violent material, radical material and abuses of human rights are important causes that fall under censorship. There is a very limited scope of censorship in India, under the Cinematograph Act of 1952. The Board has nowhere in the Act been granted the authority to censor the motion pictures beyond the specific conditions provided for under the reasonable restriction except as provided for in section 5(B) of the Act. Only if the motion picture or the part / parts of the motion picture contravene section 5(B) of the Act will the Board order the applicant to review and change the film’s objected portion.[8] In February 1960, the Indian Ministry of Information and Broadcasting formulated more detailed guidelines for the censorship and certification of motion pictures. These rules were promulgated as the Cinematographic Censorship rules. Under the heading “Application of General Principles”, a film was not to be certified for either restricted or unrestricted viewing if it deals with the relations between the sexes in such a manner as to[9]:

(I) lower the sacredness of the institution of marriage;

(ii) Suggest that illicit sexual relations are ordinary incidents of life and not to be reprobated;

(iii) Depict-

(a) Rape, premeditated seduction, or criminal assaults on women;

(b) Immoral traffic in women;

(c) Soliciting prostitution or procuration;

(d) Illicit sexual relations;

(e) Excessively passionate love scenes;

(f) Indelicate sexual situations;

(g) Scenes suggestive of immorality

It should be noted, however, that not all exhibitions of motion pictures in India are necessarily subject to the strictures of the Cinematograph Act. On the contrary, the Act provides that the central government may exempt “the exhibition of any film or class of films” from the terms contained therein or from the Censorship Rules, subject to certain conditions and restrictions. The primary beneficiaries of this exemption are recognized film societies and cultural groups organized by foreign embassies in India who now may view films which are not subject to expurgation by the censorship authorities and may be exhibited without the need of a certificate[10].

Nevertheless, the powers bestowed on the CBFC under the Act have been frequently misused since, on a variety of occasions, it has gone beyond its regulatory authority to govern cinema, which is evidently in breach of the basic principle of freedom of thought and expression. It is important to remember that the authority of the Board under the Act applies only to the supervision of the film by way of certification. Ideally, the primary and only responsibility of the CFBC would be to ensure that the proper exhibition certificate is issued to films subject to fair scrutiny. In many cases, however, the stance taken by the Central Board of Film Certification was highly questionable and one that attacked the very basis of the freedom of speech and expression.

In the 1960s, following intense criticism of the Central Board of Film Censors (‘Censor Board’), the Indian government instituted a Committee to examine film censorship laws, headed by Justice GD Khosla. The Khosla Committee observed that, by a ‘strange inversion’, the Censor Board had adopted the same guidelines which the Raj had used to safeguard ‘the dignity of the white people’. The Committee found that inflexible censorship policies were dissuading filmmakers from tackling provocative political and sexual themes. The Committee concluded that some the Censor Board’s practices were in violation of Article 19 of the Constitution of India, and were thus ‘unduly constrictive’ of artistic freedom.[11] This was followed by several Judicial Interpretations on Freedom of Speech and Expression v.Censorship.

Judicial Pronouncements on Censorship:-

It has already been noted above that the issue of the legality of censorship requires an interaction between Article 19(1) (a) which guarantees freedom of speech and Article 19(2) which provides for a fair restriction of that right. According to the Indian Constitution for restricting the exercise of rights pursuant to Article 19(1) (a), the courts have held that the restriction must be enforced by a valid law which must be fair, reasonable,[12] and must be closely linked to purposes mentioned in the respective sub-clauses of Article 19.[13]

With respect to the extent of the restrictions, the Court unequivocally held that the restriction had to be read explicitly and strictly. Because restrictions are in the form of limits on the exercise of the right; they are required to be treated with skepticism, thus putting a heavy burden on the authorities who try to enforce them.[14] The Constitution set out only the grounds for enforcing limitations, thereby granting the courts the power to determine if the restriction imposed was compatible with the purpose of the law.[15] By wielding such authority, the courts had from time to time corrected the misuse of executive actions and had balanced the Censorship with the freedom of speech and expression. Some of the decisions of the court are as follows:-

In K.A.Abbas v. Union of India[16], Chief Justice Hidayatullah has for the first time formulated certain guiding principles of censorship in India. The Court held that censorship of films and their classification according to age groups constitute a legitimate exercise of power in the interests of public morality, dignity, decency etc. It is not inherently a violation of freedom of speech and expression. The most relied on part of the decision was the conclusion that a person reading a book or other writing or hearing a speech or seeing a painting or a sculpture is not as profoundly moved as a view of a film. Consequently, the consideration of the latter on a different footing is also a valid classification. Besides, the court also offered the reason for imposing a pre-censorship. This finding of the Court was the reason provided by all the Governments for enforcing restrictions and censoring the films.

In S.Rangarajan v. P.Jagjivanram[17], The Supreme Court has zealously upheld freedom of expression. In this famous case, the Supreme Court overturned the judgment of the High Court of Madras, which rescinded the U certificate awarded to the film Ore Oru Gramathille. This film, based on the crucial aspect of the government’s policy of reservation, was seen by the High Court of Madras as posing a theme that could cause widespread unrest and problems with law and order in the state of Tamil Nadu. However, when the case was brought before the Supreme Court as an appeal, the Court demolished the contention of the State that the film should be denied a U certificate on fear that it could generate a public stir. The Court held that, “If the film is unobjectionable and cannot constitutionally be restricted under Article 19(2), freedom of expression cannot be suppressed on account of threat of demonstration and processions or threats of violence. That would tantamount to negation of the rule of law and surrender to blackmail and intimidation. It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State. The State cannot plead its inability to handle the hostile audience problem. It is its obligatory duty to prevent it and   protect the freedom of expression”.

In LIC v. Prof.Manubhai D. Shah[18], The Supreme Court has again intervened to secure the freedom of expression of the creator in Prof. Manubhai. The filmmaker produced a documentary on Bhopal Gas Tragedy, which won the coveted Golden Lotus Awards. However, when the time had come for its release in India, the national television channels declined to air it citing opposition from the political parties. The Court rejected the argument and held that just because the documentary is critical of the Government, there is no basis to refuse publication of the documentary.  The Court made it clear that “subject to Article 19(2), a citizen has a right to publish, circulate and disseminate his views to mould public opinion on vital issues of national importance. Hence, any attempt to thwart or deny the same would offend Art. 19(1) (a). Under such circumstances, the “burden would, therefore, heavily lie on the authorities that seek to impose them to show that the restrictions are reasonable and permissible in law“.

In Phantom Films (P) Ltd. v. Central Board of Film Certification[19], The Board refused to certify the film “Udta Punjab” which is based on the drug threat in the state of Punjab. Besides, refusing to certify, the Board suggested almost 13 film cuts as a mandatory measure to seek certification. However, on appeal by the filmmaker, the High Court of Bombay criticized the Central Board of Film Certification for its conduct and inadequate handling of the matter. The Court has made a very critical point that the Board is not automatically empowered to censor films. The term censor is not included in the Cinematography Act. The Board may make changes to the film, but this power must be exercised in compliance with the constitutional guarantee and the orders of the Supreme Court. It can be rightly assumed that the decision of the Court in this case would certainly serve as a landmark which could pave the way for the long-standing reformation of the Certification Board. It can be seen that the Board has wrongly expanded its powers, which were in fact restricted to the approval of films for exhibition purposes only, so that it now even has the power to censor them. Such an attitude of the Board, which is often politically motivated, can put the rights of the citizen at risk.

In Sree Raghavendra Films v. Government of Andhra Pradesh[20], In the exercise of the powers of u/Sec.8(1) of the A.P. Cinemas Control Act,1955 , the exhibition of the film ‘Bombay’ in its telugu version was suspended, despite having been approved by the Censor Board for unrestricted display. The suspension was imposed citing a cause that could harm the sentiments of certain communities. The Court found that the authorities that passed the contested order did not even watch the film. The Court therefore quashed the order as arbitrary and not based on proper material.

In another case of F.A. Picture International v. Central Board of Film Certification[21], while overruling the FCAT’s order to censor the movie, ‘Chandbujh Gaya’, the Bombay High Court opined: “Censorship in a free society can be tolerated within the narrowest possible confines strictly within the limits which are contemplated in a constitutional order.” It strongly criticized the role of the concerned authorities and observed that: “The view of the censor does no credit to the maturity of a democratic society by making an assumption that people would be led to disharmony by a free and open display of a cinematographic theme. The certifying authority and the Tribunal were palpably in error in rejecting the film on the ground that it had characters which bear a resemblance to real life personalities. The constitutional protection under Article 19(1) (a) that a film maker enjoys is not conditioned on the premise that he must depict something which is not true to life. The choice is entirely his”

In the case of Union of India v. KM Shankarappa[22], the Supreme Court disapproved of the Government retaining powers by enacting Section 6(1) of the 1952 Act and declared it ultravires the Constitution. It held: “The Government has chosen to establish a quasi-judicial body which has been given the powers, inter alia, to decide the effect of the film on the public. Once a quasi-judicial body like the Appellate Tribunal [FCAT], consisting of a retired Judge of a High Court or a person qualified to be a Judge of a High Court and other experts in the field, gives its decision that decision would be final and binding so far as the executive and the Government is concerned. The executive has to obey judicial orders. Thus, Section 6(1) is a travesty of the rule of law which is one of the basic structures of the Constitution. The Executive cannot sit in an appeal or review or revise a judicial order”.

Copy Rights Infringement Issues in Indian Cinema:-

Copyright ordinarily and primarily means that the creator alone possesses the right to make the copies of his/her work or alternatively, may prevent all others in indulging or from making such copies. The basic motive for such a protection is the premise that “innovations require incentives”. The law of Copyright recognizes and understands this necessity and stretches it in the form of legal sanction. Furthermore, any commercial exploitation of copyright work results in income to its creators and hence resulting in pecuniary rewards to his creativity. But where there’s a way to the creativity, there’s always a measure to circumvent the creative mind and input. One of the earliest and most popular being piracy.

The problem of piracy and its persistence has attracted the continuous attention of government policy makers and law enforcement officials because of the fact that piracy eats the economy like a pestering parasite. The wrath of piracy was not only prevalent before the introduction of Internet. It rather soared to its height after the coming of the digital environment, bringing up the incidence of digital piracy. This virus has sickened the music, publishing, media, software and entertainment industry equally. As far as the film industry is concerned, piracy has had a knee-breaking distress here too.[23]

India is estimated as the largest film industry, yet seriously wedged by the stance    of piracy. A report, ‘The Effects of Counterfeiting and Piracy on India’s Entertainment Industry,’ released by US-India Business Council (USIBC) along with Ernst & Young showed that around 800,000 direct jobs and near about Rs. 16,000 crores are sacked due to piracy.[24] As per a 2013 article in WIPO Magazine, the Indian film industry loses around INR 18,000 crores (US$3.34 billion) and about 60,000 jobs every year due to piracy,[25] when the size of the Indian film industry is estimated at Rs. 19,000 crores with over 2,000 movies released annually.

Legal Measures to Combat Copy Right Infringements in Film Industry:-

Articles 11 & 12 of WIPO Copyright Treaty (WCT) and Articles 18 & 19 of WIPO Performers and Phonograms Treaty (WPPT) mandate the contracting parties to take ‘adequate’ and ‘effective’ legal remedies against unauthorized meddling of information and rights management of electronic dealings and information, they also impose a duty to enforce law to take strict measures against the promoters of such violation of right.[26] Although India did not become the part of WIPO Internet treaties, the introduction of new provisions by 2012 Amendment in the IT Act present a different picture. The provisions similar to the provisions contained in WIPO Internet treaties have been adopted in the form of Sec. 65A and 65B.[27]

Judicial Pronouncements on Copy Right infringements in Film Industry:-

The judiciary had to rely on the basic provisions of copyright law, without the touché of instruments like DRM and electronics right management. However, Indian judiciary has proved its mettle in dealing with the cases of infringement successfully and efficiently to some extent, but a bigger picture of the scene still states a redundant attitude of the court.[28]

In RG Anand v. Delux Films[29], the Court has enunciated few guidelines relating the infringement of the copyrights. They are:-

1.     One of the surest and the safest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.

2.     Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises.

3.     Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendant’s work is nothing but a literal limitation of the copyrighted work with some variations here and there it would amount to violation of the copyright. In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy.

In the case of Twentieth Century for Film Corp. v. Sohail Maklai Entertainment[30], the Bombay High Court held that Sohail Maklai film “Knock Out” was indeed liable for infringement of the copyrights of the 20^th century Fox’s movie “Phone Booth”. The decision of the Bombay High Court is historic in one way that for the first time in India the court had actually held Bollywood liable for Copy Rights infringement.

In the case of Barbara Taylor Bradford v. Sahara Media Entertainment Ltd.[31], the court relied upon the judgment of the Supreme Court delivered in the case of R.G. Anand v. Delux Films and decided that “there was no infringement of copyright as a theme is not protected under the Indian Copyright laws and reiterated the fact that ideas are given no protection and it is only the expression of an idea which can seek protection under the Indian copyright laws. Ideas can however be protected only when a person with an idea reveals the idea to another person in confidence or through the presence of non-disclosure agreements (NDA) between the parties.”

It is an open secret that the Bollywood had been accused of plagiarism to the effect of stealing scripts of movies, music and even ideas from domestic as well as from International works. It has been the case for a long time now, from Amitabh Bachchan and Hema Malini starrer 1982 movie ‘Satte Pe Satta’ which immensely resembled the 1954 Hollywood movie ‘Seven Brides for Seven Brothers’ to the very recent Ajay Devgan and Kajal Aggarwal starrer 2011 movie ‘Singham’ which had action sequences copied from the 2010 Hollywood movie ‘Red’.[32]

This imitation in Bollywood happens not just from the movies of the foreign film industries like Hollywood but also from different film industries within India like Kollywood or Tollywood. Recent example of this is the movie ‘Ladies Vs Ricky Bahl’ which was accused to be a copy of the Kollywood film ‘Naan Avan Illai’. The Indian filmmakers sometimes go to the extent of lifting an entire scene from these movies knowing and realizing well that to escape liability and accusations of plagiarism, they can take advantage of the various loopholes in the provisions of the Copyright Act, 1957 as well as find themselves to be protected by the lumbering legal system of India[33]

Conclusion and Other Suggestions:-

Some of the Suggestions relating to the Censorship are:-

1.     There is acute politicization when it comes to censoring of movies. The freedom of artistic expression, which the Constitution guaranteed had to be restricted only in exceptional situations. With digitalization taking over, virtual mediums have come up and access to television series, plays, stand-ups and other such OTT platforms are available at free/minimal   cost online. Interestingly, the standard of regulation for such media is lower than for movies. Furthermore, they are subject to post-censorship as against pre-censorship, which movies have to go through. Recent surveys revealed that in the today times, people prefer watching online TV series and movies over physically visiting theatres. Therefore, it is high time that the regulations of the two are reconciled. Moreover, The fact that regulations for the two medium are different and ironically, the regulations are more strenuous for traditional media, this amounts to discrimination barred by Article 14 of the Constitution. Article 14 embodies the right to equality and requires the Government to treat equals as equals. A challenge under Article 14 can be made when a classification lacks reasonable classification and intelligible differentia. In the present case, there is no reasonable basis for strictly regulating movies as against the virtual media, despite the latter being more easily accessible.

2.     As per the current law, there are barely any qualifications for being a member of the Advisory Panel. It is the complete discretion of the Central Government which can nominate any person who it believes is qualified to judge the effect of the films on the public. The Act and the Rules are completely silent on what are the parameters on which one’s ability to judge the effect of films on the public can be assessed, Through the Amendments the qualifications shall be brought forth[34].

3.     A long-standing demand of the filmmakers has been to establish the Film Council of India (FCI). The demand has been to stick to the original object of the CBFC as stated in its Preamble i.e. certification of movies. With time, the CBFC has acquired sweeping powers of editing, mutilating and even banning a film. The proposed FCI shall take away such powers from the CBFC and vest it in itself. Therefore, in case the CBFC finds any content objectionable, it can refer the same to the FCI. The decision over such content shall then be undertaken by the Council consisting of retired Judges, lawyers, filmmakers, writers and artists.

By looking into the above discussed censorships, I believe that the censorship Laws in India are too stringent which needs to be relaxed by giving way to the film makers to express their views freely in this democratic society. However, the rules has to be formulated to regulate the content manifested by the OTT Platforms also. The Balance needs to be created between the Freedom of Expression and the Decency and Public Interest.

When it comes to the copyright infringements, Bollywood has made it a habit to imitate the works of Hollywood primarily taking it to be the formula for a sure-shot successful film. But, Bollywood has to realize that when they copy and imitate Hollywood scripts, styles, and themes, they are effectively conceding creative inferiority of their own. There is a greater need now for Bollywood to rethink its long allegiance towards imitating Hollywood.[35]

The Copy Right Laws has be made more stringent to deal with the infringements happening in the Bollywood and also a Regulatory body consisting of a group of veteran film makers and Judges had to be created so as to curb such infringements.

The post Indian Cinema and Judiciary appeared first on Legal Desire Media and Insights.

An under-trial prisoner is a one who faces trails in the competent court. These prisoners to speak technically, are the ones who face trials and during the thus are kept in the prison. The purpose of imprisonment or confining an under trial within a prison is not to punish, but as a means of keeping the accused of a crime detained until the actual punishment could be carried out and to prevent him from tampering with the evidence or to prevent him from committing the further crime. However, the existence of an disproportionate number of remands, undertrials and other unconvicted inmates in prisons has given rise to increasing public and professional concerns regarding non-compliance with human rights in institutions. This is particularly due to the protracted detention during the pendency of investigation and the trial which take a long time. By taking note of NCRB Annual Prison Statistics Report, one might express their concern about the number of the undertrial and unconvicted prisoners, which had reached alarming and disproportionate dimensions in the recent years[2]. The pathetic situations of the undertrials in the prisons are being revealed through some writ petitions such as the case of Rudul Sah.

The concept of human rights of under-trials was embraced under The Standard Minimum Rules for the Treatment of Prisoners (1955) also known as ‘NELSON MANDELA RULE’ which has been adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, where some of the important guidelines were laid down relating to the Under trials such as segregation of Under trials from convicted so as to not to get influenced by the attitude of convicts and for the provision of legal aid etc[3].  

India being a signatory to the convention made so many efforts and exemplified the human rights for under trials through various Acts, guidelines, manuals and commissions. The National Human Rights Commission has been taking steps to arrange the release of under trials from various prisons in the country, contemplating the problems both from human angle and Prison Management perspective. The NCRB, which submits the Annual Prison Statistics to the government helps the NHRC to assess the Conditions of the under trials in the Prisons. The NALSA and SALSA were also very keen about the conditions of the undertrials in the prisons. Supreme Court in various instances had issued orders to mitigate the problems of the undertrials. It had ordered for the constitution of the “Under trials Review Committee” in 2013 to review the conditions of the Undertrial and to examine how many are eligible for the bail under Sec.436A of Crpc. The State Legal Services Authority has proposed for the fast track courts to dispose the matters relating to the undertrials effectively.[4]

Analyzing the Prison Statistics Report, 2018:

The NCRB, which comes under the auspices of Ministry of Home Affairs, is responsible for providing the annual statistics relating to the prison, which includes various aspects such as Number of Prisons, Number of Prisoners, Categories of Prisoners, Deaths in Prisons and Age and Sex of Prisoners etc. Here, I Just focused on the data relating to the undertrial prisoners.

From the Prison Statistics Report, 2018[5], it evident that there is a steep rise of undertrial prisoners in the prisons from 2016-2018, that is about 10.4% from 2016. The Population of undertrial prisoners in prison by the end of 2016 is 2, 93, 058 and by the end of 2018 is 3, 23, 537, which constitutes 69.4% of the total prison population[6]. Out of 3, 23, 537 undertrials, 51.3% were in District Jails, 35.9% were in central Jails and 10.5% in the sub jails[7]. The UP, Bihar and Maharashtra stands in first 3 consecutive places with highest number of undertrial prisoners[8]. From the above data it can also be inferred that the women undertrials were 12, 663 in number and accompanied by children who stands at 1, 590[9]. The Foreign Undertrials stands at 2, 611.[10]

It is also clear from the above statistics the most of the undertrials are of the age group of 18-30 years and they have come from unprivileged backgrounds with no formal education and belonging to the lower castes[11]. Moreover, there are 5, 104 (1.6%) undertrials who have been languishing in the jails for more than 5 years[12]. There are 1, 822 undertrials, who are eligible for release under Sec.436 but were not released due to the procedural delays[13].

It is pity to mention that there are only 1, 339 jails to accommodate the whole prison population, which constitutes around 3, 96, 223[14]. This depicts the problems of overcrowding in the Indian Prisons. Moreover, the overcrowding, per se, has its own affects. Such as, due to overcrowding all categories of prisoners are clubbed at one place and it may leads to the negative impact on the Juveniles, First time offenders and Petty offenders etc. It also may lead to the violence in prisons and the convicted/ Brutal offenders takes the advantage of the First time (or) petty offenders and name call them with their castes since most of the undertrials belongs to the lower and unprivileged castes and could not afford the legal aid. It also creates the kios in the prison administration. The prison administration instead of being a reformation center just confines itself into a “clerical workshop” by just jording down the names of the prisoners. In the case of Sri Ramamurthy v. State of Karnataka[15], the court has identified the 9 major problems which afflict the prison system and requires the immediate action. “They are: (1) overcrowding; (2) delay in trial; (3) torture and ill- treatment; (4) neglect of health and hygiene; (5) insubstantial food and inadequate clothing; (6) prison vices; (7) deficiency in communication; (8) streamlining of jail visits; and (9) management of open air prisons”.

The 3 major hindrances[16], which are coming in the way of the undertrials, are

(i)              Lack of quality legal aid services for undertrial prisoners who cannot afford the services of good lawyers to defend themselves in court. While the state does provide free legal aid services to needy persons through the district legal services authorities, often the quality and consistency of these services are questionable. There are too many complaints against these lawyers about irregular appearances in courts, lack of communication with their clients about the status of their cases.  

(ii)            Financial system of bail that exists in our country. This means that an accused has to deposit the bail amount in the court till the end of the trial in case of cash bail, or produce a surety who can prove that he can pay the bail amount specified in the bail order in case the accused absconds. This implies that if a person is poor and cannot pay the cash bail or produce a surety, he/she will continue to languish in prison till the trial ends. This, though relaxed with the substitution of Section 436A of Crpc has becoming difficult for the undertrials to get the bail as we can see from the above data.

(iii)          Delay in trial process. There are number of factors which are attributed to the delay in the trial process, one of such is the very poor judge–population ratio in India, which stands at 19 judges per million population[17], as compared to between 35 and 50 judges per million population in most advanced countries. There are some other factors which attributes the delay in trial such as Non Appearance of witness, Non Production of Accused in Courts and tactics by the advocates for protracting the case.

Legal Provisions and Judicial Attitude towards Undertrials:-

There is no specific provision in the Constitution which deals with rights of the undertrial prisoners. In order to uphold the Rule of Law and Fairness, the Supreme Court had to interpret Articles 14, 19 and 21 in Part III along with Articles 38, 39, 39A and 42 in Part IV to provide various fundamental rights available to the undertrial prisoners.

Besides the Constitutional guarantees, there are so many legal provisions which guarantee the rights to the undertrial prisoners Such as Section 41, 41A, 41B, 41C, 41D, 436, 436A of the CrPC, Section 7 and 29 of the Indian Police Act, 1861 and Section 376(1) (b) of the Indian Penal Code, 1860.

The study of the various rights of the prisoners, enunciated in the catena of judgments in the post Maneka Gandhi[18] period can be done under 3 subheadings[19]:

(a)  Right to Speedy Trial

The right to speedy criminal trial is one of the most valuable fundamental rights guaranteed to a citizen under the Constitution, which is integral part of right to life and liberty guaranteed under Article 21. In Kartar Singh vs. State of Punjab[20], it was observed: The concept of speedy trial is read into Article 21 as an essential part of the fundamental right to life and liberty guaranteed and preserved under our Constitution. The right to speedy trial begins with the actual restraint imposed by arrest and consequent incarceration and continues at all stages till it consummates into finality.

In the leading case of Hussainara Khatoon v. State of Bihar[21], it was held that where the under-trial prisoners have been in jail for periods longer than the maximum term to which they could have been sentenced if convicted, then their detention in jail is unjustified and violative of Art. 21. It further held that the right to speedy trial is an integral and essential part of the fundamental right to life and liberty enshrined in Art. 21.

(b)  Right to Legal Aid

It was also held in Hussainara Khatoon’s Case[22] that “Right to free legal aid as given under Art.39A was implicit in Art. 21 because a procedure which does not make available legal services to an accused person, who owing to his poverty cannot afford a lawyer and who would, therefore, have to go through the trial without legal assistance cannot possibly be treated as just, fair and reasonable procedure and is thus, violative of Art. 21.”

In Khatri v. State of Bihar[23], it was held that the legal aid should not be provided at the commencement of the trial only, but it should be provided when the person is brought before the magistrate for the first time. Lastly; in the chain of these cases ensuring justice to the prisoners, comes the case of Suk Das v. Union Territory of Arunachal Pradesh[24], which held that it was an obligation on the part of the Magistrate or Session Judge to tell the accused of his right to have a lawyer at State’s cost.

(C) Right to Compensation:-

An Undertrial Prisoner can approach the Supreme Court under Art.32 and High Court under Art.226 and claim for compensation for the violation of his rights while in custody of the police. In D.KBasu v. State of West Bengal[25], the court had talked about the right of compensation of the victims and held that “The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages for tortious acts of the public servants. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law since the purpose of public law is not only to civilize public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Grant of compensation in proceedings under Article 21 and 226 of the Constitution of India for the established violation of the fundamental rights guaranteed under Article 21, is an exercise of the Courts under the public law jurisdiction for penalizing the wrong doer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen”.

In Rudul Sah v. State of Bihar[26], it was observed that “One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. If civilization is not to perish in this country as it has perished in some others too well-known to suffered, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner’s rights”.

In Bhim Singh v. State of J&K[27], the court while awarding the compensation to the victim Bhim Singh observed that, “Police Officers who are the custodians of law and order should have the greatest respect for the personal liberty of citizens and should not flout the laws by stooping to such bizarre acts of lawlessness. Custodians of law and order should not become depredators of civil liberties. Their duty is to protect and not to abduct”.

Some other Notable Cases:-

In Moti Ram v. State of Madhya Pradesh[28], the court observed that “The consequences of pre-trial detention are grave. Defendants presumed innocent are subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job if he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family.”

In the case of In Re: Inhuman Conditions in 1382 Prisons[29], the Supreme Court had issued directions to setup Undertrial Review Committee in every district which should specifically look into aspects pertaining to effective implementation of Section 436 of the Code of Criminal Procedure and Section 436A of the Code of Criminal Procedure so that undertrial prisoners are released at the earliest and those who cannot furnish bail bonds due to their poverty are not subjected to incarceration only for that reason. The Under Trial Review Committee will also look into issue of implementation of the Probation of Offenders Act, 1958 particularly with regard to first time offenders so that they have a chance of being restored and rehabilitated in society

In the case of Maliyakkal Abdul Azeez v. Assistant Collector, Kerala[30], the court while examining the views of Joint committee on Sec. 428 of the CrPC observed that, “The Committee has noted the distressing fact that in many cases accused persons are kept in prison for very long period as undertrial prisoners and in some cases the sentence of imprisonment ultimately awarded is a fraction of the period spent in jail as undertrial prisoner. Indeed, there may even be cases where such a person is acquitted. No doubt, sometimes courts do take into account the period of detention undergone as undertrial prisoner when passing sentence and occasionally the sentence of imprisonment is restricted to the period already undergone. But this is not always the case so that in many cases the accused person is made to suffer jail life for a period out of all proportion to the gravity of the offence or even to the punishment provided in the statute. The Committee has also noted that a large number of persons in the overcrowded jails of today are undertrial prisoners. The new clause seeks to remedy this unsatisfactory state of affairs. The new clause provides for the setting off of the period of detention as an undertrial prisoner against the sentence of imprisonment imposed on him. The Committee trusts that the provision contained in the new clause would go a long way to mitigate the evil.“

Recommendations of Various Committees on Undertrial Prisoners:-

There have been so many recommendations made by various committees, commissions and International Organizations on the Conditions of Undertrial Prisoners. Here, I’m going to deal with 3 Recommendation Reports. They are 78^th Law Commission Report, Mulla Committee on Prison Reforms and Amnesty International Report.

(i)    78^th Law Commission of India Recommendations:-

The 78^th Law Commission Report on Congestion of Undertrial Prisoners in Jails had made a few suggestions in respect to the mitigating the problems of the undertrials. Some of the Recommendations[31] are:-

(a)   To deal with the problem of congestion of undertrials, the prisoners had to be segregated into 3 types:-

(i)    Persons being tried for non-bailable offences in respect of whom courts have declined to pass an order for their release on bail.

(ii)  Persons being tried for non-bailable offences in respect of whom courts have passed order for bail but who, because of difficulty of finding appropriate surety or because of some other reason, do not furnish the bail bond.

(iii)                     Persons who are being tried for bailable offences but who, because of the difficulty of finding appropriate surety or some reasons, do not furnish the bail bond

and to implement measures mentioned in 77^th Law Commission to reduce delays and arrears in the trial courts.

(b)  In order to prevent interested parties from prolonging pendency of cases, a certain amount of strictness is necessary to ensure prompt disposal.

(c)   Trial Magistrates should furnish periodical statements of cases in which the accused are in custody and which are not concluded within the prescribed time.

(d)  In times of some agitation, numerous persons defy law and court arrest, causing a sudden spurt in the number of undertrial prisoners.  Most of them would not offer bail.  Such persons should be put up for trial soon after their arrest in order to avoid congestion in jails.

(e)   Quite a substantial number of persons who are being proceeded against in security proceedings for keeping peace and for good behavior are detained in jail as undertrial prisoners because of their inability to furnish the requisite bond. The cases against those persons should be heard with due promptness and despatch. Efforts should be made to conclude these proceedings within 3 months.

(f)   Inordinate delay in the investigation of cases should be avoided. The diversion of police officials concerned with investigation to other duties relating to law and order should be avoided. It causes delay in investigation, as pointed out in 77th Report.

(g)  Where the accused is in jail, adjournments of cases should not be granted unless absolutely necessary.

(h)  There should be separate institutions for the detention of undertrial prisoners, the induction of a large population of undertrial prisoners in a building essentially meant for convicts being undesirable. However, the creation of such institution is a matter of long-term planning and of financial implications. Other steps to reduce the number of undertrial prisoners may therefore have to be taken.

(i)     The question of providing for bail hostels for persons who, though ordered to be realeased on bail, cannot offer bail, has not been considered in the Report as a part from its financial implications and need for long-term planning, its prospects in the present conditions are rather remote

(ii) Mulla Committee on Jail Reforms:-

Committee on Prison Reforms headed by Justice Anand Narain had submitted a report in which it had made some of the recommendations regarding the undertrial, unconvicted prisoners. Some of the Recommendations are as follows[32]:-

(a)   Lodging of under trials in jail should be reduced to bare minimum and they should be kept separate from the convicted prisoners. Since under trials constitute a sizable portion of prison population, their number can be reduced by speedy trials and liberalization of bail provisions.

(b)  A Board of Visitors should be appointed in every district to visit regularly all police lockups in the district and report the conditions of the undertrials.

(c)   Institutions meant for lodging the undertrial prisoners should be as close to the courts as possible. Undertrial prisoners shall not be taken to the court on foot or roped with each other

(d)  Release of Accused person on personal recognizance should be encourage in certain cases.

(e)   The time spent by the undertrials in the jails should be put to the benefit of both prisoner and the society. They shall be made to work and to be paid on the basis of work done.

(iii)  Amnesty International Recommendations:-

Amnesty International in its report “A Study of Pre Detention Trial in India”, had made some of the Suggestions[33]. They are:-

(a)   Standardize the remuneration paid to legal aid lawyers across India, and ensure that lawyers are paid competitive salaries in a timely manner.

(b)  Set up a computerized database and tracking system for prisoners in all prisons, which will regularly alert prison authorities on undertrials eligible for release which will be  maintained and updated at the state-level.

(c)   Appoint more legal aid lawyers according the the needs of the state.

(d)  Strengthen the monitoring of legal aid lawyers’ effectiveness to ensure accountability and quality representation.

(e)   Ensure that legal aid lawyers at the state, district and taluk levels are required to submit regular reports on the status of their cases, and hold lawyers failing to do so accountable.

(f)   Ensure that legal aid lawyers are paid on a monthly basis.

(g)  Undertake regular awareness programs in prisons to ensure that all undertrials are informed about their legal rights, including access to legal aid, procedural safeguards and bail.

Other Recommendations and Conclusions:-

I believe that some of my recommendations will also contribute to mitigate the adversities and problems, which are being faced by the undertrials. They are:-

(a)     At present NHRC is responsible to deal with the cases of torture in custody but the NCRB should also be included to deal with this cases so as to gather the statistical information and date more precisely.

(b)  In order to uphold the justice the court has to adapt to the speedy trails where the under trail prisoners can get quick access to the justice, in which ad hoc courts shall be establishes and Special Public Prosecutors shall be appointed. The registrar of courts shall be bestowed with the duty to oversee the list of cases where the undertrials are being held in prisons for a long time.

(c)   The officials who deal with prison administration at ground level comes from the minimal educational backgrounds which brings in the necessity of providing adequate training. Besides the work pressure channelizes the workforce to use inappropriate means of treating the prisoners. So, there has to be given adequate training and the knowledge of law which governs the prison administration.

(d)  The cases which are compoundable in nature and the offence which are not grievous in nature should be allowed for the plea bargaining and the duty lies with the Jailer and the court.

(e)   There should be prisoner unions which are capable for availing their rights.

(f)   There should be real time governance through implementation of the state of art technology.

The Conditions of the undertrials are so pathetic in India. Though, this problem is not unique to India, but it must focus on finding the solutions to the problems of undertrials. With the effective implementation of the above recommendations from the committees, commissions and some of my suggestions, I believe we can reduce the problems of the undertrials.

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Once a film has been made, it will go through different stages, such as the pre – production, the production process, the post-production stage and the distribution process. At the distribution point, which is the main concern here, producers sell the “theatrical rights” of their films to all Indian distributors or third parties for the promotion and distribution of films to the public. .[2] The person who does the distribution is called the distributor. The film distributor is accountable for the commercialization of the film. The distributor may set a film’s release date and the process by which a film is to be shown or made available for viewing; for example, either theatrically or for home streaming directly to the public (DVD, video-on-demand, download, TV programs via television syndication, etc.).  A distributor can do so directly if the distributor owns theaters or distribution networks, or through theatrical exhibitors and other sub-distributors, a distributor can do so directly. A limited distributor can either deal with certain items, such as DVDs or Blue rays, or may operate in a given country or market. A limited distributor can either deal with certain items, such as DVDs or Blue rays, or may operate in a given country or market.[3] The Production Houses gives its film for various reasons rather than licensing it to the third parties. Some of the reasons are: – First, it will permit the studios to maintain control over their film libraries, rather than risk losing control, particularly in the easily pirated digital format. Second, distribution costs will be relatively low (other than advertising, which the studios already know how to do); it will not require an extensive staff of employees, such as is required to service theatrical or video distribution.[4]

However, there are so many issues being faced by the production houses like Film & Broadcasting Solutions and distributors while transacting between them. Sometimes, Distribution rights are exploited. When the agreements for distribution rights are signed and contracted for, issues relating to the collection of total revenue and the extent of distributor’s rights often come into picture. Sometimes, distributors are not given their due share in the profits and sometimes distributors stay the release of the project causing damage to the production-houses. Moreover, Distributors were being marginalized as many producers are releasing films directly. Besides, the producers are directly dealing with major Multiplex companies for distribution deals. Thus the key change that took place in cinema was that the production units became corporate companies, multiple production units are venturing into the field of film distribution.  It will therefore increase the popular share of interest among them and the perceptible amalgamation of production and distribution undertakings.[5]

The industry consists of individuals involved in the distribution of prints and films. Executors, producers and distributors can make a film financially profitable only after they have worked with each other. The ‘exclusivity clause’ in the distribution contracts plays a key role in determining film rights in the commercial market. Issues relating to professional marketing, distribution of materials, holding of exhibitions or celebrations are common in relation to distribution rights.[6]  In the recent judgment of Moserbaer India Ltd. v. Movie Land[7], the court discussed the significance of possession of copyright with distributors in cinematograph films. It observed that, “In order to avoid long delays and maintain the flow of revenue through a project’s profit in market, arbitration provides a great opportunity to settle the dispute as soon and as amicably as possible. Arbitration assists the Indian filmmaker in protecting their rights in distribution processes and protects them from incurring major losses in the valuable market if the project loses its audience.”

With the venturing of the film producers into distribution as well and the advent of the multiplexes, the single-screen movie hall owners and small distributors are losing out. Their concerns have led to forming anti-competitive agreements among themselves in order to avert the businesses of the multiplexes. Further, the question of abuse of dominant position in the film industry has extended to the Competition Commission’s doorsteps a number of times.[8]

In the case of FICCI-Multiplex Association of India Vs United Producers/Distributors[9], the FMAI filed a case before the Competition Commission of India against UPDF & Others, in which FMAI claimed that UPDF demanded an absurdly flat rate sharing ratio of 50 per cent for all weeks and all types of films. It was also alleged that there was an anti-competitive agreement between producers / distributors, including those who are not members of UPDF. The Competition Commission established the allegation and, in the case, imposed a penalty of one lakh on each of the opposite parties.

Moreover, the Internet platform has destroyed the marketing strategy of the elite production and distribution units.  A significant number of people have access to the Internet and are searching for online content that is inexpensive and conveniently available from the comfort of their home. Online platforms and the OTT platforms have become on demand today as they deliver quality content with a cheaper price tag. With just a click, the latest movies and music can be downloaded easily over the internet. Although the internet has broadened the media audience but also disrupted the market, the contrary elite producers and distributors do not generate sufficient revenue from their work, and this is becoming a matter of concern to them, as the internet has reduced the cost of distribution to a large extent, and digital films can be moved from one country to another for a meager amount.[10]

Conclusion:-

Distribution and commissioning are the bedrocks of the film industry without which, no matter how big stars the film casts, a film can’t succeed. Distribution is marketing to produce heavy profits and to recover the money that was invested when making it. However, in the contemporary age, the concept of earning revenue through distribution channels is quite changing as on-demand online platforms are gnawing away the cost of distribution. People bend towards the online platform because with just one button, it gives fast and comfortable access. Though these platforms are good for the independent and marginal filmmakers as they hardly get the elite distributor or distribution channels but to the contrary it is a pain for the channels of distribution. In fact, Corporatization is the latest trend in the movie industry that affects the distribution sector as well. Hence, the existing laws need to be amended so as to include OTT Platforms in the regulating list.  Besides this, the Competition laws had to be given full effect and the Competition Commission of India’s jurisdiction has to acknowledged.

The industry consists of individuals involved in the distribution of prints and films. Executors, producers and distributors can make a film financially profitable only after they have worked with each other. The ‘exclusivity clause’ in the distribution contracts plays a key role in determining film rights in the commercial market. Issues relating to professional marketing, distribution of materials, holding of exhibitions or celebrations are common in relation to distribution rights.

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