Art and Indian Copyright Law: A Statutory Reading

A look at how the Indian Copyright Act, 1957, as amended in 2012, interacts with art (other than films and sound recordings), and, in particular, with Indian art. The first part of this text comprises a feminist and post-colonial reading of the Indian copyright statute while later parts focus on interpreting the provisions of the statute in relation to art.

6 July 2013

The Banning of (Published) Content under the Customs Act

Despite the fact that the words censorship and banning are often used entirely interchangeably in public discourse, censorship and banning are not the same thing: censorship occurs prior to the publication of content and could potentially lead to certain content being banned.

However, not all bans of content involve pre-publication censorship and a ban — in fact, the only readily available example of an industry in which content which is routinely ‘censored’ or ‘certified’ (depending on one’s point of view) in India is in the film industry.

Quite apart from pre-publication bans, industries may face having their content banned after it has been published under the Customs Act or the Code of Criminal Procedure. And, even in such cases, to use the word ‘ban’ may involve stretching the meaning of the word when it comes to the Customs Act.

In a nutshell, this is what the Customs Act says:
    ‘Prohibited goods’, as per Section 2(33) of the Customs Act are ‘any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported have been complied with’. 
    The Central Government may issue a notification prohibiting the import or export of goods (including books) under Section 11 of the Customs, if it is satisfied that it is necessary to do so; some of the purposes for which goods (containing content or otherwise) may be prohibited are listed in Section 11(2) of the Act which reads as follows:
11(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely—
(a) the maintenance of the security of India;
(b) the maintenance of public order and standards of decency or morality;
(c) the prevention of smuggling;
(d) the prevention of shortage of goods of any description;
(e) the conservation of foreign exchange and the safeguarding of balance of payments; (f) the prevention of injury to the economy of the country by the uncontrolled import or export of gold or silver;
(g) the prevention of surplus of any agricultural product or the product of fisheries;
(h) the maintenance of standards for the classification, grading or marketing of goods in international trade;
(i) the establishment of any industry;
(j) the prevention of serious injury to domestic production of goods of any description;
(k) the protection of human, animal or plant life or health;
(l) the protection of national treasures of artistic, historic or archaeological value;
(m) the conservation of exhaustible natural resources;
(n) the protection of patents, trade marks and copyrights;
(o) the prevention of deceptive practices;
(p) the carrying on of foreign trade in any goods by the State, or by a Corporation owned or controlled by the State to the exclusion, complete or partial, of citizens of India ;
(q) the fulfilment of obligations under the Charter of the United Nations for the maintenance of international peace and security;
(r) the implementation of any treaty, agreement or convention with any country;
(s) the compliance of imported goods with any laws which are applicable to similar goods produced or manufactured in India;
(t) the prevention of dissemination of documents containing any matter which is likely to prejudicially affect friendly relations with any foreign State or is derogatory to national prestige;
(u) the prevention of the contravention of any law for the time being in force; and
(v) any other purpose conducive to the interests of the general public.
    Given that there exists what could be considered to be a ‘residuary clause ’ in Section 11(2)(v) of the Customs Act, the Section is extremely broad in its scope although there are safeguards: notifications of prohibition issued under Section 11 must be laid before Parliament as per the provisions of Section 159 of the Act. Further, not all import/export prohibitions under Section 11 are absolute — prohibitions may also be partial, being subject to conditions which must be fulfilled before or after clearance. (Sections 47 and 51 of the Customs Act provide for the clearance of goods for home consumption and for export respectively.) 
    The failure to comply with a prohibition could result in the goods in question being confiscated: Under Sections 111(d) and 113(d) of the Customs Act, in cases of actual or attempted import or export (respectively) contrary to any prohibition imposed by or under the Customs Act or any other law for the time being in force, the relevant goods may be confiscated (although it may also be possible to pay a fine in lieu of confiscation in certain cases as per Section 125 of the Act). 
    Further, Sections 112 and 114 of the Customs Act specify offences relating to the improper import and export of goods, respectively, and provide the penalty therefor. In essence, the offences contemplated by these Sections are the doing of acts which would render the goods in question liable to confiscation, and (in the case of improper import), intentionally acquiring possession of or dealing with the impugned goods in any manner. 
    A person who commits an offence under Section 112 of the Customs Act (relating to improper import) is liable to a penalty not exceeding the value of the goods (in relation to which the offence has been committed) or five thousand rupees, whichever is the greater. On the other hand, a person who commits an offence under Section 114 of the Customs Act (relating to improper export) is liable to a penalty not exceeding three times the value of the goods as declared by the exporter or the value as determined under the Customs Act, whichever is the greater. 
    That said, under Section 135 the offence of evading a prohibition (or duty) above a certain threshold potentially makes a person liable to a fine and imprisonment (which would generally be between one and seven years although the term may be lower for adequate reasons). Further, as per the provisions of Section 104 of the Customs Act, an customs officer with requisite empowerment general or special order of the Commissioner of Customs may arrest any person in India or within the Indian customs waters whom he has reason to be believe has committed an offence under Section 135 of the Act.
As such, the Customs Act does not ban books or other goods themselves. It 'merely' contains mechanisms through which the import and export of certain goods may be banned. In consequence (considering books as an example): technically, if a book is ‘banned’ under the provisions of the Customs Act alone, it is not entirely inconceivable that an Indian edition of the same banned book could (depending on the facts and circumstances of the individual case) be published in India.

Also see: The Banning of Content under the CrPC

(This post is by Nandita Saikia and was first published at Indian Copyright.)

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