Saturday, 12 September 2015


The largest democracy in the world, India @ Bharath, a dream of a patriot by name Mahatma, is glitters like thousands of twinkling stars, in its fight against corruption ultimately bulldozing the huge masses of corrupt materials from the Indian soil to Indian parliament on 22nd August, 2008.  This is the magic of Indian politics. Much is heard and said about corruption -  of this the more is said by the politicians and most is heard by the urban and rural Indian folks. Indian judiciary is mourning always with its so called strong verdicts with its most effective and sharper words in the vocabulary. But still corruption is spreading like HIV virus.
Corruption is termed as a plague, which is not only contagious but if not controlled spreads like fire in a jungle. Its virus is compared with HIV leading to AIDS, being incurable. It has also been termed as royal thievery. The socio-political system exposed to such a dreaded communicable disease is likely to crumble under its own weight. Corruption is opposed to democracy and social order, being not only anti-people, but aimed and targeted against them. It affects the economy and destroys the cultural heritage. Unless nipped in the bud at the earliest, it is likely to cause turbulence- shaking of the socio-economic-political system in an otherwise healthy, wealthy, effective and vibrating society [1].
There is a close relationship between organized crime and corruption. In many cases where organized crime cannot achieve its objectives through the use or threat of violence, corruption may be a very effective alternative. But, unlike other forms of crime (such as drug trafficking, theft, fraud, and so on) corruption is never an end in itself: it is a means to an end - wealth, power, influence, favors or control.
          The view on what constitutes corruption depends to a significant extent on the cultural, ethical and religious environment in which it exists.
The absence or weakness of leadership in key positions capable of inspiring and influencing conduct mitigating corruption; the weakness of religious and ethical guidance in this area; the absence of severe punitive measures for corrupt behavior; the absence of an environment conducive to anti-corrupt behavior; the state of society: corruption in a bureaucracy tends to reflect the values of the society to which it belongs; the lack of education; poverty; and radical change: whenever a value system is undergoing a radical change, corruption frequently emerges as a transitional malaise [2].
Mr. Vijay Rama Rao, former Director of Central Biureau of Investigation (India) warned that ‘Organized Mafias’ had infiltrated the police departments and even controlled governments in the west and we not far from such a situation. The Central Bureau of Investigation (CBI) in India says that cases of white-collar crimes rise upto 600 percent with in 30 years [3].
          A new household survey released today by Transparency International (TI) reports high levels of corruption in public institutions in South Asia. Of the seven major public institutions, the police emerge as the most corrupt in all five countries surveyed. The judiciary was identified as the second most corrupt area in all countries except Pakistan, where land administration and the tax authorities were identified as the second and third most corrupt areas respectively. Land administration figures prominently in the list of the most corrupt sectors in four out of the five countries.
          The latest report by TI, entitled Corruption in South Asia – Insights & Benchmarks from Citizen Feedback Surveys in Five Countries, identifies high levels of corruption encountered by citizens attempting to access seven basic public services. In India, Pakistan and Sri Lanka, 100% of respondents that interacted with the police during the past year reported encountering corruption. In Bangladesh, this figure was 84% and in Nepal, 48%. In their experiences with the judiciary, nearly all Indian (100%), Sri Lankan (100%), and Pakistani (96%) households polled reported paying bribes. Judicial corruption was also significant in Bangladesh (75% of users) and Nepal (42 % of users).
          After the police and judiciary, land administration was identified as the next most corrupt sector across the region, according to the experiences of South Asian households. In Pakistan, 100% of respondents with experience with the land administration authorities reported corruption and in Sri Lanka this figure was 98%. Land administration was somewhat cleaner in Bangladesh (73% of users reported corruption), India (47% of users) and Nepal (17% of users).
          The survey, conducted in Bangladesh, India, Nepal, Pakistan and Sri Lanka between November 2001 and May 2002, was carried out on households, both urban and rural, in each country, ranging from 2,278 households in Sri Lanka to 5,157 in India. In Pakistan, 3,000 households were surveyed, while 3,030 were surveyed in Bangladesh and 3,060 in Nepal. Commissioned by TI's national chapters, the surveys all used the same methodology about service delivery and corruption in seven public services: health care, education, power, land administration, taxation, police, and the judiciary [4].

          A murder may be committed in the heat of movement upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to that community [5].
China has punished 67,505 government officials for corruption in less than four years since 2003. The Supreme People's Procuratorate has signed 83 Anti-graft memorandums with 75 law enforcement departments in the world. According to the procuratorate's statistics, more than 17,505 corrupt officials were prosecuted and punished in the first eight months of 2006 [6].
“A civilization begins to decline when society becomes corrupt; a civilization falls, when society becomes impervious to corruption”[7]. The fundamental nature of a corrupt police force anywhere in the world is the character of “Greed breed Greed”.

          Historical survey of records, projects that in development process, many code had come into existence and were replaced due to need of the times. “Veda” was the authoritative text, which first recognized immoral conduct of people as “sins” or “crimes” and prescribed “paryachitha” and penal systems to erdicate the same. Later on, Hammurabi framed the criminal Code in 2100 BC in which “Crime” was recognized as a punishable factor and people were threatened by fear of punishment by God or God-kings to conform to the approved pattern of conduct. In 200 BC another Code was prepared by “Manu” to deal with criminal offences. He gave clear picture of law and observed it to be grounded on immemmorial custom, embraced as the root of all piety, good usage’s which were long established. During the reign of Chandragupta in 300 AD, the famous Code “Arthasasthra” of Koutilya was came into existance [8].  This Code carried principles of Manu and other Rishies and provided a complete criminal administration in India. In all these Codes, crime was considered as “sin” which attracts fear of “God”. By 700 AD Muslims and 1600 AD English people started to invade India. Muslim Code introduced srtict discipline and punishments and English introduced a new legal system and the Indian Penal Code in 1860, Criminal Procedure Code in 1898 and Indian Evidence Act in 1872 came in to existence. According to Voltaire, Rousseau, Bentham and Beccaria, economic factors are the important cause of criminality. Crime is a reaction against economic and unequal distribution of wealth on society. The theory of White-collar crime was introduced in criminology in December 1939, in the presidential address before the American Sociological Society by Edwin H. Sutherland. He said, “White – Collar crime is committed by the person of respectability and social status in the course of there occupation”[9]. After passing over about 80 years since the drafting of the Indian Penal Code, the new type of white-collar crime was discovered and for that reason the Indian Penal Code was equipped to tackle the white-collar crimes effectively. The people of business world are probably showing more criminality than the people of slum. Unlike the “crime of slums”, the ‘crime of business’ are indirect, devious, anonymous and impersonal[10].
Before an analysis in the situation of corruption and bribery in the third world countries, an essential element of white collar crime this paper trying to explain the basic characters of corruption and bribery.
Bribery as used in Encyclopedia Americana is said to be voluntary receiving or giving anything of value in payment for an official act done or to be done and that it is not confined to judicial officers or other persons concerned in the administration of justice, but it extends to all officers concerned with the administration of the Government executive, legislative and judicial and under the approximate circumstance military.
Bribery as used in the Coke’s institute is the receiving or offering any undue reward or to any person whatsoever in public office, inorder to influence his behavior in office and undue him to act contrary to the known rules of honesty and integrity [11].
As understood in common law, the thing offered or accepted as bribe need not be money, but may be property, services or anything else of value. Now the offence is defined by statute, so that a report to common law is not often necessary except for general principles. Theorists of corruption, for example, categorize bribes ingenuine sense: as being transactional and variance bribes [12]. And in the most extreme manifestations, a bribe, which amounts to out right, purchase not just the service of the servants [13].
The Supreme of Court of India observed that Bribe is not charity but shrewd business. Bribe given not only to get things unlawfully done but also to get lawful things done promptly [14].
It was held by the Supreme Court of India the word  “Corrupt” does not necessarily include an element of bribe taking, it implies something more, as denoting conduct, which is morally unsound, and debated [15]. Corruption there for is used in much wider sense than bribery. The distinction between the two is that Corruption has wider a connotation and included bribery. When bribery is restricted to conforming of benefit by one upon another in cash or in kind to procure an illegal or dishonest action in favour of the giver, corruption in its wide sweep takes in the use of all kinds of corrupt practices.
The term “Bribery” and “Corruption” can best be represented in the diagram of two concentric circles. Corruption represents the larger circle with which is the next circle representing “Bribery” [16].
The sight of a man or woman bleeding to death or in a state of terminal shock, writhing in agony does not move of those who work in hospitals. Only the seed money can, to an extent make them human is the tendency. As a means of accelerating sluggish meandering circulation of a file within a department, this might be all very well; but ‘speed money’, belying the name, actually has the effect of a brake on administration allowing it down even further. Delay will deliberately be caused in order to invite payment of bribe to accelerate it again[17]. Bribery directly hit on human rights when the prey was forced to either try the police machinery to move or try to become idle or to get done the backgrounds of a police case in his favor. In the case of motor accidents, suicide, scene mahazer, body inquest, postmortem, certificate showing cause of death etc are direct sensitive points of corruption/bribe people Vs police.
Each instances of bribe and the adverse consequences due to non-greasing of police resulted in human rights violations. The result of this inhuman conduct of police result loses of faith in administration of law enforcement and people became cynical and demoralized. They lost faith in the system. They distrust the police. If this be the police the human are suffering from environmental problems due to the money power of industrialists multi-national as well as national.
          The common character shown by police men is the sham show of serving the public interest, but under the cover of it, sinister personal interest is fulfilled. Police, then judiciary most corrupt public institutions in South Asia, reveals TI survey
          "Across South Asia, public spending on basic services such as drinking water, education, health and law enforcement represents a significant allocation of scarce resources," said Gopakumar Krishnan, Asia Programme Manager at the TI-Secretariat. "The survey results show that even when public services are meant to be freely available, bribes and delays keep many from receiving them, and it is most often the poorest in society that suffer most."
          "It is well documented that petty corruption is rife in South Asia and these countries score low on governance indicators, but this is the first comparative study examining what the users of key public services actually experience," said Gopakumar Krishnan. He continued: "Direct feedback from the public is a powerful tool to ensure public accountability. The lack of effective complaints mechanisms in these countries prevents most feedback from reaching the government. This regional survey establishes benchmarks that may help individual governments and departments to track changes over time and measure progress made."
          The survey shows that bribes are a heavy financial burden on South Asian households, both due to the high frequency of bribes and to the large sums paid. More than half of the users of public hospitals in Bangladesh, for example, reported that they had t paid a bribe to access a service, with bribes averaging BDT 1,847 (US$33). In Pakistan, 92% of households that had experience with public education reported having to pay bribes; the average amount paid was PKR 4,811 (US$86). These figures are startling in a region where 45% of the total population of 1.4 billion live in poverty. When asked about the source of corruption, most respondents answered that bribes were extorted by public servants. Middle and lower level civil servants were identified as the key facilitators of corruption in all sectors probed.
          "The TI Corruption in South Asia survey strongly supports the case for empowering regulatory bodies, such as the office of the Ombudsman," said Gopakumar Krishnan, "to oversee the activities of public agencies, which across the region are the sole providers of many basic necessities. The findings also indicate that where the law is silent on standards of service, agencies simply provide poorer services." He added: "TI has identified that increasing measures to improve transparency, from citizens' charters to the practice of publicly posting official fees, has proven effective in holding public officials to account and reducing corruption."
          It is quiet interesting to say about corruption at this point of time in India as the Indian democracy is preparing itself a strong fight against corruption. Let that be in any way. Law makers are law breakers in the case of corruption all over world. And India is not an exception. hurricane of Fighting corruption is the key issue in India in now a days.
          For fighting corruption public education and prevention are equally important. A number of factors explain this growing emphasis on fighting corruption. Countries with high levels of corruption, like India, have found themselves less able to attract investment and aid in a competitive global market. At the same time, business within the country has faced ever stiffer competition with the globalization of trade and capital markets, and has become less willing to tolerate the expense and risk associated with corruption.
          A preliminary analysis of the literature shows that corruption in India and elsewhere is recognized as a complex phenomenon, as the consequence of more deep seated problems of policy distortion, institutional incentives and governance. It thus cannot be addressed by simple legal acts proscribing corruption. The reason is that, particularly in India, the judiciary, legal enforcement institutions, police and such other legal bodies cannot be relied upon, as the rule of law is often fragile, and thus can be turned in their favour by
corrupt interests.
          To combat systemic corruption in India is directly related to the extent of participation of the civil society. The underlying idea is that
development is not the product of set of blueprints given by the political leadership independently of the civil society but is often a joint output of the civil society itself. Viewed in this perspective, anti-corruption strategies are not simply policies that can be planned in advance and isolation, but often a set of subtler insights that can be developed only in conjunction with citizen participation. Combating corruption is, therefore, not just a matter of making laws and creating
institutions, but rather it is deeply rooted in the activities of the civil society itself.
          The biggest cause of corruption in today’s India is undoubtedly the political leadership at the helm of affairs in the country. From this fountainhead of corruption flow various streams of corrupt practices which plague the political, economic and social activities in the country. The post-independence political leadership has risen from the grassroots level in the form of regional, caste, linguistic and other protest movements. They have transformed the nature of politics and administration. Amoral politics, self-aggrandizement, disregard of the
Constitutional norms in the pursuit of power, political survival at any cost are their rules of the game. They interfere with the administration of justice and have bent bureaucracy to do their bidding.
          The Railway Corruption Enquiry Committee, chaired by J.B. Kriplani, corruption was a failure of citizen ship. Whether it was the bribe, ticket less travel or theft, all these were acts which undermined the state. The report ruthlessly listed the categories of people who refused to pay and their attitude towards it. Politicians and senior bureaucrats were among those who claimed exemption from paying for travel on account of their status. The report therefore went on to
insist that “apart from administrative reforms, and punitive measures, there is a great need for higher officials to play the leaders in a reform movement”. The strange part of the story of the early years of corruption in India is that the protection that Jawaharlal Nehru extended to his corrupt colleagues did not benefit him any way. Wealth could not tempt him in any form, and he had a typical aristocrats disdain for money. However, by condoning high-visibility cases of corruption and shielding the guilty, Nehru legitimized graft in high places, and this undermined the rule of law and the moral basis of the polity (Noorani 1973).

          The administrative procedures and practices which are cumbersome are another major cause of corruption in India. India’s legal and administrative system was designed in the middle of the nineteenth century to serve the interests of colonial administration. The Indian Penal Code, the main instrument for controlling crime and administering criminal justice, was enacted in 1860. The organization and functions of the police are governed by the Indian Police Act of
1861. The Indian Evidence Act came into force in 1872. The Indian Telegraph Act, which regulates the control of air-waves and licensing of broadcasting facilities, was passed in 1855-even before the invention of the wireless.
          The English men designed Indian legal system based on distrust of the ‘natives’ and a firm belief in their inability to govern themselves. It has in built provisions for delays, prolonged litigation and evasion. Its provisions are ideally suited to the promotion of corruption at all levels, as graft provides the quickest immunity from delays and punitive action.
          Another factor to the growth of corruption in India is that the cases relating to corruption are often handled in a casual and clumsy manner.
          The judicial system is so expensive, dilatory, and inefficient that it takes years and years for corruption cases to be decided.
10-20 years (Vittal 1999). Justice delayed is justice denied in most cases of corruption.
          Public administration is a sub-system of the political system which itself is a part of the larger whole called the social system. Therefore the societal culture or societal environment has powerful impact on public administration.
          Acceptance in the social psyche and behavior. Social evils like bribery, nepotism and favoritism have come to be accepted in the society. People often approach someone known to them for favors which they know are not legally due to them. Jumping the traffic lights or a queue or getting the benefits not due to one has become part of social ethos.
          A person who has acquired wealth through unfair means is often accorded the same, if not higher, status in Indian society as that given to persons of excellence.
          A recent study by the Peruvian economist Paolo Mauro (1995 and 1998) found that a corrupt country is likely to face aggregate investment levels of approximately 5 percentage points less, than a relatively uncorrupt country. The evidence from India is particularly stark. If corruption levels in India were reduced to that in the Scandinavian countries, investments rates could increase annually
by some 12 percent and the GDP growth rate by almost 1.5 percent each year (Gandhi 1997)..
          The impact of corruption on the quality of public infrastructure is all too clearly visible in the towns and cities of India. The Public Works Department and the State Electricity Boards which are largely responsible for the maintenance of roads and management of power distribution respectively, are among the most corrupt government departments in India. In the capital city of Delhi itself the transmission and distribution losses in the power sector are estimated to be over
50% out of which almost 30% is attributed to theft which is done with the connivance of the electricity board employees.
          Corruption also reduces the government’s resources and hence its capacity for investment, since tax revenues are depleted by tax evasion (Jain 1998, Shahid 1991).
          India’s Chief Vigilance Commissioner recently observed that,” India’s economy today is a standing monument to the corruption and inefficiency of four specific departments, namely, Customs, Central Excise, Income Tax and Enforcement Directorate. It is the evasion of taxes and the failure of these departments to check illegal activities that has crystallised into the large percentage of black money in the economy. The quantum of black money has been estimated from Rs.40,000 crores to Rs.100,000 crores. Whole industries today depend on black money. The film industry, a substantial part of the construction industry and a large number of small industries are run on the basis of black money " (Vittal 1999).
          The damaging effects of corruption on investment and economic growth are widely recognised. But corruption also has adverse effects on human development. First, corruption reduces the availability and increases the cost of basic social services. Access to core social services can be easily restricted with the intention to make corrupt gains. For instance, a government doctor may deliberately store away free medicines until he is bribed, a police inspector may deny a First Information Report to a victim until he is paid a kickback, and a principal may refuse to admit a child in a school until he is paid under-the counter.
          Politically, corruption increases injustice and disregard for rule of law. Basic human rights and freedoms come under threat, as key judicial decisions are based on the extent of corrupt bribes given to court officials rather than on the innocence or guilt of the parties concerned.
          Police investigations and arrests may be based on political victimization or personal vendettas rather than on solid legal grounds. Commenting on the socio-political consequences of corruption the
Supreme Court of India observed in the judgement cited above that corruption in a civilised society was a disease like cancer. If not detected in time it was sure to turn the polity malignant leading to “disastrous consequences”. The apex court said a socio-political system exposed to such a dreaded communicable disease
was likely to crumble under its own weight.
          For Combating Corruption the colonial rulers had established the Delhi Special Police Establishment (DSPE) to control corruption which surged during the Second World War. The Prevention of Corruption Act was passed in 1947 an Administrative Vigilance Division (AVD) created in the home ministry in 1955. Then, owing
to mounting public criticism, a Committee on Prevention of Corruption was appointed in 1962 under K. Santhanam to examine this issue in depth and recommend remedial measures. As a result of its recommendations, the Central Vigilance Commission (CVC), independent of ministerial control was set up in 1964. Another important measure during the early decades was the creation of
the Central Bureau of Investigation (CBI) in 1963, which incorporated DSPE as the Investigation and Anti-Corruption Division (Gill 1998). The Prevention of Corruption Act 1947 was amended and 1988 Act was came into force on the 9th September 1988, the date on which the Act has received the assent of the President.
          Another essential component of anti-corruption strategy is the strict enforcement of the principle of accountability at all levels. Government decisions are taken at various levels of government in which discretionary power may be involved. There is general lack of accountability in administration.
          The judiciary has a key role in ensuring that political and administrative power is used only in accordance with law and every one is held accountable for wrong doing or misuse of authority. Recent decisions given by the judiciary have created a hope for corrective action.
          As explained earlier administrative delay is one of the major causes of corruption. Therefore to reduce or control corruption it is necessary to eliminate such delays. For that it is essential that office procedures should be simplified and levels of hierarchy reduced.
          Public interest litigation which has served the purpose of dragging corrupt officials to the courts.[18]
          Thus all the above said may not curb corruption if the public is not conscious of the need for a non-corrupt India.

Life sentences: How long is enough?

As Mohammad Afzal Guru, charged in the December 13, 2001, attack on the Indian Parliament, awaits a final decision on his clemency petition pending before the President and Indian civil society deliberates on the abolition of death penalty, no attention is paid to the human rights implications of the alternative to the death penalty: life imprisonment.
In countries where death penalty has been abolished, life imprisonment is the maximum punishment for committing the most horrific of crimes. In most jurisdictions, however, life imprisonment does not necessarily imply a whole life in prison and lifers may be released after serving a substantial portion of their sentence, based on several mitigating factors. However, in a country like India, where death penalty is still in use, it's assumed that being a lesser punishment, life imprisonment is less retributive and more reformative in nature.
International norms
When it comes to life imprisonment, there are no set, fully developed international standards. But, international human rights law allows the imposition of life sentences only in the most serious crimes and prohibits the use of Life Imprisonment without Parole (LWOP).
The International Covenant on Civil and Political Rights (ICCPR), which came into force in 1976 and was signed and ratified by 161 countries, including India, says that the "penitentiary system shall comprise treatment of prisoners, the essential aim of which shall be their reformation and social rehabilitation". As the non-government organisation Penal Reform International noted in 2007, the purpose of reformative punishment will not be served if a convict lives his or her whole life in detention without being released on parole.
General Comment 21 of the Human Rights Committee, which is a United Nations (UN) Committee that oversees the implementation of ICCPR obligations in State parties, notes, "Treating all persons deprived of their liberty with humanity and with respect for their dignity is a fundamental and universally applicable rule. Consequently, the application of this rule, as a minimum, cannot be dependent on the material resources available in the State party. This rule must be applied without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."
Article 37 of the United Nations Convention on the Rights of the Child (CRC) prohibits the use of capital punishment and LWOP for offenders below the age of 18 years. The Rome Statute of the International Criminal Court provides that the maximum sentence of life imprisonment imposed on criminals convicted of grave crimes such as war crimes, crimes against humanity and genocide should be reviewed after 25 years. Although India is party to the CRC, she is opposed to the idea of an International Criminal Court and thus, is not party to the Rome Statute.
The United Nations Standard Minimum Rules for the Treatment of Prisoners lays down good practice norms for the treatment of prisoners, which are to be adhered to by prison authorities and institutions.
The Indian situation
India continues to use the death penalty, supposedly in the 'rarest of rare' cases. Amnesty International (AI) reports that nine offences under the Indian Penal Code (IPC) and 14 other local or special laws provide for the death penalty in India. Although official figures indicate that 273 persons had been given the death sentence as of 31 December 2005, AI states that 140 persons were sentenced to death in 2006 and 2007, along with 44 others whose mercy petitions are being considered by the President of India (AI, 2008). India has also voted against a UN General Assembly resolution calling for "a moratorium on executions with a view to abolishing the death penalty", stating that it goes against the country's statutory law.
Given India's unwillingness to abolish the death penalty, it's interesting to study the country's position in relation to life sentences. Life imprisonment, without the possibility of release, leads to indefinite detention in prisons, and is known to cause physical, emotional and psychological distress. Prisoners could suffer from ill-health, social isolation, loss of personal responsibility and identity crisis, and may even be driven to suicide. A 2007 report on Indian prisons by the Bureau of Police Research and Development, Ministry of Home Affairs, reveals that most Indian prisons are overcrowded, with inmates living in unsanitary and unhygienic conditions in small cells, without proper light, ventilation or privacy. The report notes that Indian prisons house a total of 358,368 inmates though their sanctioned strength is 246,497.
Added to this is the ill-treatment of prisoners by prison authorities, often sanctioned by outdated legislation such as the Prisons Act, 1894, and state prison manuals. For example, the 1894 Act allows the imposition of corporal punishment (whipping) or solitary confinement for a limited period by prison authorities for offences such as "feigning illness" or "contumaciously refusing to work". The lack of medical facilities and understaffing in prisons further aggravate the misery of prisoners in India. In such a situation, life imprisonment without release or parole is unhealthy and undesirable.
In Gopal Vinayak Godse Vs Union of India ([1961] 3 SCR 440), the Supreme Court of India held that life imprisonment "must prima facie be treated as ... imprisonment for the whole of the remaining period of the convicted person's natural life". More recently, in Mohd Munna Vs Union of India and Others ([2005] 7 SCC 417), the apex court held that "imprisonment for life is not equivalent to imprisonment for fourteen years or for twenty years". However, the Indian Constitution and criminal laws provide for grant of pardon and commutation of sentences by the President of India, governors and the executive.
Articles 72 and 161 of the Indian Constitution give the President of India and governors of states the power to grant pardon, suspension, remission or commutation of sentences in certain cases. Sections 54 and 55 of the Indian Penal Code (1PC) confer on the appropriate government - Central or state governments - the power to commute sentence of death or life imprisonment. Section 432 of the Code of Criminal Procedure (CrPC) also gives the power to remit or suspend sentences, with or without conditions, to the appropriate government. Section 433 of the CrPC empowers the appropriate government to commute a life sentence for a term up to 14 years or a fine, without the consent of the person so convicted.
However, certain restrictions have been placed on the power of remission under Section 433A of the CrPC. According to this section, a person serving a life sentence for an offence for which death sentence is also a punishment or where a death sentence has been commuted to a life sentence cannot be released before serving at least 14 years of imprisonment.
The power of remission or commutation was justified in a plethora of court decisions, on the ground that "public welfare will be better served by inflicting less than what the judgment fixed". While the sentencing power lies with the judiciary, the power to commute such sentences is largely executive in nature. In Kehar Singh Vs Union of India ([1989] 1 SCC 204), the Supreme Court clarified that the Constitutional power of grant of pardon or the executive power of remission does not conflict with the judicial power of passing a judgment. The effect of the executive power of remission is to "remove the stigma of guilt from the accused or to remit the sentence imposed on him".
The executive power to suspend, remit or commute life sentences may be subject to judicial review on limited grounds. In the case of Maru Ram Vs Union of India and Others ([1981] 1 SCR 1196), the court observed that the power of remission is a Constitutional power that should not be curtailed but the exercise of this power should not "be left to the fancy, frolic or frown of the Government ... but must embrace reason, relevance and reformation". In other words, the court stated that the exercise of power under Articles 72 and 161 of the Constitution should be guided by Section 433A of the CrPC and while remission schemes serve as an incentive for reformation of lifers and should be encouraged, the executive authorities should not abuse such powers of remission.
In Swaran Singh Vs State of Uttar Pradesh ([1998] 4 SCC 405), the Supreme Court observed that if the Constitutional power of pardon was exercised "arbitrarily, malafide or in absolute disregard of finer canons of constitutionalism", it could not be approved. In Maru Ram, the court was in favour of framing guidelines for the exercise of the Constitutional power of pardon and remission. However, in subsequent cases, the court refused to lay down specific guidelines as each case vastly differs from the other. Hence, a case-to-case basis approach was recommended.
In the Kehar Singh case, the court observed that the President need not provide any reasons to the affected party as to why he or she was accepting or rejecting a pardon plea. However, this does not automatically imply that the President or the executive authority should pass a pardon or remission order without a legitimate basis.
Even if an unreasonable order is passed, it can be challenged before a court of law within the limited scope of judicial review in remission/pardon cases. Besides, a pardon or remission order passed on patently illegitimate and arbitrary grounds may be revoked under the law (Section 432(3) of the CrPC). In the case of Epuru Sudhakar and Others Vs State of Andhra Pradesh and Others ([2006] 8 SCC 161), Justice Kapadia observed that prerogative powers such as the Constitutional power of pardon were no longer ipso facto immune from judicial review. He stated, "Every prerogative has to be subject to the Rule of Law. That rule cannot be compromised on the ground of political expediency."
A look at the jail manuals and rules in different Indian states show that lifers are not entitled to automatic release after serving 20 years of the life sentence. However, they do earn the right to have their case for remission put forth before the state government by the prison authorities.
In the case of Epuru Sudhakar, Soli Sorabjee, appointed as amicus curiae, submitted before the court that the power of pardon and remission was usually exercised on several legitimate grounds, including the interest of society and the convict, the period of imprisonment undergone and the time left to be served, the seriousness of the offence, the age and health of convict, prison records, post-conviction conduct, remorse and atonement.
Despite the proclamation by the Indian Supreme Court that life imprisonment is for life, the power of pardon or sentence remission may be exercised to ensure early release. As Justice Laurie Ackermann of the South African Constitutional Court observed in the case of S Vs Dodo (CCT/1/01), "To attempt to justify any period of penal incarceration, let alone imprisonment for life ... without inquiring into the proportionality between the offence and the period of imprisonment, is to ignore, if not to deny, that which lies at the very heart of dignity. Human beings are not commodities to which a price can be attached; they are creatures with inherent and infinite worth; they ought to be treated as ends in themselves, never merely as means to an end."

Views on the death penalty among college students in India

While research abounds on attitudes toward capital punishment in the United States, such work has been lacking in non-western nations — particularly in India, the world's largest democracy. Data recently collected have revealed variance in levels of support for the death penalty among Indian college students: 44 percent express some degree of opposition, 13 percent are uncertain, and 43 percent express some degree of support. Reasons for support or opposition also exhibited variance. According to a multivariate analysis, statistically significant reasons for support included retribution, instrumentalist goals, and incapacitation; while significant reasons for opposition included morality and the belief that deterrence could be achieved by imposing sentences of life without parole.


“ ….. belongs to the blurred area of criminal justice system and largely hinges on the hunch of the bench, otherwise called judicial discretion. The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden of public treasury all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process.”[1]
It is precisely this much needed jurisprudence of bail which is discussed in the course of this paper in the light of the personal liberty of a person and the value of that personal liberty under our constitutional system. This study attempts to explore the varied dimension of the concept of bail- as a right that must be respected by the courts and as a matter of concession left to the judicial discretion of the courts.
The right to bail is inextricably linked to the knowledge and awareness of the accused of his right to obtain release on bail; this is further linked to Article 22(1) of the Constitution which provides that no person who is arrested shall be denied the right to consult and to be defended by legal practitioner of his/her choice. It is however remains an issue to be examined whether this provision carries with it the right to be provided the services of a legal practitioner at state cost, particularly in the light of Article 39A of the Constitution which directs the State to provide free legal aid- but is this an obligation on the part of State, enforceable in a court of law.
Where does the right to bail fit into the constitutional scheme in the context of criminal jurisprudence contained in Article 20, 21 and 22 of the Constitution? How may these human rights of accused as conferred by the Constitution be balanced against the growing crime rate and the need to protect society from criminals? Thus the law of bails
“….. has to be dovetail two conflicting demands, namely, on one hand, the requirements of society for being shielded form the hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence viz., the presumption of innocence of an accused till he is found guilty.”[2]
Thus, another fundamental issue to be focused on, in the course of this paper, is the recognized trend in the criminal justice system from the presumption of innocence to presumption of guilt. The truth behind this statement and its consequent impact on pretrial procedures such as attainment of bail is also sought to be studied in the light of the relevant Cr.P.C. provisions, where necessary. Finally the consequences of the incorporation of section 167 of Cr.P.C. with respect to bail and its nexus with necessary concern over the temporary loss of liberty of an individual as dictated by Article 21 of the Constitution, shall be attempted to be analyzed.


Before actually determining the place of bail within human rights framework as conferred by the Constitution, it is important to examine the object and meaning of bail, such that an analysis of these fundamental objects and change therein may reveal a change. The object detention of an accused person is primarily to secure her/his appearance at the time of trial and is available to receive sentence, in case found guilty. If his/her presence at the trial could be reasonably ensured other than by his arrest or detention, it would be unjust and unfair to deprive the accused of his liberty during pendency of criminal proceedings.
Thus it is important to note the relevant provisions enshrined in the Universal Declaration of Human Rights:-
Article 9- No one shall be subjected to arbitrary arrest, detention or exile.
Article 10- Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
Article 11(1)- Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
There are thus several reasons which have been enumerated as to why bail ought to be allowed to prevent pre-trial detention.[3]

There is no definition of bail in the Criminal Procedure Code, although the terms ‘bailable offence’ and ‘non-bailable offence’ have been defined in section 2(a) Cr.P.C. Bail has been defined in the law lexicon as security for the appearance of the accused person on giving which he is released pending trial or investigation. What is contemplated by bail is to “procure the release of a person from legal custody, by undertaking that he/she shall appear at the time and place designated and submit him/herself to the jurisdiction and judgement of the court.”[4]
Thus having discussed the object and meaning of the concept of bail, it becomes important to fit this concept within  the criminal justice jurisprudence as conferred by the constitution of India.


The right to bail is concommittant of the accusatorial system which favours a bail system that ordinarily enables a person to stay out of jail until a trial has found him/her guilty. In India, bail or release on personal recognizance is available as a right in bailable offences not punishable with death or life imprisonment and only to women and children in non-bailable offences punishable with death or life imprisonment. The right of police to oppose bail, the absence of legal aid for the poor and the right to speedy reduce to vanishing point the classification of offences into bailable and non-bailable and make the prolonged incarceration of the poor inevitable during the pendency of investigation by the police and trial by a court.

The fact that undertrials formed 80 percent of Bihar’s prison population, their period of imprisonment ranging from a dew months to ten years; some cases wherein the period of imprisonment of the undertrials exceeded the period of imprisonment prescribed for the offences they were charged with- these appalling outrages were brought before the Supreme Court in Hussainara Khatoon v. State of Bihar[5]. Justice Bhagwati found that these unfortunate undertrials languished in prisons not because they were guilty but because they were too poor to afford a bail. Following Maneka Gandhi v. Union of India[6], he read into fair procedure envisaged by Article 21 the right of speedy trial and sublimated the bail process to the problems of the destitute. He thus ordered the release of persons whose period of imprisonment had exceeded the period of imprisonment for their offences. He brought into focus the failure of the magistrates to respect section 167(2) of Cr.P.C. which entitles an undertrial to be released from prison on expiry of 60 days or 90 days as the case may be.  

In Mantoo Majumdar v. State of Bihar[7] the Apex Court once again upheld the undertrials right to personal liberty and ordered the release of the petitioners on their own bond and without sureties as they had spent six years awaiting their trial, in prison. The court deplored the delay in police investigation and the mechanical operation of the remand process by the magistrates insensitive to the personal liberty of the undertrials, remanded by them to prison. The Court deplored the delay in police investigation and the mechanical operation of the remand process by the magistrates insensitive to the personal liberty of undertrials, and the magistrate failure to monitor the detention of the undertrials remanded by them to prison.[8]

In Kadra Pahadiya[9] the Supreme Court observed that the Hussainara judgment had not brought about any improvement and reiterated that-
… Hussainara Khatoon it was held that the right to speedy trial is implicit, in the rights enshrined in Article 21 and the Court, at the instance of an accused, who was denied this right, is empowered to give instructions to the State Governments and to other appropriate authorities to secure this right of the accused.

In order to make this right meaningful in Bihar, the Supreme Court proceeded to pass orders to ensure institutional improvement in order to make speedy trial a meaningful reality. The Court therefore indicated the remedy in the event of denial of the accuser’s right to personal liberty enshrined in Article 21 namely that the Supreme Court may be approached in order to enforce the right and the Supreme Court in pursuance of its constitutional power may direct the State Government and other appropriate authorities accordingly. Thus order requesting High Court to furnish the Supreme Court with the number of Sessions Courts in Bihar, the norms of disposals fixed by the High Court; the steps, if any, taken to ensure compliance with those norms and considering the number of pending sessions cases, the adequacy of number of session court in Bihar. In regard to prisoners awaiting commitment, Court might suo motu consider granting of bail in accordance with the above mentioned principle laid down in Hussainara.

The travails of illegal detainees languishing in prisons, who were uniformed, or too poor to avail of, their right bail under section 167 Cr.P.C. was further brought to light in letters written to justice Bhagwati by the Hazaribagh Free Legal Aid Committee in Veena Sethi v. State of Bihar[10] and Sant Bir v. State of Bihar[11]. The court recognized the inequitable operation of the law and condemned it- “The rule of law does not exist merely for those who have the means to fight for their rights and very often for perpetuation of status quo… but it exist also for the poor and the downtrodden… and it is solemn duty of the court to protect and uphold the basic human rights of the weaker section of the society. Thus having discussed various hardships of pre-trial detention caused, due to unaffordability of bail and unawareness of their right to bail, to undertrials and as such violation of their right to personal liberty and speedy trial under Article 21 as well as the obligation of the court to ensure such right. It becomes imperative to discuss the right to bail and its nexus to the right of free legal aid to ensure the former under the Constitution- in order to sensitize the rule of law of bail to the demands of the majority of poor and to make human rights of the weaker sections a reality.”


Article 21 of the Constitution is said to enshrine the most important human rights in criminal jurisprudence. The Supreme  Court had for almost 27 years after the enactment of the Constitution taken the view that this Article merely embodied a facet of the Diceyian concept of the rule of law that no one can deprived of his life and personal liberty by the executive action unsupported by law. If there was a law which provided some sort of procedure, it was enough to deprive a person of his life and personal liberty. However Maneka Gandhi v. Union of India[12] marked a watershed in the history of constitutional law and Article 21 assumed a new dimension wherein the Supreme Court for the first time took the view that Article 21 affords protection also against legislation (and not just executive action) and no law can deprive a person of his/her life or personal liberty unless it prescribes a procedure which is reasonable, fair and just it would be for the court to determine whether the procedure is reasonable, fair and just ; if not, it would be struck down as invalid.
In Hussainara Khatoon’s case the Apex Court, inter alia, observed that the undertrials languishing in jail were in such a position presumably because no action application for bail had been made on their behalf either because they were not aware of their right to obtain release on bail or on account of their poverty they were unable to furnish bail. The present law of bail thus operates on what has been described as a property oriented approach. Thus the need for a comprehensive and dynamic legal service programme was left in order to revitalize the bail system and make it equitably responsive to needs of poor prisoners and not just the rich.
In the Indian Constitution there is no specifically enumerated constitutional right to legal aid for an accused person. Article 22(1) does provide that no person who is arrested shall be denied the right to consult and to be defended by  legal practitioner of his choice, but according to the interpretation placed on this provision by the Supreme Court in Janardhan’s case[13] this provision does not carry with it the right to be provided the services of legal practitioners at state cost. Also Article 39-A introduced in 1976 enacts a mandate that the state shall provide free legal service by suitable legislations or schemes or any other way, to ensure that opportunities for justice are not denied to any citizen by reason of economic or other disabilities – this however remains a Directive Principle of State Policy which while laying down an obligation on the State does not lay down an obligation enforceable in Court of law and does not confer a constitutional right on the accused to secure free legal assistance.
However the Supreme Court filled up this constitutional gap through creative judicial interpretation of Article 21 following Maneka Gandhi’s case. The Supreme Court held in M.H. Hoskot v. State of Maharashtra[14] and Hussainara Khatoon’s case that a procedure which does not make legal services available to an accused person who is too poor to afford a lawyer and who would, therefore go through the trial without legal assistance cannot be regarded as reasonable, fair and just. It is essential ingredient of reasonable, fair and just procedure guaranteed under Article 21 that a prisoner who is to seek his liberation through the court process should have legal services made available to him.

The right to free legal assistance is an essential element of any reasonable, fair and just procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21.
Thus the Supreme Court spelt out the right to legal aid in criminal proceeding within the language of Article 21 and held that this is….

“a constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation and the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided of course the accused person does not object to the provision of such lawyer.”                            


With the incorporation of section 167(2) Cr.P.C. the investigating agency is required to complete the job of investigation and file the charge-sheet within the time limit of either 60 or 90 days as the case may be. In case the above is not completed within the definite period a most valuable right accrues to the accused. The accused is, in that eventuality, entitled to be released on bail.
It would be seen that the whole object of providing for a prescribed time limit under section 167(2) Cr.P.C. to the investigation agency to complete the investigation was that the accused should receive expeditions treatments at the hands of the criminal justice system, as it is implicit in Article 21 that every accused has right to an expeditions disposable of his case. Section 167 has been criticized[15] with respect to the fact that the prescribed time limit relates only to the investigation aspect and does not touch other segments of the criminal-justice-system, thus the object (of speedy trial), behind section 167 stands frustrated. Moreover section 167(2) is seen to paradoxically serve as a way of grant of liberty to some dangerous criminals who would otherwise not be able to get it under our system (for example they may not be otherwise entitled to bail by virtue of nature and gravity of offence.) thus the utility of section 167 Cr.P.C. may be thus questioned in the light of above, as to whether it really serves the purpose enshrined in Article 21 of the Constitution, particularly in the light of viewing the criminal justice system as whole not confined solely to investigation- it therefore follows that to achieve the right to speedy trial (as enshrined in section 163(2) Cr.P.C.) it is important to overhaul the system in its entirety and not parts of the system in isolation.


This paper has attempted to explore the various dimensions of the RIGHT TO BAIL within the constitutional framework. It is of prime significance to note that the very concept of bail arises from a presumption, of the accusatorial system, of ‘innocent till proven guilty.’ As such an individual’s personal liberty which is a fundamental right under Article 21 of the Constitution, cannot be compromised until he/she is convicted and thus proven guilty. Thus he/she is allowed to furnish security (in the form of bail) to secure the accused’s presence for trial while enabling him/her to retain his/her personal liberty.
However, as was brought to light, in famous Hussainara Khatoon case, personal liberty as operating within the domain of the criminal justice system remains the cherished prerogative of the rich. While those who can ill afford legal counsel to inform them to their right to bail. (i.e. in non-bailable offences- section 2(a) Cr.P.C.) and consequently are unable to pay the amount, are relegated to languish in prisons, often for terms longer than the period of  punishment prescribed for the offence they are charged with. Thus in order to extend the fundamental right of personal liberty under Article 21 of the Constitution, to even the economically weaker sections of the population (who form a majority of the prison population), the right to free legal aid must be made a constitutional right. Thus the decision in the same case, also in M. H. Hoskot v. State of Maharashtra making legal aid a constitutional mandate under Article 21 is welcome in paving the way towards upholding human rights in criminal jurisprudence.
However in order to ensure one’s right to a speedy trial-and thus consequently minimum infringement on the accused’s right to personal liberty an overhaul of the criminal justice system in its entirely is called for. A mere emphasis on investigation machinery by prescribing a time limit as per section 167(2) Cr.P.C. will not suffice to attain the desired object. Moreover it is interesting to note that on lapse of the prescribed period bail as of right accrues to the accused, even if he is a accused of a grave, heinous non-bailable offence and in other circumstances would have definitely been refused to bail. Thus the backlash of section 167(2) as well as its possible effectiveness ought to be considered in the light of its object of ensuring a right to speedy trial under Article 21 of the Constitution.
Thus the law of bails must continue to allow for sufficient discretion, in all cases, to prevent a miscarriage of justice and to give way to the humanization of criminal justice system and to sensitise the same to the needs of those who must otherwise be condemned to languish in prisons for no more fault other than their inability to pay for legal counsel to advise them on bail matters or to furnish the bail amount itself.          

[1] Gudikanti Narasimhulu V. Public Prosecutor, AIR 1978 SC 430.
[2] Superintendent. And Remembrancer of Legal Affairs v. Amiya Kumar Roy Choudhry (1974).
[3] P. V. Ramakrishna, “Law of Bails”, Seventh Edn., Lexis Nexis, New Delhi.
[4] Black’s Law Dictionary, 4th Edn., page 177.
[5] AIR 1979 SC 1360
[6] AIR 1978 SC 597
[7] AIR 1980 SC 846
[8] J. N. Pandey, Constitutional Law of India, Thirty Second Edn., Central Law Agency, Allahabad.
[9] AIR 1982 SC 1167
[10] (1982) 2 SCC 583.
[11] (1982) 3 SCC 131.
[12] AIR 1978 SC 597
[13] Janardhan Reddy v. State of Hyderabad, AIR 1951 SC 227.
[14] AIR 1978 SC 1548
[15] Jagdeep Dhankhar, “The Right to Bail and Delay in investigation”

Encounter Killings

WHAT is done without any punishment, can be repeated without fear.” Impunity without doubt is a grave problem affecting the state and leads to more and more human rights violations. The encounter specialists who have been in news recently, amplify this. Once hailed as heroes, they become the fall guys, with the blood of the innocent on their hands. Is society really safe with extrajudicial methods, especially while dealing with terrorism?

The spectre of terrorism has raised many questions and dilemmas and one of it is how to counter it. Is counter violence an appropriate, effective and most realistic way of dealing with force while setting aside the legal safeguards in a democratic state? The anti-terrorism debate hinges on finding the right balance between human rights protection and effective security measures. Ensuring respect for human rights while countering terrorism remains a formidable challenge. On the other hand, the epidemic of fake encounters has continued to plague the states like Jammu and Kashmir, Punjab and now Gujarat, Maharashtra, Chhattisgarh and Andhra Pradesh. When law enforcers become lawbreakers, it does not augur well for the state. When the law responds with violence, it will be a blood-thirsty folly. The spiral of violence spawned a parallel economy and has been exploited by the state and non-state actors — be it in Punjab, Jammu and Kashmir, Gujarat or even Mumbai. The lid gets blown at times. Kauser Bi in Gujarat or Padroo in Jammu and Kashmir mirror our insensitive system.
Recently the Punjab government has ordered inquiry into some fake encounter killings carried out earlier. We don’t know who they were. Many a time innocents have been killed and branded as terrorists by the state. Their cases, however, rest quietly buried in the grave.

The trend of encounter killings to curb terrorism started in Punjab in the 1980s and early 1990s. Counter terrorism was thought to be the most effective strategy of dealing with the situation. Punjab is quoted as an example of the success of this strategy in ending terrorism in the state. The means-end ethical issues were not thought to be of any relevance and value. The operational efficiency does, however, have its own cost about which there has been little debate. If questions were raised, it was said that it would sap the police morale. Without inquiry,  human rights violations during that phase have been brushed under the carpet. This has affected the professional ethos of the police department. Superficial changes like community policing schemes have been ineffective in restoring people’s confidence in the system.

A well established system of incentives and rewards that was brought in the police organisation while fighting militancy reinforced some malpractices. For every terrorist killed, cash awards and promotions were given to officers. Such incentives give legitimacy to the culture of killings. Many officers got the benefit and though terrorism was curbed in Punjab, the system failed to punish the perpetrators of custodial violence.

The active pursuit by Jaswant Singh Khalra, human rights activist of mass killings in Amritsar, Majitha, and Tarn Taran districts from 1984 to 1994, where there were 2097 illegal cremations,  exposed the blatant human rights violations. The NHRC awarded compensation of Rs 2.5 lakh each to the next of kin of 194 people who had been found in custody or deemed custody of police before their death and cremation and also a compensation of Rs 1.75 lakh each to the next kin of 1051 to the other victims in the mass cremation case. Is it a safeguard of the victims’ rights?

The compensation was awarded as police had failed to safeguard those in its custody. But here though the victims are to be given compensation, the victims’ rights have been ignored. Sadly, the professional ethos of the police has been compromised because human rights violations and illegal detentions have been brushed aside. There is little remorse on the part of the police officials and former militants and there has been no public apology either by the powers that be or the police. The courts or the Human Rights Commission have taken care of the victims’ right to know and the collective right to know. However, the families of the deceased victims do not know who killed them and in what circumstances. To prevent violations, the archives related to the violations need to be preserved. The state may prefer a collective amnesia to serve a better purpose as any truth finding may open up a Pandora’s box of horrors.There can be no just and lasting reconciliation without an effective response to the need for justice.There is need to set up Truth and Reconciliation Commissions in Jammu and Kashmir and Punjab (like the one in South Africa) to heal the wounds of the people. The state should investigate the violations and prosecute the perpetrators who are found guilty. Those who felt that they had been victims of violations — whether the government or others — could come forward and be heard by this commission. The perpetrators of violations could also give testimony and request amnesty from prosecution. Three panels accomplished the work — the Human Rights Violations Committee, the Reparation and Rehabilitation Committee and the Amnesty Committee. Truth commissions, also set up in East Timor and Sierra Leone, acted like symbolic instruments towards restorative justice. This commission will bring lasting peace by acknowledging the hurt of people and allowing the perpetrators an opportunity to seek forgiveness.


The world today has entered into an era of instant communication. A person sitting in the remotest corner of India can enjoy live performance taking place in the far away places like America or Africa, thanks to electronic (parallel) media. Telephone and fax have made it possible to communicate oral or written messages across the globe within seconds. The computer-aided communication technologies such as E-Mail and Internet have added altogether a new dimension to today’s communication process by making it more speedy, informative and economical. The ways through which different types of information can be communicated have also undergone a sea change. These days a film song can be put in or accessed by a single device alongwith a textual message and even a painting. While all these have made communication among people more effective and efficient both in terms of time and cost, they pose the greatest threat to the copyright world. Modern communication channels, being intensively relying on a variety of copyrighted products, are liable to be pirated in large scale, if adequate precautions are not exercised.
Copyright is the right given by law to the creators of literary, dramatic, musical and a variety of other works of mind. It ordinarily means the creator alone has the right to make copies of his or her works or alternatively, prevents all others from making such copies. The basic idea behind such protection is the premise that innovations require incentives. Copyright recognises this need and gives it a legal sanction. Moreover, commercial exploitation of copyright yields income to the creators and thus making pecuniary rewards to individual’s creativity.
The origin of copyright had a link with the invention of printing press by Gutenberg in the fifteenth century. With the easy multiplying facility made possible by the printing press, there was voluminous increase in the printing and distribution of books which ,in turn, led to adoption of unfair practices such as unauthorised printing by competing printers.

Though piracy was born by the end of the fifteenth century, it was only in 1710 the first law on copyright in the modern sense of the term came into existence in England. The law which was known as `Queen Anne’s Statute’ provided authors with the right to reprint their books for a certain number of years. The 1710 law was confined to the rights of authors of books only, and more particularly the right to reprint. It did not include other creative works such as paintings, drawings etc. which also by that time became targets of piracy, in addition to other aspects relating to books (e.g. translation, dramatisation etc.) To overcome this problem a new enactment namely `Engravers Act’ came into existence in 1735. There followed a few more enactments in the subsequent periods and ultimately Copyright Act 1911 saw the light of the day.

Developments in this regard also took place in many other advanced countries, notably among them being France, Germany and the USA. In France a copyright decree was adopted in 1791 which sanctioned the performing right and another decree of 1793 established author’s exclusive right of reproduction. In Germany author’s rights were recognised by a Saxon Order dated Feb 27, 1686. In America the first federal law on copyright, the Copyright Law 1790 provided protection to books, maps and charts.

Copyright and National Economy
Besides protecting creative potential of the society, copyright contributes to a nation on economic-front as well . The copyright based industries together generate huge employment in the country of its origin. The national exchequer benefit from the contribution made by these industries in the form of excise duty, sales tax, income tax etc. from the production and sale of copyrighted products. Given the natural demand for such products from across the national boundaries exports help consolidate country’s foreign exchange reserves position.
While there is no two views on the economic importance of copyright, it is not easy to assess it properly. The first and the foremost difficulty arises in defining the copyright based industries. In simplistic term copyright industries include all those activities which directly or indirectly depend on copyrighted materials for their commercial success. But the range of activities that come under the subject of copyright is so wide that the task of defining the copyright industry becomes difficult. These industries are drawn from a large number of different industry classifications and they are also not readily identified as an industry in the usual sense. This makes the issue more complicated.
However, there is a general consensus on the activities that come under copyright industries. It include printing and publishing of books, newspapers, journals & other periodicals, production and sale of audio products (Cassettes/CDs), production & distribution of cinemas, videos and cables, creation of computer softwares & databases and their distribution, radio and television broadcasting, advertising, photography, dramatic and musical performances etc. The list is not exhaustive. But the present study is confined to only the main segments of the copyright industry and covers cinematographic works (including video), sound recordings, literary works (mainly book publishing), computer softwares and performances.
The economic importance of copyright had been amply illustrated by a number of studies undertaken in the past in various parts of the world, notably in USA, Germany, Australia, U.K., Sweden and some other developed countries. For example, a study conducted in 1993 for the U.S.A. showed that the core copyright industries comprising motion picture, computer software, music & recording and book publishing industries accounted for $ 238.6 billion in value added to the US economy, which approximately accounted for 3.47 % of the country’s Gross Domestic Product (GDP). These industries grew at more than twice the annual growth rate of US economy as a whole between 1991 and 1993 (5.6% as against 2.7% for the economy as a whole). The total copyright industries taken together (i.e. core industries plus those distribute copyrighted products and other products those depend on wholly or principally on copyrighted materials) employed more than 5.7 million workers (about 4.8% of total U.S. workforce) and accounted for approximately 5.69% US GDP in 1993.
In India, no estimates are available to ascertain contribution of copyright based industries to the national economy. However, given the rich cultural background and huge population of the country, it is believed that copyright industries collectively contribute enormously to the economy. India is the largest audio cassette market in the world in terms of number of units sold. In 1996, India sold more than 350 million audio cassettes & CDs and the industry’s sales turnover stood at Rs.105,605 million. India’s software industry is showing a phenomenal growth. During 1996-97, the software industry in India with its size of Rs.63,100 million achieved a remarkable growth rate of above 50% over its previous year’s performance. During the same period India could export softwares worth Rs.39,000 million and the software industry provided employment to more than 160,000 people.
The publishing industry is also quite large in the country. About 11,000 publishers are engaged in producing more than 57,000 new titles every year, of which about 22% is published in English language. In 1995-96 India exported Rs.1120 million worth of books and other printed material. A sizeable portion of this (about 29.1 percent) went to advanced countries in the Europe. The print media in India comprising daily newspapers and numerous other periodicals e.g. weekly, monthly and annual journals/magazines is huge. In 1997, it had a total circulation of 10,57,08,191 and the turnover from print media is estimated to be as high as Rs. 8000 crores (table 2.1). The other core copyright industry namely film and video, also occupies an important place in the country. Film is considered as one of the best means of entertainment for the common people. India annually produces more than 600 films in major languages such as Hindi, Telugu, Tamil, Malayalam & Kannada. The demand for cable & satellite TVs are also on the rise. It is estimated that during 1996 cable connection in the country had reached about 20 million houses covering approximately 10 percent of the total households in the country.
Copyright and International Relations
The scope of copyright is not confined merely to the arena of creativity and its economic exploitation in the country of its origin. It has emerged as a major factor in international relations. In the recent past, the trade relations between the US and China deteriorated considerably over the issue of protection of Intellectual Property Rights (IPR). The US maintained that China is the worst violator of IPRs and the loss to the US economy is more than 2 billion dollars annually because of violation of its IPRs in China’s territory. The dispute took a serious turn when US trade groups wanted trade relations with China to be stopped completely. It was only after the intervention of the heads of both the countries any further deterioration was averted.
The importance of IPRs in general and copyright in particular in the relationships among the countries can be comprehended clearly from the above example. The Sino -US piracy dispute, though a recent one, is not the only case. With the advancement in technologies copyrighted items started flowing freely across the boundaries and piracy assumed an international dimension. Since the nineteenth century the countries felt the necessity of having copyright protection in foreign soil as well. As a result, negotiations were held between countries which in some cases resulted in the conclusion of multilateral treaties.
The first multilateral agreement on copyright is the Berne Convention which was concluded in 1886 and was meant for providing protection to literary and artistic works. A country joining the Convention has to provide copyright protection to literary and artistic works of member countries in its own territory and also entitled for enjoying reciprocal protection from others. The Berne Convention was revised seven times in 1896 (at Paris), 1908 (at Berlin), 1928 (at Rome), 1948 (at Brussels) , 1967 (at Stockholm) and 1971 (at Paris) and finally in 1978. Among these, the 1971 revision (the Paris Act) is of particular importance to the developing countries as it provided special concessions to these countries in making translations and reproduction of foreign literary works for educational purposes. Ninety countries are at present member of the Berne Convention.
The post Second World War era saw the emergence of the need for protecting copyright on an universal basis. Till then countries in the North America were not party to the Berne Convention and copyright protection in these countries were governed by various national and regional agreements. In August, 1952 the Intergovernmental Copyright Conference was convened in Geneva which led to the adoption of another historical copyright convention, namely the Universal Copyright Convention (UCC). The UCC is not a substitute for the Berne Convention. Rather it tried to establish the link between the countries on the Bern Union and those in North America. India is a member of both the Berne Convention and the UCC.
In recent years, the issue of IPRs figured prominently in the Uruguay Round of General Agreement on Tariffs and Trade (GATT). It is for the first time the GATT went beyond its usual mandate to include the IPRs. The Trade Related Aspects of Intellectual Property Rights (TRIPS) is set out in Annex 1C of the Final Uruguay Round Text. The text comprises 73 articles grouped in seven different parts. The standards for specific IPRs such as copyright and neighbouring rights are discussed in part II.

Copyright in India
The copyright in India has travelled a long way since it was introduced during the British rule. The first law on copyright was enacted in the year 1847 by the then Governor General of India. When Copyright Act 1911 came into existence in England, it became automatically applicable to India, being India an integral part of British Raj. This act was in force in the country until after independence when a new copyright act (the Act of 1957) came into effect in 1958. Thereafter the Act has undergone many amendments. The latest in the series is the 1994 Amendment, which came into force in May 1995.
The Indian Copyright Act confers copyright on (i) original literary, dramatic, musical and artistic works, (ii) cinematographic films and (iii) sound recordings. The word `original’ means that it should not be copied from other works or alternatively it should be the outcome of independent efforts. The Act empowers copyright holder(s) to do or authorise doing a number of activities. The important among these are:
to reproduce the wk in material form

to publish the work

to perform the work in public or communicate it to the public

to produce, reproduce, perform or publish any translation of the work

to make any cinematographic film or a record in respect of the work

to make any adaptation of the work

to do, in relation to a translation or an adaptation of the work, any of the acts specified to the work in sub clauses to (a) to (f).

The above mentioned rights are `exclusive’ in the sense that the creator (or rightholder) alone has the right to enjoy these to the exclusion of others. The author by virtue of his creation becomes the `owner’ of the copyright in the work. However, there can be exceptions to this as in the following two cases :-
The creator may be employed by some one and having been employed to create a work, the rights belong to the employer – not the creator(s), and

The creator may transfer his copyright by a document in writing to another person. This is known as assignment.

The grant of copyright is a limited monopoly. It is limited in the `scope’ of the rights granted and in terms of `time’. In India, copyright on a literary work is provided for the lifetime of the author plus sixty years after his death. In case of joint authorship, the sixty years period is calculated from the beginning of the calendar year following the year in which the last (surviving) author dies. Copyright with respect to photographs, cinematographic works and sound recordings spans for 60 years of its first publication. In order to strike a balance between the society’s need for access to knowledge and the need to rewarding creators, limited uses of copyright protected works are permitted without authors consent. These are called `fair use’ of copyright. Section 52 of Indian Copyright Act permits certain activities which do not amount to infringement. Important in this `exception list’ are reproduction of literary, dramatic, musical or artistic works for educational purposes, e.g. research, review etc., and reporting in newspapers, magazines and periodicals etc.
The Copyright Act of India provides rightholders a dual legal machinery for enforcing their rights. The enforcement is possible through (1) the Copyright Board and (2) the courts. Legal remedies include imprisonment and/or monetary fines – depending upon the gravity of the crime. Sometimes remedies also include seizure, forfeiture and destruction of infringing copies and the plates used for making such copies. The 1984 amendment has made copyright infringement a cognizable non-bailable offence. Under the provisions of the Act any person who knowingly infringes or abets the infringement of copyright is considered as an offender and is punishable with a minimum of six months imprisonment which may extend to three years and a fine between fifty thousand and two lakhs rupees. The 1994 Amendment has incorporated a special penal provision for knowingly using an infringing computer software. The punishment provided for this act is imprisonment for a term of seven days to a maximum of three years and a fine between fifty thousand and two lakh rupees. In case the infringing copy of the computer software is used not for pecuniary gain or in the course of trade or business, the imprisonment can be relaxed and fine can be maximum of fifty thousand rupees.
Beside amending the Copyright Act the Indian Government has taken few more steps in strengthening the enforcement in the country. A Copyright Enforcement Advisory Council has been set up for advising the Government on measures for improving the copyright enforcement. Training programmes and seminars are arranged for police personnel. Necessary legislation was made for bringing video shops, cable operators under regulation. State governments are encouraged to set up IPR cells for exclusively dealing with copyright and other IPR violations. In spite of all these, enforcement of IPR violations, particularly copyright violations has not been strong enough in the country and piracy prevails exits in all types of copyright works notably musical works, video films and softwares.

Copyright Piracy

Copyright piracy is a phenomenon prevalent worldwide. Piracy means unauthorised reproduction, importing or distribution either of the whole or of a substantial part of works protected by copyright. The author of a copyrighted work, being the owner, enjoys certain exclusive rights with respect to his or her works. These include right to reproduce, to publish, to adopt, to translate and to perform in public. The owner can also sell, assign, license or bequeath the copyright to another party if he wishes so. If any person other than the copyright owner or his authorised party undertakes any of the above mentioned activities with respect to a copyrighted product, it amounts to infringement of the copyright. Copyright piracy is thus like any other theft which leads to loss to the owners of the property. Besides economic loss, piracy also adversely affects the creative potential of a society as it denies creative people such as authors and artists their legitimate dues.
There are different ways through which piracy takes place. A computer software is pirated by simply copying it onto another machine not authorised for its use. Book piracy takes place when a book is reproduced by someone other than the real publisher and sold in the market. A performer’s right is violated when a live performance of an artist is recorded or telecasted live without his/her permission. In a cinematographic work piracy generally takes place through unauthorised reproduction of the film in video forms and/or displaying the video through cable networks without taking proper authorisation from the film producer (the right holder). In fact, there are numerous other ways through which piracy of copyrighted works take place. The nature and extent of piracy also vary across the segments of the copyright industry. It is, therefore, necessary to discuss the nature and extent of piracy problems segment wise. Such an attempt is made in the following paragraphs.

Literary Works

Piracy of literary works means illegal reproduction of books and other printed materials and distribution/selling of these for profit. In India, the journals/magazines and other periodicals are not pirated much. Here piracy of literary works generally takes place in three principal ways. : 1) wholesale reprinting of text and trade books 2) unauthorised translations and 3) commercial photocopying of books/ journals. Many a time piracy takes the form of publishing fake books, where authors shown in books are not the real authors.
Book piracy, in India, primarily depends on two factors, namely, the price of the book and its popularity. These two factors positively contribute to piracy. Piracy is generally confined to foreign and good indigenous books. Because these books are demanded in large quantities and are also priced high. The types of books pirated mostly are medical, engineering and other professional books, encyclopaedia and popular fictions. The piracy is also wide spread with respect to books published by National Council of Educational Research & Training (NCERT), National Open School and Board(s) of Secondary Education. These books even if priced low are having large demand.
The pirates first identify books to be pirated and then get the same printed in large numbers through unscrupulous printers. The pirated books are normally sold with other (legitimate) books by usual retailers identified by the pirates. The number of printers/sellers involved in piracy is generally less. The piracy is also seasonal in nature. The entire process of printing through selling get over within a month or two.
Besides the above, piracy in the form of mass photocopying of books is largely prevalent in India, especially in and around educational institutions. Students borrow books from libraries and then get these photocopied from the photocopier kept at the institution where from the books are borrowed. While copyright law permits photocopying of literary works for limited private uses such as research, review or criticism what happens, many a time is that the entire book is photocopied including the cover pages. In the process student community and the photocopy operators gain, but the publishers lose a huge revenue. Unfortunately, the institutions turn a blind eye to this.
Sometimes even some renowned publishers involve themselves in piracy by way of selling books beyond the contract period. This happens when an Indian publisher buys re-print rights from some foreign publishers and keeps on selling books even after the expiry of the period mentioned in the agreement. This is done in the pretext of clearing old stock. Thus an impression is created that books are printed during the contract period but in reality are sold beyond the contract period just to exhaust the old stock.
The other way through which piracy takes place is printing/selling of books meant for review. Many foreign publishers send books to India for review. The pirates somehow get access to such books and make quick prints to sell in Indian market. All these happen much before the authorised Indian distributors get their copies for selling in India. Naturally, the distributors’ sales get affected adversely.
Piracy of literary works leads to loss of revenue to publishers (in terms of less sales), authors (non-payment of royalty) and the national exchequer (non-payment of income tax and other levies payable by publishers/authors). While it is believed that book piracy is high in India, it is very difficult to arrive at an estimate. Only information from secondary sources (e.g. publishers, police records etc.) can be gathered to form a rough idea on piracy. But that would reflect only the tip of the iceberg. In terms of percentage, it is believed that about 20-25 percent of books sold (in number) in the country are pirated. Actual monetary loss due to piracy is anybody’s guess.
Anti piracy drive with respect to books is generally weak in India. The industry associations are not very active in this regard. Whatever action is taken is done by the respective publishers. The enforcement machinaries (such as police) are also not very active in controlling piracy for a variety of reasons. The public awareness is also very poor.
Besides the above, Indian books are also pirated abroad, especially in the neighbouring countries such as Pakistan, Bangladesh etc. India exports books to a large number of countries including developed countries from Europe. During 1995-96 India exported books to the tune of Rs.1120 million. Exports earnings could have been much more in the absence of wide spread piracy of Indian works abroad. Similarly, foreign literary works are pirated in India. Given the low and rapidly declining value of rupee in terms of hard currencies good foreign books (e.g. US books) cost very high in India. As a result majority of the readers individually can not afford to buy these books. In such circumstances, piracy provides the escape route, because a pirated foreign book in India can be as cheap as half the original price or even less. The International Intellectual Property Alliance (IIPA) estimated that in 1995 trade loss due to piracy of US books in India amounted to $ 25 million.

Sound Recordings

The sound recording industry faces three types of piracy. First, there is a simple way by which songs from different legitimate cassettes/CDs (and thus different rightholders) are copied and put in a single cassette/CD. These are then packaged to look different from the original products and sold in the market. Second, there is counterfeiting, when songs are copied in to and packaged to look as close to the original as possible using the same label, logos etc. These products are misleading in the sense that ordinary end users think that they are buying original products. The third form of music piracy is bootlegging, where unauthorised recordings of performance by artists are made and subsequently reproduced and sold in the market. All these happen without the knowledge of the performers, composer or the recording company,
Earlier the music piracy was confined to cassette tapes only. With the advent of CDs in the eighties it was thought that piracy of sound recordings would become things of the past. But in reality CD piracy is the greatest threat to today’s music world. Infact, with CDs piracy has got an international vigour. Fortunately or unfortunately, CD industry is still in it nascent stage in India. At present CD market is just 2 to 3 percent of the overall music market in the country. CDs have not taken off mainly because of high prices. In India CDs are sold on an average price ranging between Rs.150 to Rs.550. Considering price of cassettes, the price differential (between cassettes and CDs) is quite high and prohibitive for ordinary music lovers.
Cassette piracy in India is as old as the cassette industry itself. Govt. policy put music industry in the small scale category and volume of a record company’s cassette production was restricted to 300,000 units per annum. This led to a wide gap in the demand supply front which was ultimately bridged by the pirates. Even if music piracy percentage has declined from a high of 95% in 1985 to about 30% in 1995, India is the world’s sixth largest pirate market in value terms (table 2.2) but third in volume terms (table 2.3). In 1995, more than 128 million pirated cassettes/CDs were sold as against the sale of 325 millions of legitimate audio products. The sale of pirated cassettes/CDs (both in number & value) is also on the rise in the country. However in contrast to many developed countries piracy of CDs is low in India. At present CD piracy is below 10% level.
The popularity of Indian music has gone beyond the national boundaries. There is large demand for Indian music in the neighbouring countries such as Pakistan, West Asia as well as far off countries like USA, Canada and the UK. Indian music is also pirated in some of these foreign countries, the notable among these being Pakistan and the West Asia. Similarly, foreign audio products are also subject to piracy in Indian soil. As per IIPA’s estimate the trade losses due piracy of American audio products alone in India was to the tune of US $ 10 million in 1995.

Cinematographic Works

Copyright in cinematographic works is more complex in nature as there exists a variety of copyrights in a single work and many a times these rights are also overlapping. The first right in a film is the `theatrical right’ i.e. the right to exhibit films in theatres. The producer is the copyright holder. The distributors buy theatrical rights from producers and then make some arrangements with the theatre owners for actual exhibition to the public. The theatrical rights are limited by territory and time. Films are also released in video cassettes. In fact, these days viewing film at home has become more popular than seeing the same at theatres. The producers sell the video rights to another party, who makes video cassettes for sale in the market. These cassettes are meant for `home viewing’ only i.e. one can buy a copy of it for seeing at home with family members and friends. Such cassettes can not be used for showing the film in cables or through satellite channels. Because showing films in cables or satellite channels require acquisition of separate sets of rights namely `cable rights’, and `satellite rights’.
A cable network is generally limited to local areas as it requires receivers (viewers’ TVs) which are to be physically connected through cable wire to the operators. In case of satellite channels, however, there is no such physical limit as transmission takes place through air and received at the users end by dish antenna(s). Interestingly in India satellite transmissions, in most of the cases, reach to endusers through cable networks only.
The cable networks in India work in a two-tier system. At the top there are main operators who transmit their programmes through numerous small local operators on a franchise basis. As mentioned earlier programmes of satellite channels reach the viewers through cable networks. The (main)cable operators do not pay anything to satellite channels for showing latter’s programmes in the network, except for pay channels (e.g. ESPN, Zee Cinema, Movie Club etc). The small cable operators, however, share their incomes with their respective main operators. The revenue for small operators come from the subscription of viewers.
Music is an integral part of any cinematographic work. In India, film sound tracks account for almost 80% of the total music market. Even if film producer has the copyright in the film, the music included in the film is the outcome of efforts undertaken by a separate group of creative people such as the composer, lyricists etc.- each of which is a rightholder of its own right. Generally the producer sells this right to a music company who makes cassettes/CDs of such songs for sale in the market. The incidence of a large number of rights in a single work and the involvement of a variety of right holders make the copyright issue very complicated in cinematographic works.
Piracy of cinematographic works takes two principal forms, namely `video piracy’ and `cable piracy’. However, piracy in one form can spill over and affect the revenues of the other. Video piracy takes place when a film is produced in the form of video cassette without taking proper authorisation from the right holder i.e. producer. Many times producers of films sell video rights to another party (generally after six weeks or more of release in theatres ) who makes video cassettes for selling or lending. The video cassettes kept for sale are meant for home viewing only. Any commercial use of such cassettes like in video parlours or in cable networks amounts to copyright violation. Two types of video piracies are common in India. One, where video right for films has not been sold at all (by the producer) but video cassettes are available in the market for buying or borrowing. And two, when video right is (legally) sold to a party, but cassettes are made and sold by others (pirates) as well.
Cable piracy is unauthorised transmission of films through cable network. As mentioned above, showing a film in a cable network requires acquisition of proper authorisation from the rightholder. But many a time, films , especially the new releases, are shown through cables without such authorisation, which tantamounts to piracy.
Piracy is a rare phenomenon in satellite channels because such channels are organised and generally do not show films without buying proper rights. But there are cases where right of one channel operator is violated by others.

It is very difficult to give even a rough estimate of video piracy in India because information in this regard is scanty and not accessible. But video piracy in both the forms are quite rampant here. Besides this, piracy through video parlours is largely prevalent normally in the rural India or smaller towns. Perhaps more widespread and damaging is the cable piracy. These days almost all new releases are shown in the cable simultaneously with the exhibitions in theatres . As per a resolution adopted by the Film Makers Combine, video release of a film can be made only after six weeks of theatrical release. But cable operators show such films much before the stipulated time period. This is a clear case of cable piracy and its extent is considerably high in country.
All parties involved in the legitimate transaction of films – from the producers to the theatre owners, lose heavily because of widespread video or cable piracy. The Government also loses because pirates’ activities do not bring in any revenue such as entertainment tax at theatres and excise duty and sales tax at the points of legitimate production/selling.

Computer Software

The piracy in computer software simply means copying and distribution of computer programmes without the copyright holders permission. The software industry, generally, consists of creation and distribution of computer programmes. Creation of computer programme is similar to writing a novel or other literary works and it requires intellectual skill and training in software programming. Though a software can be written by individual programmer, most of the major software’s are the outcome of group efforts, where medium to large sized teams spend months or even years to write a complete programme.
Distribution of computer programmes in most of the developed countries occurs through a two-tiered system of wholesalers and dealers, similar to that of many other industries. The software publishers make a substantial amount of their shipments to a small number of distributors in any given country, who maintain well-stocked warehouses and can respond quickly to orders from hundreds or thousands of individual retail dealers or resellers. The dealers market and provide the software products directly to end-users of computers. The end users can be individuals, commercial enterprises, educational institutions and government establishments. Sometimes, software publishers also deal directly with a small number of the largesr dealers or resellers in an individual country. Licensing is a common practice in software industries. The publisher of a software generally authorises its end users through the mechanism of the shrink-wrap license contained in the package.
Like other copyright based industries, the software industry also faces several forms of piracy. In fact, piracy in software is more than in others because it is relatively easy to copy a software in computers especially in PCs and for all practical purposes the pirated version looks and performs in an identical manner as the original. The five principal types of software piracy involve (1) counterfeiters (2) resellers (3) mail order houses (4) bulletin boards and (5) end-user piracy. Counterfeiters are relatively new phenomenon in the software industry and most flagrant software counterfeiters produce disks, documentation and packaging that look very similar to those of the software publisher. Reseller piracy occurs in the software distribution channel, when distributors or dealers either make copies of software onto floppy disks, or the internal storage device or the “hard disk” of computers that they are selling, without authorisation from the software publisher. Mail-order piracy consists of the unauthorised copying of software onto diskettes, CDs, or other media and distribution of such software by post. Bulletin board pirates engage in unauthorised reproduction and distribution of software via telecommunication. Typically, this involves an individual computer user who has installed a number of software programmes on his computer, and who allows other users to connect to his computer through the telephone line via modem and copy the programmes onto discs. The pirate in most cases has copied the programme onto his own computer without authorisation of the copyright holder’s consent is also a copyright violation. End-user piracy takes place when a user copying software onto hard disks of more comptuers than the number authorised by the publisher. This form of piracy perhaps takes place on a wider scale than other forms because end-users often make substantial copies of the softwares possessed by them and then distribute or exchange the same. Though this harms the interests of rightholders, endusers definitely gain out of it because this leads to obvious economic advantages for them.
Identifying a pirated software is not an easy task. This is primarily for two reasons. First, as mentioned earlier there is hardly any difference between an original software and a pirated software, once it is copied onto a hardware. Second, detection of piracy requires access to software or hardware or both, which may not be feasible in many cases. However, there are some ways through which an unauthorised copy of a software can be identified. Many a times publishers supply softwares in packaged form which contain software on diskettes with printed labels giving manufacturer’s name, full product name, version number, trade mark and copyright notices. Besides these, the packages also typically, contain professionally printed documentation, a keyboard template, enduser license and registration cards and other printed materials pursuant to a standard bill of materials that would apply to all packages of that particular product. In such cases, the most simple pirated copies may be spotted easily on “black-disks”, which do not contain manufacture’s label but rather type written, hand-written or crudely printed labels indicating the programmes contained on the diskettes. In case of installed software it is more difficult to identify a pirated copy. Once a computer is searched, the programmes copied onto it can be found and identified. Then users can be asked to produce the proof of original possession (e.g. original packages, documentation, purchase record, license cards etc.) of such programmes. If users fail to do so, there is a prima facie case of infringement. In some cases even test purchases can be made to secure evidence of piracy.
The extent of software piracy and losses due to such piracy cannot be given in exact quantitative terms though it is believed that piracy in this sector is wide spread. In Europe alone the sofware industries lose an estimated $ 6 billion a year. In fact, Europe holds the dubious distinction of accounting for about 50 per cent of world wide losses from software piracy, more than any other region including the number two Asia. According to a study of Software Publishers Association, a US based body, losses due to piracy of personal computer business application softwares nearly equalled revenues earned by the global software industry. In 1996, piracy costed the software industry US $ 11.2 billion, a 16 percent decrease over the estimated losses of Us $ 13.3 billion in 1995. The country-specific data show that in 1996 Vietnam and Indonesia had the highest piracy rate of 99 per cent and 97 percent respectively, followed by China (96%), Russia (91%), Thailand (80%) etc. In India software piracy is costing the IT industry quite dear. According to a survey conducted jointly by Business Software Alliance (BSA) and NASSCOM in May 1996, total losses due to software piracy in India stood at a staggering figure of about Rs. 500 crores (US $ 151.3 million) showing about 60 per cent piracy rate in India.

Piracy of copyrighted products is a problem as old as the copyright itself. Only in recent years it has received prominence, especially in the academic and policy circles. In India, no official estimate is available to indicate the extent of piracy and associated economic loss. But perceptions are that the piracy is a big problem.
The main reasons behind copyright piracy are poor enforcement and lack of awareness on copyright matters. The copyright laws of India are as good as those of many advanced countries in Europe and America, where concern for copyright is at a high level. Punishments prescribed for violators are stringent and comparable to those of many countries in the world (Table 2.4). But laws alone can do little justice unless implemented properly. The enforcement mechanism is weak in the country.
Even police personnel, who can play a major role in combating piracy, are not fully aware of various provisions of the law. There is also lack of adequate number of personnel who can fully devote to copyright crimes alone. The police is more concerned with usual law and order problems and copyright related crimes are attached least priority.
The awareness level among end-users is also very low. While buying a copyrighted product, majority of consumers do not look at copyright notification (e.g. C or P ). As long as price is low (as generally is the case with pirated products) users do not mind buying pirated products even knowingly.
Table 2.2 : Top Ten Pirate Territories (Value)

Country Pirate sales in US $ (million) Pirate % of total sales % of world pirate sales

Russia 363.1 62% 17%
USA 279.4 2% 13%
China 168.0 48% 8%
Italy 145.6 20% 7%
Brazil 118.8 10% 6%
Germany 92.2 3% 4%
Mexico 85.3 22% 4%
India 82.1 23% 4%
Pakistan 62.1 94% 3%
France 58.5 2% 3%
T o t a l 1,455.0 68%

Source: International Federation of Phonographic Industry (IFPI), London
Table 2.3 : Top Ten Pirate Territories (Units)

Country Pirate sales in (millions) Pirate % of country’s total sales % of world pirate sales
Russia 222.3 73% 23%
China 145.0 54% 15%
India 128.4 30% 13%
Pakistan 75.4 94% 8%
Mexico 70.0 54% 7%
Brazil 62.4 45% 7%
USA 26.6 3% 3%
Italy 21.5 33% 2%
Romania 21.5 85% 2%
Turkey 16.4 30% 2%
T o t a l 789.5 83%

Source: Same as Table 2.2
Table 2.4 Summary and Comparison of Criminal Penalties for Copyright Infringement in Selected Countries

Country Fines/Penalty Imprisonment Terms
U.S.A Upto $ 250,000 for a first offence of infringement by an individual done in ” Willfully and for purposes of commercial advantage or private financial gain”.
Upto 5 years
Upto $ 250,000 for a second offence by an individual. Upto 10 years
Upto $ 50,000 for first offence by an organisation. Upto 5 years
Upto $ 500,000 for a second offence by an organisation. Upto 10 years
France 6,000 to 120,000 Francs (about US $ 1070 to US $ 21,428) for a first offence of infringement.
Double the above penalties for second offence.
3 months to 2 years
Poland Unspecified fines for unauthorised dissemination for purposes of economic gain. Upto 2 years in jail
Unspecified fine if the infringer turn the above offence into a regular source of income for a criminal commercial activity and organises or direct such acitivity. Not less than 6 months and not more than 5 years.
Unspecified fine for unauthorised fixation or reproduction activity. Upto 2 years in jail.
(Reported the maximum criminal fine under the penal code is 250 million zloty (about $ 11,075) Upto 3 years in jail.
Hungary Unspecified fine for infringements causing considerable damage. Upto 3 years.
Unspecified fine for infringements causing particularly high pecuniary damage. Upto 5 years.
Greece 1 to 5 million Drachmas (about $ 4,050 to $ 20,485) for infringing acts Atleast 1 year.
2 to 10 million Drachmas (about $ 8,100 to $ 40,485) applies if the intended profit or damage threatened by infringing acts are particularly large. Atleast 2 years.
Portugal The equivalent of between 150 and 250 days for infringements of enumerated acts.

The above penalty doubles for repeated offence, provided that the offence in question does not constitute an offence punishable by a more severe penalty.
Upto 3 years.
Singapore Upto $ 10,000 for the article or $ 100,000 whichever is lower. Upto 5 years
Upto $ 6,666 or $ 66,000 for violation of the reproduction and the display rights and to the sale or importation of infringing copies. Upto 3 years.
Upto $ 50,000 (US $ 33,335) for violation of the distribution right. Upto 3 years.
Upto $ 20,000 (US $ 13,333) for making or possession of a “plate or similar contrivance for the purpose of making infringing copies of sound recordings or audio – visual works and for violation of the public performance right. Upto 2 years.