ENTERTAINING ENTERPRISESMADRAS Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) Since the writ appeals arise out of the interim orders passed in the interlocutory applications filed in the writ petitions, they need not be dealt with separately, as we are disposing of the writ petitions themselves. Since the facts and circumstances which gave rise to the filing of the writ petitions are substantially the same, it is not necessary to deal with the facts in each of the writ petitions and it will suffice to, deal with the facts in Writ Petition No. 1587 of 1984. The first petitioner in that case is one Entertaining Enterprises carrying on the business of running a video cassette library in Door No. 310, Mount Road, Madras-600 018. The object of the petitioners' business is-to make avail, able on a fixed hire, video cassettes to its members to enable the members to view these cassettes in the Privacy of their homes, through a video cassette player attached to a television unit. The first petitioner has with him prerecorded cassettes which he hires out to the members of his library and these cassettes are returned by the hirers after viewing them in their homes. The 1st petitioner has with him several such prerecorded cassettes and the other Petitioners are also having varying number of such pre-recorded cassettes for the common purpose of being lent to their members on payment of fixed hire charges. The said business of hiring out video cassettes is of comparatively recent origin. As a result of the growth of the video industry, the growth of the video viewing public in India is in keeping with the growth of video viewing all over the civilized world. It is said that the Union of India has also been encouraging the viewing of video cassettes in homes through such machines and the Government, in keeping with the policy, has also drastically reduced the import duty on these units. On a rough estimate, there are nearly five lakhs of video cassette units, throughout the country and about one lakh units in the State of TamilNadu alone. As it is neither economically practicable nor otherwise possible any person owning a video player cannot be expected to own sufficient number of cassettes by making idle and wasteful investment in the purchase of several hundreds of video cassettes for their own use. It is here the video cassette libraries come into the picture and these video libraries invest money in purchasing cassettes and in hiring recorded cassettes to their members. The petitioners claim to be running the said video libraries for the past few years to the entire satisfaction of the public and' without creating any problems.

(2.) While so, the Government of the State of Tamil Nadu introduced the Tamil Nadu Exhibition of Films on Television Screen through Video Cassette Recorders (Regulation) Ordinance No. 2 of 1984. The said Ordinance seeks to provide for the regulation of exhibition of films through video cassette records. It provides for regulating the exhibition of films by requiring licences to be taken out by an intended exhibitor. The Ordinance excludes exhibition of films for domestic purposes to the members of one's family belonging to the household. Section 4 of the Ordinance requires persons like the petitioners to take out a licence to run a video library. The Licencing authority is required to have regard to the interests of the general public before granting or refusing the licence to keep a video library. Section 9 of the Ordinance requires every person giving an exhibition of films on television screen through a video cassette recorder to keep and produce on demand a letter of consent for each of the films exhibited from the first owner of the copyright of the cinematograph film or from his assignee. This section appears to cover even exhibition of cassettes for domestic purposes and to the members of the house hold. Every video library is also required to keep such letters of consent in respect of each film. Section 10 of the Ordinance provides for certification of films for exhibition through a videocassette recorder and only films so, certified are permitted to be hired out by the owner of any video library. The Ordinance also provides for other incidental matters including penalty, confiscation, powers of search and seizure and rule making power. While Section19 makes offences under the Ordinance cognizable, Sec. 23 requires every person keeping a video library to obtain a licence within four weeks from the date of the commencement of the Ordinance, i. e., before the 14th February, 1984. The said Ordinance has been replaced by the TamilNadu Exhibition of Films on Television Screen through Video Cassette Recorders (Regulation) Act 7 of 1984. By virtue of the rule making power granted under the provisions of the said Act, the State Government has framed a set of rules called the TamilNadu Exhibition of Films on Television Screen through Video Cassette Recorders (Regulation) Rules, 1984. The petitioners have chosen to challenge the constitutional validity of the said Ordinance which has been replaced by the Act (substantially the same as the Ordinance itself) in these writ petitions on the following grounds, namely, (1) Entry 33 of List II to Schedule VII of the Constitution of India refers to 'Cinemas' subject to the provisions of Entry 60 of List I. This expression. 'Cinemas' used in Entry 33 of List II does not take in video cassettes. Therefore, the State Legislature had no legislative competence to legislate an video cassettes under Entry - 33 of List II to, Schedule VIL and that it is -only the Parliament acting under Entry 97 of List -1 in Schedule VII to the Constitution which could make a law regarding the video 'cassettes; (2) Section 10(2) of the Act forbids sale, hire, distribution, exchange or circulation by any video library of any video cassette which has not been certified as suitable for public exhibition by the Board of Film Censors under Section 3 of the Cinematograph Act, 1952, end this provision is ultra vires as being beyond the competence of the State Legislature. Even if S. 10(2) is held to be valid, it cannot be given effect to as the necessary machinery for certification of video cassettes is yet to be set up, and without it~ the business of video library cannot be carried on, and as such Section 10(2), as on date, cannot be validly enforced, (3) Section 9 of the Act providing that in respect of each cassette, a video library should produce on demand a letter of consent from the owner of the copyright is also ultra vires, as it is not open to the State Legislature to add to, amend or modify any provision of the Copyright Act., which is a Central enactment, made in exercise of the powers conferred by Entry 49 in List I to Schedule VII of the Constitution of India; (4) Section 15(2) read with Section 9(2) of the Act is also ultra vires as infringing Article 20 sub-section (1) of the Constitution of India, in that, they amount to making an act an offence, when it was not so at the time of commission of the act At the time when the video libraries came into possession of any video cassette, it was no offence to be in such possession without a letter of consent, But the provisions of Section 9(2) of the Act now make it a punishable offence if the persons running the video library does not have a consent letter as contemplated by Section 9(2)(5) In any event, the provisions of the Act amount to a violation of the petitioner's fundamental right under Article 19(1)(g) and it is not saved by Article 19(5) as amounting to a reasonable restriction imposed in the course of regulation of the trade in prerecorded video cassettes; (6) The stage for enforcement of Sec. 9(2) and Sec. 10(2). had not reached yet and hence no prosecution for infringing those sections is possible; and (7) One month's time granted for compliance of Section 4 as provided in the Act is inadequate and the imposition of a liability before such compliance is bad in law.

(3.) As against these contentions, the State has filed a counter-affidavit stating that the Act in question is valid both from the points of view of the legislative competence and the contravention of fundamental rights that the impugned Act falls squarely within Entry 33 of List II of Schedule. VII of the Constitution, and that in any event, the entries cannot be strictly construed as they had to be treated as Heads of Legislation and as such wide meaning should be given to each entry. According to them the distinction sought to be made between the public exhibition of the video and the hiring of the same by the video cassette libraries is not warranted, and that both the Public exhibition of video and the hiring out of the video cassettes by the libraries are matters requiring regulation. In the counter-affidavit, it has been denied that the petitioners are circulating video cassettes for private exhibition only and therefore even video cassettes kept for public exhibition are to be separately certified under the Cinematograph (Certification) Rules, that S. 9(2) read with Section 15(2) of the impugned Act and Section 63 of the Copyright Act, 1957 constitute different offences, and therefore Section 20 which makes an offence under the Act cognizable one cannot be said to be ultra vires, that even if the video cassettes cannot come under the term "Cinemas" occurring in Entry 33 of List II of Schedule VII, the videocassettes will clearly fall under the term "Entertainment" occurring In the same entry According to them, the Act is not violative of the petitioners' fundamental rights under Article 19(2) and the so-called restrictions cannot be said to be unreasonable and beyond the scope of Article 19(6).