INTRODUCTION

Voltaire in his quote speaks about defending a person’s right to express himself but seems like; in India, people are more concentrated on infringing the right of freedom of speech and expression guaranteed under the Indian Constitution rather than protecting the same. Whether the tolerance of the people is diminishing or its no more a deal to ban movies, dramas, books, and speeches is a question that needs to be thought upon. Article 19 of the Indian Constitution has provided the Indian citizens with certain fundamental rights which allow them to live their life with liberty. Merely having food, shelter, and clothes to wear doesn’t account for a life with liberty. Those are the basic requirements of living, however, the freedom to speech,  profession, religion forms the basis of human rights. These are the rights which when taken away, takes away the liberty of a person.

Although it’s a free country, there is very little freedom in the hands of citizens when they wish to express their thoughts, opinions or showcase their talent and art. The freedom of speech and expression guaranteed under Article 19(1)(a) of the Indian Constitution comes with its own restrictions. This freedom can be restrained under Article 19(2) on the grounds of protecting the sovereignty and integrity of India, to maintain friendly relations with foreign States, public order, decency and morality, and in cases of contempt of court, defamation or incitement to an offence.[1] However, this provision has been misused and twisted in various circumstances and if listed down, one can get acquittance to the vast number of paintings, movies, books, advertisements, and dramas that have been banned because they offended a certain community, the culture of the country or someone’s religious sentiments.

The word “censor” comes from the Latin term censere, which means to assess. Film censorship in India dates back to colonialism, wherein the British introduced the first censorship law in India i.e. the Cinematograph Act, 1918 which came into effect from 1920. The provisions regarding censorship were retained even after India got its independence under the Cinematograph Act, 1952 (“Act”). The Central Board of Film Certification (name changed from censorship to certification) (“CBFC”) or more commonly known as the “Censor Board” is a statutory body under the Act, regulating the public exhibition of films.[2] CBFC has been given the power to decide as to whether a certain movie should be banned or cleared to release. Further, if an applicant is aggrieved by the decision of the CBFC then the applicant can file an appeal with the Film Certification Appellate Tribunal (“FCAT”). This article will be dealing with FCAT and its role in brief.

FCAT CONSTITUION

The FCAT has been established by the Central Government under section 5D of the Act and it hears appeals against decisions of the CBFC.[3] Previously, the appeal from the CBFC’s decision lied directly with the Central Government, more so with the Ministry of Information and Broadcasting, who would after discussing the issue with the relevant ministries pass the final order.[4] This decision of the Central Government would be final and applicable throughout India. However, this procedure failed to generate the confidence in the filmmakers as it lacked the application of mind by an independent body. Pursuant to the case K.A. Abbas v. Union of India[5], the FCAT was established through an amendment in the year 1981 w.e.f. 1^st June, 1983.

The FCAT is situated in New Delhi and is headed by a Chairman who shall either be a retired Judge of a High Court or a person who is qualified to be a Judge of the High Court.[6] The FCAT shall comprise of not more than 4 members who shall be appointed by the Central Government. These members are usually experts such as lawyers, politicians, and bureaucrats, who can effectively judge the effect of the film on the viewers. Currently, Chief Justice (Retd.) Manmohan Sarin is the Chairman of the FCAT and its members are Ms. Bina Gupta, Mr. Shekhar Iyer, Ms. Shaziya Ilmi, and Ms. Poonam Dhillon.[7]

Neither the Act nor the rules lay down any criteria for selection of the members to the FCAT, which in turn leads to arbitrary and subjective selection by the Government. While talking about film certification, to ensure its transparency, qualifications must be laid down so that the members do not end up being the mouth-piece of the government.[8]

WHEN TO APPROACH FCAT

The CBFC under the Act has been given the power to sanction the film for unrestricted public exhibition (“U”), for unrestricted public exhibition but under parental guidance for children (“U/A”), for adults (“A”), or for a special class of persons (“S”). It can also direct certain modifications/alterations in the movie or refuse to sanction the movie, implying that the movie would not be released.[9] Only these orders of the CBFC can be challenged under an appeal to the FCAT. Further, S. 5C of the Act provides that any person who is aggrieved by the order of the CBFC can file an appeal with the FCAT within 30 days of such order of the CBFC.[10]

The Act also provides for a delay in filing an appeal, it states that an appeal can be made even after the expiry of the 30 days if the same is filed within the time frame of another 30 days and only if enough reasons are given in the appeal which prevented the applicant from filing the appeal.[11] However, beyond these 60 days, the FCAT shall not entertain any appeals. Though an exception was created in the case of Ritu Ruhil v. CBFC, Mumbai.[12] The appellant being aggrieved by the order of the Revising Committee, refusing to grant certification, filed an appeal with the FCAT. The FCAT pointed out that the order was received by the appellant on 25^th April, 2018 and the appeal was filed on 11^th July, 2018, the limitation period, including the additional discretion of 30 days, expired on 25^th June, 2018. Thus, it ruled that the FCAT cannot condone the delay beyond 60 days, and accordingly the appeal was dismissed. However, in a writ petition filed in the Bombay High Court, the FCAT agreed to give concession to the appellant and the appeal with FCAT was restored.

REMEDIES AVAILABLE ON APPEAL

As mentioned above, the grounds on which an appeal can be filed with FCAT are limited. These grounds can be divided into three categories, the first category being where an appeal is preferred against the certification order of the CBFC. Whereas on the other hand, the second category includes appeals filed from the order of the CBFC wherein there has been a denial of certification, implying that the movie has been banned. The third category involves filing an appeal against the modifications suggested by the CBFC.

§  Appeal against the certification order of the CBFC

If the appeal falls in the first category, the FCAT may direct the CBFC to change the certification category, with or without any modifications. For instance, the movie 31^st October was granted an “A” certificate by the CBFC, however, on appeal the FCAT directed the CBFC to certify the movie as “U/A” after the modifications suggested by the FCAT were implemented.[13]

§  Appeal against the refusal by the CBFC to certify the movie

In the second category of appeals, the FCAT may either uphold the decision of the CBFC to ban the movie or may direct the CBFC to certify the movie with or without any modifications. For instance, in one of the cases, when applied for certification, the CBFC refused to certify the movie, thereafter an appeal was filed with the FCAT which directed the CBFC to grant an “A” certificate after making a few cuts.[14]

Neither the Act nor the rules prescribe the powers of the FCAT and there are no legal principles that have been laid out which could guide the decisions of the FCAT. Thus, this has led to an arbitrary approach being adopted by the FCAT and the same is evident from its orders. For instance, the movie Lipstick Under My Burkha was initially refused certification by the CBFC.  However, the FCAT ordered the CBFC to grant an “A” certificate to the movie and also suggested a few cuts and muting of a few cuss words to be carried out in the movie. The cuts that were recommended seem quite unreasonable, for instance, a sex scene in the movie was already being reduced by 12 seconds, the FCAT recommended that it should be reduced by another 30 seconds.[15]

In another case, the CBFC refused to grant a certificate to the movie War and Peace, pursuant to which an appeal was filed before the FCAT which directed the CBFC to grant a “U” certificate to the movie once there are two deletions and one addition carried out in the movie. However, on appeal, the High Court held that these modifications recommended by the FCAT as curbing the freedom of speech and expression guaranteed under the Indian Constitution and directed the CBFC to issue a “U” certificate to the movie without any modifications in the movie.[16] Thus, it can be seen that there is a need to lay down legal principles to be followed by the FCAT while passing an order.

§  Appeal against the modification suggested by the CBFC

The third category of appeals, involves an appeal from the order of the CBFC recommending certain alterations/cuts to be made in the movie. The FCAT may either uphold these changes or may overrule them. In one of the cases, the CBFC had granted an “A” certificate to the movie Maadathy – The Unfairy Tale and had suggested 6 cuts to the movie. In an appeal filed with FCAT, it was claimed that these cuts would have an impact on the narrative of the film. In a great relief to the audience and the filmmakers, the FCAT overruled the decision of the CBFC and directed it to grant an “A” certificate without any modifications in the movie.[17]

CONCLUSION

The role of FCAT in balancing the need for certification and upholding the freedom of speech and expression has not been significant. Various loopholes need to addressed such as defining the eligibility of the members of the FCAT, in order to enhance its role. However, there have been instances, wherein the FCAT has stepped in and directed the CBFC to take appropriate measures to ensure that the artist’s creativity is not compromised upon.

Further, in order to compete with the global cinema, it is necessary that the rights of these artists are protected by ensuring that the certification process is eased out. The current certification process limits the risk-taking ability of these artists, as they know that there could be multiple hindrances caused either by the CBFC, political parties, and religious denominations, and it would be stuck in litigation for a really long period, that too without knowing the outcome of the same.

Moreover, the Covid-19 outbreak has brought a halt to the theatrical releases and the movies that were scheduled to be released in the theatres are now being released on the OTT platforms. Currently, these OTT platforms are not governed by the Act and hence, there is no need to obtain certification from the CBFC, thus making the procedure of releasing content simpler. Thus, it is high time that the certification bodies take a cue by adhering to their role of merely certifying the movies and then leaving it upon the viewers to decide what they wish to watch.

The post Film Certification Appellate Tribunal: Constitution, When to Approach and Remedies appeared first on Legal Desire Media and Insights.

INTRODUCTION

The intellectual property rights are basically those rights that give you monopoly rights, though there are certain limitations to the same. Therefore, it is ensured that while granting these monopolistic rights, the building blocks that promote creativity such as ideas, facts, and abstract knowledge are not restricted. The same has been achieved by the intellectual property law by making sure that certain minimum standards are fulfilled before any intellectual property right is granted to the applicant. For instance, in patent law, there has to be an invention which is non-obvious and has industrial application. Similarly, while granting copyright to any literary, musical, artistic, and dramatic work, it should be ensured that the same is original.

The grant of copyright is necessary to ensure that the effort of the person is protected and to encourage creative expression. Originality is a precondition to the grant of copyright. Thus, in order to be able to receive copyright protection, the work submitted by the applicant has to be ‘original’ and the same should not have been copied from somewhere else. Thus, the sine qua non of granting copyright is originality.

The infringement of an intellectual property right takes place when a person makes unauthorized use of the owner’s work. In the case of copyright, infringement occurs when a person uses the work of the copyright owner without his/her permission. However, there is an exception to this in the form of the fair use doctrine that allows a person to use the work of the copyright owner in a limited manner without the permission of the author. The doctrine of fair use is a well-established principle that puts a limitation on the rights of the copyright owner and is used to limit the monopolistic rights of the owner. This concept emerged as an equitable doctrine and hence, can be used as a defence.  The user in this situation agrees that the work of the copyright owner has been used by him/her without permission, but the same is justified by the user under the fair use doctrine.

FAIR USE UNDER INDIAN COPYRIGHT LAW

The Berne Convention for the Protection of Literary and Artistic Works, 1886 (“Berne Convention”) and the TRIPS Agreement provide for the inclusion of the fair use concept in the national legislations. The Berne Convention provides a three-step test and states that the legislation of countries must provide for the reproduction of work (a) in certain special cases; (b) the reproduction should not exploit the original work, and (c) it should not cause prejudice to the interests of the author.[1] The three-step test provided in the Berne Convention has also been used in the subsequent conventions on intellectual property protection.

In the light of the Berne Convention and other international instruments, the Copyright Act, 1957 (“Act”) under Section 52 lists down the exceptions that would not be considered as an infringement of copyright.[2] This section provides that the following acts shall not constitute an infringement of copyright:

The Act nowhere defines the term “fair dealing” and most of the time the courts refer to the landmark judgment of Hubbard v. Vosper wherein it was observed that “fair dealing” is a question of degree. It further said that first one must look at the number of quotes, then the use of these quotes need to be considered, then the proportion and there may be other considerations too. However, in the end, one needs to look at the impression.[3]

It can be seen that the fair use doctrine does not allow a person to as it is copy the work of the copyright owner. It merely states that a part of the work, such as quotes and expressions, could be used by a person in a manner to ensure that it does not look like that the idea of the copyright owner has been completely snatched away. In order to fall within the ambit of fair dealing, there should not be any intention to compete with the copyright owner and the motive should not be improper in dealing with the work of the copyright owner.[4] Moreover, it is always the original work that gets recognition and no one can ever become great merely by imitation.

It is to be noted that there is a minor difference between the concept of “fair use” provided in the US law and the concept of “fair dealing” as has been provided in the laws of the UK, India, and Canada. The fair use concept is a much broader terminology and a case is decided based on certain ingredients being fulfilled. On the other hand fair dealing is a much-restricted concept in the sense that the use of the work should fall within the list enumerated in the copyright law. Thus, it can be seen that the fair dealing concept is restricted in nature and might not be able to encompass the recent changes and dynamics of digital technology.

ROLE OF INDIAN JUDICIARY

The courts have, in various cases, stated that it is not possible to lay down the principles of fair dealing in black and white terms, as what may be fair in one case may be unfair in the other case.[5] In the case of SK Dutt v. Law Book Co. and Ors.[6] it was observed that in order for an infringement to exist, a substantial portion of the copyright owner’s work should have been copied. The more the work is copied, the lesser the fair dealing can be implied. In the case of RG Anand v. Delux Film and Ors.[7], it was held that defence of fair dealing would not be applicable in case there is a copy of an idea. Thus, for the concept of fair dealing to be applicable, there has to be substantial use of the copyright owner’s work, however, there should be limited use of the work for it to be considered as fair.

The purpose of reproduction has to fall within the list provided under Section 52 of the Act, that broadly being private use including research, criticism, and review. The Court in the case of Academy of General Education, Manipal and Anr. v. B. Manini Mallya[8] observed that there can be fair dealing of a literary or dramatic work for the purposes mentioned in Section 52, there cannot be any copyright infringement. Moreover, it stated that if the performance is done before a non-paying audience which is an amateur club or society then the same will also not be considered as copyright infringement.

The likelihood of competition is another factor that is considered by the courts while considering the fair dealing doctrine. In one of the cases, it was held that if the work of the copyright owner is being used to convey the same information then the same would be unfair.[9]

Thus, it can be seen that though the Act does not define the term “fair dealing” or lay down any criteria, there are several cases that lay down the criteria which can be used to determine a ‘fair dealing case’.

CONCLUSION

The Courts have time and again laid down principles to decide a case involving the fair dealing doctrine, however, it has not yet got the opportunity to address whether the provision governing the same is adequate or not. It can be noted that the fair dealing concept in India is more restrictive than the concept of fair use as has been provided in the laws of the US.

Fair use and copyright are the two sides of the same coin and they need to co-exist. There is a need to explore other areas too looking at the technological developments. The recent issue that has crept up is regarding memes that are used on various social media platforms. The question that arises is that do they infringe the copyright or do they fall within the ambit of fair dealing doctrine? There are four major factors that are considered while establishing a fair use, they are (a) substantial use, (b) nature of the copyrighted work, (c) purpose and character of the use, and (d) likelihood of competition in the market.[10] Thus, while dealing with the abovementioned questions the court can decide the matter by applying these four factors. However, there are still a lot of factors that need to be explored as the same will vary on a case to case basis.

Thus, there is a need to make the approach towards fair dealing a little relaxed, so that the monopolistic rights granted through copyright protection does not limit the rights of others.

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INTRODUCTION

Indian cinema attracts a wide range of viewers and is one of the largest cinema hubs in the world. In FY 2019, the box office revenue in India was INR 142 billion, a number that is mind-boggling.[1] Apart from the fondness towards cinemas, as per the statistics, going for movies is the cheapest outing option available to a family of four.[2] Now, let’s flip back to a time wherein you were eagerly waiting for a movie to hit the theatres so that you could go and watch its first show on the first day. How badly would you have resented wherein just one week before the release had the movie been banned? The movies being banned in India is not a new phenomenon and its reasons include the explicit portrayal of sexual content, the political angle attached to the movie, if it hurts the religious sentiments of the people, or if there is an incorrect portrayal of a public figure.

Movies exhibit ground reality and it is one of the most captivating forms of audiovisual which can have a huge impact on the viewers’ minds. It gains the attention of the viewers quickly due to the combination of different factors such as the intense light of the screen, the sound, you can watch the characters come to life and the environment of the theatre as we all know eliminates any form of distraction.^[3] Hence, the Apex Court has ruled that it is essential to certify the movies as Unrestricted (“UA”), Adult (“A”), Under Parental Guidance (“UA”), or  Restricted to any special class of persons (“S”), before it hits the cinemas, as it can easily motivate and influence people and hence cannot be equated with other forms of expression or communication.^[4]

Film censorship was introduced in the colonial era and it continues to exist even today. The controversies regarding film censorship by the Central Board of Film Certification (“CBFC”) and the States is not something that is novel. States have been equally involved in banning movies. For instance, the Padmavat row, there was a huge hue and cry regarding this movie right from the inception, the sets were burnt, death threats were made, and all of this took place without even knowing the actual content of the movie. The Supreme Court came to the rescue of the artists and held that the States cannot ban the movies once it has been cleared by the CBFC. Further, it is difficult to understand the relevance of changing the name from Padmavati to Padmavat and the difference it made in the end.

CENSORSHIP VIS-À-VIS ARTICLE 19

Article 19(1)(a) of the Indian Constitution guarantees the freedom of speech and expression subject to reasonable restrictions. Article 19(1)(a) does not list down the different mediums of expressions that fall within its ambit. However, motion pictures are one of the forms of expression and hence receive the protection of Article 19.

Article 19 mentions “freedom of speech and expression” which is significantly different from the mere mentioning of “speech and expression”. This article protects the former one and not the latter one as the former one recognizes the fact that a person has the liberty to express his/her ideas but that does not mean he/she can say whatever or whenever they want to.[5]

It has been held by the Apex Court that movies are much different from other mediums of expression, for instance, the printed word, and hence, it needs to be certified and the certification is well within the scope of Article 19. Pre-censorship was held to be constitutionally valid in the landmark case of K.A. Abbas v. Union of India[6] (“K.A. Abbas”).

The Central Board of Film Certification (nomenclature has been changed from Central Board of Film Censorship), has been established under the Cinematograph Act, 1972 (“Act”) and as the name suggests, it is for certification of movies.  However, under Section 4 of the Act, the CBFC has also been given the power to refuse the sanctioning of a film for public exhibition. Despite the change in name, there is a little change in the role of CBFC and it continues to ban movies on hare-brained grounds. Once the movie has been certified it should be left to the viewers’ decision as to whether they wish to watch the movie or not.

The CBFC has been resistant to change and the same is evident from the fact that in the year 2002 when Vijay Anand, the Chairman of CBFC, had proposed changes in the censorship law and had also suggested that films with explicit sexual content should be portrayed too, the government prevented the entire action and did not even consider to look into the matter[7]. It is pertinent to note the observations of the Shyam Benegal Committee constituted to recommend guidelines for certification of movies and it had suggested that the role of CBFC should be limited to mere certification of movies and that the system of suggesting alterations in the movie should be completely done away with.[8] The Committee had submitted its report in April, 2016, however, until now no action has been taken.

Ever wondered whether the content being shown on the OTT platforms such as Amazon Prime, Netflix, or Disney+Hotstar is censored or not or how do they manage to portray content that has explicit sexuality and extreme violence.  In response to an RTI filed by India Today TV, it has been confirmed that neither the CBFC nor the Ministry of Electronics and Information Technology regulates the content being shown on the OTT platforms. Thus, it can be seen that this is a positive step towards the premise that it should be left on the viewers’ choice as to whether they want to watch a particular content or not. A similar approach should be followed by CBFC too and the powers of the CBFC should be restricted to mere certification of movies.

THE ROLE OF JUDICIARY

Under the Indian Constitution, the powers and functions have been allocated between the three organs, i.e. the legislature, the executive, and the judiciary, and all the three are required to work independently. However, another unique feature of our Constitution is the checks and balance system, wherein one organ keeps a check on the other organ and the same applies to the CBFC as well wherein the judiciary keeps a check on the CBFC. The British had kept the area of film censorship completely outside the purview of the judiciary, however, in the K.A. Abbas case, it was argued that there should lie an appeal with the courts, which the government agreed to and it was observed by the Apex Court that the same was necessary to remove the stigma around the film censorship in India.

It cannot be denied that the role of the judiciary in the case of Indian cinemas has brought in great relief to the filmmakers and audience and its role cannot be neglected as it has been massive. One such precedent is the case of Vinod Kumar Kanojia v. UOI[9], wherein the petitioner claimed that the use of the word ‘dhobi’ in the movie Dhobi Ghat is an insult to their community and that has affected and dented the feeling of the community. The Court said that firstly, the name in no manner can be offensive to a particular community, and secondly, it pointed out that the PIL’s were being misused to gain personal interests and the issues raised have no nexus with the public interest. Had there been a violation of any act or rules by the CBFC, they would have interfered, but just because the name of the movie is Dhobi Ghat, it does not fall within that sphere of protection.

Another such precedent is the case of Rashtravaddi Shiv Sena v. Sanjay Leela Bhansali[10], wherein the Delhi High Court rightly pointed out that our Constitution grants not only freedom of speech but freedom after speech. The petitioners contended that the name of the movie is Ramleela and it gives a wrong impression of the movie being based on Lord Ram’s life whereas on the other hand the movie is completely based on violence and is filled with vulgarity. The petitioners further contended that the movie deliberately aimed at hurting the religious sentiments of the people. The Court said that the Constitution provides for prior restraint, however, the weighing scale needs to be favored towards the artists who should have room to showcase their art in the form of movies. The petitioners had admitted that they had not watched the movie. The Court further pointed out that the title, scenes, and dialogues should not be judged from a weak-minded person’s point of view. The movie was released and it crossed the 100 crore mark at the box office, which again shows that the final decision should rest with the viewers.[11]  

The Bombay High Court in a recent judgment, Children’s Film Society v. CBFC, slammed the CBFC and held that CBFC should not be the one deciding what a person should watch. The CBFC in this case had granted a U/A certificate to the movie Chidiakhana. The order of the Bombay High Court made some really strong observations about CBFC and it further said that the role of CBFC will have to be redefined. The Court pointed out that merely by deleting one or two scenes from the movie would not change the ground reality and that movies can be used as a medium to educate children about the issues existing in the society. The Bombay High Court also noted that the role of the CBFC is to certify the movies and not censor them.[12]

It is not just the CBFC but even the state governments have played an active role in banning the movies. In S. Rangarajan v. P. Jagjivan Ram[13] case, the state government banned the movie, Ore Oru Gramathile. Further, when challenged in the Madras High Court, the “U” certificate granted to the movie was revoked on the ground that the release of the movie would lead to demonstrations in the state. However, the Supreme Court reversed the judgment of the High Court and held that the freedom of speech and expression cannot be compromised upon, due to the threats of demonstration and violence.

The movie Da Vinci Code despite being given an ‘A’ certificate by the CBFC was banned in several states on the ground that it hurt the religious sentiments of the Christian and the Muslim community. Further, a PIL was filed to ban the movie and the selling of the original novel on which the movie was based, throughout India, which was rejected by the Apex Court. The Supreme Court further pointed out that the movie had not been banned in any of the Christian dominated countries and there was no legitimate ground brought forward by the petitioners to ban the movie in India.[14] Later on, the High Courts of various states revoked the ban.[15] The Madras High court while revoking the ban held that[16]:

“When our Courts have considered it their duty and responsibility to intervene when even the Central Board of Film Certification interferes with the fundamental right of freedom of speech and expression, the duty and responsibility is heavier in this case where the film has got the Censors’ approval and yet, the petitioners have been prevented from exhibiting the film by an order which has no reasonable basis. Therefore, the impugned order is void for contravention of the fundamental right.”

The Apex Court, in the case of Harinder S. Sikka v. Union of India has made it amply clear that once the movie has been certified by the CBFC, no body, group, association or individual can obstruct the screening of the movie. It further noted that once the movie has been certified, unless the certification is modified or altered by a superior authority, there should not be any hindrance caused in releasing the movie.[17]

CONCLUSION

The list of the number of movies banned in India is endless right from the first movie that was banned by the CBFC i.e. Neel Akshar Neechey to other movies such as Bandit Queen, Madras Café, Fire, Final Solution, and so on. The CBFC, sometimes, instead of refusing to grant the certification asks the movie producers to remove certain parts, i.e. cut scenes from the movies, for instance, movies like Padmavat, Udta Punjab,  and Hava Aane Dey were asked to cut out several scenes from the movie. No doubt, the essence of the movie is lost altogether when so many parts are required to be cut.

However, banning the movies is not the solution and the same is evident from the fact that when the movie India’s Daughter was released on YouTube, after being banned in India, it received thousands of views. Sadly, the movie was again taken down as requested by the government. On the other hand, the judiciary in India has played an active role in upholding the freedom of speech and expression of the artists along with ensuring the need for certification. Moreover, the courts have not shied away from its responsibilities to ensure that the essence of the Indian Constitution is always upheld. Further, it has been rightly pointed out by Mahatma Gandhi that the windows should be kept open and different cultures should be allowed to be blown around the house. Maybe, someday the essence of his words will be reflected in the way Indian movies are certified.

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The interest of the producer ought to be attended to, only so far as it may be necessary for promoting that of the consumer – Adam Smith

INTRODUCTION

The term consumerism was first used in the 1960’s by a businessman, which if looked at from economics perspective has a different meaning altogether, it means the satisfaction attained by a consumer after increased consumption of goods. However, when used in the light of consumer protection, it implies a force that is built to protect the rights of the consumers, it could be in the form of a consumer movement or it could be making the consumers aware of their rights. Now, some others say that it means the different sets of activities undertaken by the government, businesses, and organizations to protect the interests of the consumers.[1]

In recent times, there has been a steep rise in e-commerce activities, wherein the consumers have shown a preference towards online shopping, be it through a national platform (PharmEasy) or an international platform (Amazon), over the traditional brick and mortar stores. Who would not prefer the comfort of shopping from the cozy corners of their house? However, the national law governing consumer protection is not sufficient to cover all the aspects of such internationalization of consumer habits and to cater to the same an international framework is needed.

Due to globalization, the possibility of misleading the consumers has also sharply increased. For instance, the Facebook – Cambridge Analytica case, wherein the data of thousands of users was compromised. The principle of Caveat Emptor plays a very important role while understanding consumer protection laws. However, how is this principle to be applied in case of an online transaction, wherein, the buyer cannot possibly check the quality of the product he/she is purchasing or see if the product is original or not. Moreover, the need for having an international framework and co-operation by governments has also been emphasized by the UN Secretary General in 1980 as the measures at the national level are not sufficient for consumer protection in recent times.[2]

DOMESTIC FRAMEWORK

·      Constitutional provisions

Though not directly, the Indian Constitution under article 19(1)(g) provides for freedom of trade and business. However, this freedom is not absolute and can be restrained under Article 19(6), if the same is necessary for the interests of the general public. For instance, the Ministry of Health and Family Welfare (Department of Health) issued a notification dated 30^th April, 1992 prohibiting the use of tobacco in toothpastes or tooth powders. The Hon’ble Supreme Court in the case of Laxmikant v. Union of India[3] upheld the notification on the ground that the use of tobacco has major health effects and hence, it is necessary for protecting the interests of the public and was well within Article 19(6).

Thus, the freedom of trade and business can be curbed in the interests of the general public and the same is relevant while preparing regulations for the operation of a business or carrying out trade and through this, the government can lay down any criteria or provisions for consumer protection, till the extent of the criteria or the provision falling within the ambit of Article 19(6). For instance, the need for licenses and permits for carrying out certain businesses, it can be said that the same has been provided for in order to protect the interests of the consumers. However, the restrictions have to be reasonable.

Furthermore, Article 21 of the Indian Constitution which is the most important fundamental right, guarantees the right to life, free from all forms of exploitation. The directive principles also ensure a constitutional mandate for protecting the rights of the consumers.[4]

Article 47 of the Indian Constitution provides that the State should take measures to raise the level of nutrition and improve the standard of living and it shall make efforts to prohibit the use of drugs and intoxicating drinks that has a harmful effect on the health of the people.

·      Other Legislations

The Consumer Protection Act, 1986 (“CPA, 1986”) protected the interests of the consumers in India, which will now be replaced by the Consumer Protection Act, 2019 (“CPA, 2019”). CPA, 2019 was passed by the Parliament on 6^th August, 2019 and received the President’s assent on 9^th August, 2019, after which it was published in the Official Gazette. The CPA, 2019 has been notified by the Central Government w.e.f. from 20^th July, 2020, however, the definition of e-commerce is yet to be notified.[5]

CPA, 2019 defines e-commerce to mean the buying and selling of goods through an online platform. However, it is not sure if this definition also includes transactions taken place offshore.[6] On the other hand, the Consumer Protection (E-Commerce)Rules, 2020 (“Rules”) (yet to be notified) states that these rules shall also be applicable to an e-commerce entity which is not established in India but offers goods or services to consumers in India. Thus, this disparity between the CPA, 2019 and the Rules needs to be resolved.

There are several issues pertaining to cross-border transactions that need to be answered and the same has a significant impact on consumer rights. For instance, in case of an online fraud, who would have the jurisdiction to hear the matter, how to resolve the payment fraud, the remedies available in case of delivery of substantial products, and so on.

There is no direct remedy available to a consumer indulging in a cross-border transaction. One may argue that the consumer could take recourse of Information Technology Act, 2000 (“ITA”), however, the same does not specifically deal with the rights of consumers as it mainly covers aspects regarding digital signature, document authentication that is in electronic form or recognition of electronic records and so on, which are relevant when we talk about a commercial or a business transaction.[7]

The number of complaints received by the National Consumer Helpline regarding e-fraud is shocking. There has been a whooping rise of 475% within a span of 3 years. The number of complaints received in the Financial Year (“FY”)  August 2016- March 17, beginning from August, were 977 and in the FY April 2019 – November, 2019 there were 5620 complaints. Thus, one can see the importance of e-commerce and the number of frauds taking place with no concrete dispute redressal mechanism in place.[8] The ITA, under Section 1(2), provides that the act is also applicable to contravention committed outside India. However, there is nothing that has been specifically provided for cases of online frauds, whether committed in India or outside India.

INTERNATIONAL FRAMEWORK

Consumer protection has attained a new international dimension due to the development of technology and an increase in cross-border trade and hence there is an urgent need to put in place inter-governmental co-operation to ensure smooth resolution of disputes. For instance, Amazon delivers its products to several jurisdictions (fun fact, Amazon sells an average of $17 million per hour[9]), including India and with such internalization of e-commerce, it is pertinent to have a strong international framework in order to protect the rights of the consumers. International consumer law is a relatively new area in the legal discipline and the two main purposes that it intends to achieve are (1) uniformity in minimum standards for consumer protection and (2) eradication of cross-border trade barriers.[10]

·      UN Guidelines for Consumer Protection

The first step towards the internalization of consumer protection law was taken in the year 1885 by the introduction of the UN Guidelines for Consumer Protection (“Guidelines”) and this year marks completion of 35 years of these Guidelines. In order to keep up with the changing trends, these Guidelines were revised in the years 1999 and 2015. The 2015 revision makes provision for new aspects, inter alia, good business practices, e-commerce, and dispute resolution.

The main drawback of these Guidelines, just like any other international instrument, is that they are soft law and hence, are not binding on the Member States. The same can be noted in the objective of these Guidelines which states that it aims at assisting the Member States in the formulation of national law and policy regarding consumer protection. Further, throughout the Guidelines it has been mentioned that the “Members should” undertake the mentioned steps, thus, implying that it is not mandatory for the Member States to inculcate the provisions of these Guidelines in their domestic law.

However, one cannot simply neglect the positive impact of these Guidelines, despite their non-binding nature. For instance, Uruguay reviewed its consumer legislation keeping the Guidelines as their referring point, National Consumer Protection Board was established in Ecuador and these Guidelines have also been used by various consumer protection bodies to bring about a change in their legislations.[11]

·      Other Measures

Apart from the Guidelines, various other organizations have played an important role in consumer protection at an international level. These include United Nations Conference for Trade and Development (“UNCTAD”), World Intellectual Property Organization (“WIPO”), World Health Organization (“WHO”), Food and Agricultural Organization (“FAO”), International Labour Organization (“ILO”) and so on.[12]

It is pertinent to note the contribution of the Organization for Economic Co-operation and Development (“OECD”), which has established a Committee on Consumer Policy that addresses a broad range of consumer issues by conducting research and making policy development reports. For instance, in the year 2016, the Committee submitted a detailed report on “Consumer Protection in E-Commerce”. UNCTAD has also played an active role in the international regime and assists various developing countries. It recently came up with a Manual on Consumer Protection, in order to provide a detailed guide on the subject.

International Consumer Protection and Enforcement Network (“ICPEN”), as the name suggests, is a global network comprising of more than 60 countries. The ICPEN has launched a website, i.e. www.econsumer.gov, wherein the consumers can submit their complaints in case of cross border disputes.

CONCLUSION

Despite the efforts of the various international organizations to internationalize the consumer protection law, the drawback of the same being non-binding still exists and hence, is a major issue in implementing the same. Ensuring the efficacy of consumer protection law is significantly important as at the end of the day everyone is a consumer and thus our rights as a consumer are affected. The issue regarding solving cross-border disputes is majorly affected due to various factors involved such as jurisdiction and the applicable law. Even though our national legislation does not talk about cross-border disputes, looking at the recent developments, the same should be incorporated soon.

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