Chinnappa Reddy, J. - (1.) Nepal is our neighbour. Unfortunately Nepal is land-locked. Nepal's only access to the sea is across India. So, as one good neighbour to another with a view to 'maintain, develop and strengthen the friendly relations, between our two countries, by treaty and by International Convention, we allow a right of innocent passage in order to facilitate Nepal's international trade. One of the questions before us is the extent of this right:Does the right cover the transit of goods which may not be imported into India May goods which may not be brought into India be taken across Indian territory What does "import" mean more particularly what does "import" mean in Section 53 of the Copyright Act Can an unauthorised reproduction of a literary, dramatic, musical or artistic work or a record embodying an unauthorised recording of a record (which, for short, adopting trade parlance, we may call a pirated work), whose importation into India may be prohibited, but whose importation into Nepal is not prohibited, be taken across Indian territory to Nepal These are some of the questions which arise for consideration in this appeal.
(2.) The questions have arisen this way:The appellant, the Gramophone Company of India Limited, is a well-known manufacturer of musical records and cassettes. By agreement with the performing artistes to whom royalties are paid, the appellant company is the owner of the Copyright in such recordings. The appellant received information from the Customs Authorities at Calcutta that a consignment of pre-recorded cassettes sent by Universal Overseas Private Ltd., Singapore to M/s. Sungawa Enterprises, Kathmandu, Nepal, had arrived at Calcutta Port by ship and was awaiting despatch to Nepal. The appellant learnt that a substantial number of cassettes were 'pirated works', this fact having come to light through the broken condition of the consignment which was lying in the Calcutta docks. Basing upon the information received, the appellant sought the intervention of the Registrar of Copyrights for action under Section 53 of the Copyright Act, 1957. This provision enables the Registrar, after making such enquiries as he deems fit, to order that copies made out of India of a work which if made in India would infringe copyright, shall not be imported. The provision also enables the Registrar to enter any ship, dock or premises where such copies may be found and to examine such copies. All copies in respect of which an order is made prohibiting their import are deemed to be goods the import of which is prohibited or restricted under Section 11 of the Customs Act, 1962. The provisions of the Customs Act are to have effect in respect of those copies. All copies confiscated under the provisions of the said Act are not to vest in the Government, but to be delivered to the owner of the copyright in the work. As the Registrar was not taking expeditious action on the application of the appellant and as it was apprehended that the pirated cassettes would be released for transportation to Nepal, the appellant, filed a writ application in the Calcutta High Court seeking a writ in the nature of Mandamus to compel the Registrar to pass an appropriate order under Section 53 of the Copyright Act and to prevent release of the cassettes from the custody of the customs authorities. The learned single judge of the Calcutta High Court, on the request of the appellant, issued a Rule Nisi and made an interim order permitting the appellant to inspect the consignment of cassettes and if any of the cassettes were thought to infringe the appellant's copyright, they were to be kept apart until further orders of the Registrar. After causing the necessary inspection to be made, the Registrar was directed to deal with the application under Section 53 of the Copyright Act in accordance with law after hearing interested parties. The Registrar was directed to deal with the application within eight weeks from the date, of the High Court's order. In the event of any of the cassettes held back by the appellant being found not to infringe any provision of the Copyright Act, the appellant was to pay damages as assessed by the Court. Against the learned single Judge's order, the consignee preferred an appeal under Cl. 15 of the Letters Patent. A Division Bench of the Calcutta High Court held that the word 'import' did not merely mean bringing the goods into India. but comprehended something more, that is, "incorporating and mixing, or mixing up of the goods imported with the mass of the property in die local area". The learned judges thought it would be wrong to say that there was importation into India, the moment the goods crossed the Indian customs barrier. Keeping in view the treaties with Nepal, the Division Bench took the view that there was no importation when the goods entered India en route to Nepal. The appeal was, therefore, allowed and the writ petition filed by the present appellant was dismissed. And so, the writ petitioner in the. High Court has appealed to us under Article 136 of the Constitution.
(3.) First, we shall examine if there is any mandate of international law or if the rules of international law afford us any guidance and if such mandate or guidance is preceptive under Indian law. Two questions arise, first, whether international law is, of its own force, drawn into the law of the land without the aid of a municipal statute and, second, whether. so drawn, it overrides municipal law in case of conflict. It has been said in England that there are two schools of thought, one school of thought propounding the doctrine of incorporation and the other, the doctrine of transformation. (Per Lord Denning MR in Trendtex Trading Corpn. v. Central Bank of Nigeria (1977 (1) All ER 881)). According to the one, rules of international law are incorporated into the law of the land automatically and considered to be part of the law of the land unless in conflict with an Act of Parliament. According to the other, rules of international law are not part of the law of the land, unless already so by an Act of Parliament, judicial decision or long established custom. According to the one whenever the rules of international law changed, they would result in a change of the law of the land along with them, 'without the aid of an Act of Parliament'. According to the other, no such change would occur unless those principles are 'accepted and adopted by the domestic law'. Lord Denning who had once accepted the transformation doctrine without question, later veered round to express a preference for the doctrine of incorporation and explained how courts were justified in applying modern rules of international law when old rules of international law changed. In fact, the doctrine of incorporation, it appears, was accepted in England long before Lord Denning did so. Lord Denning himself referred to some old cases. Apart from those, we may refer to West Rand Central Gold Mining Co. v. The King, (1905) 2 KB 391 where the court said: "It is quite true that whatever has received the common consent of civilized nations must have received the assent of our country, and that to which we have assented along with other nations in general may properly be called international law, and as such will be acknowledged and applied by our municipal tribunals when legitimate occasion arises for those tribunals to decide questions to which doctrines of international law way be relevant.";