Justice Bhaskaran Nambiar : Beyond Likes and Dislikes……

(By K. Jaju Babu, Sr. Advocate)

What makes a good Judge - independence ?, impartiality ?, integrity?......

To me, it depends upon the “mind set” of the person looking at the Judge. Well said, judging a person does not define who they are. It only defines who you are.  Socrates attributed four things, as essential qualities of the good Judge: to hear courteously, to answer wisely, to consider soberly and to decide impartially!.

Again left to myself, I prefer a fair Judge, who is wise, fair and sporty.  Mother Theresa said, if you judge people, you have no time to love them.  True I don’t judge him, but Justice V.Bhaskaran Nambiar was born to be awesome. 

I met him first during early 1980’s, when I was a budding lawyer at the beginning of my legal career. At that time, Advocate Bhaskaran Nambiar (as he then was) was one of the busiest lawyers in the Kerala High Court having a roaring practice.  I had a habit of getting dejected when a matter is dismissed at the admission stage, having argued it all in one breath.  Nambiar Sir noticing my predicament, gave a secret tip for securing admission. “Jaju, on the first day you argue the main point and if it clicks, give a big smile to yourself.  But if the Judge is not inclined to give admission, please get it adjourned for tomorrow. On the next day you highlight points 2 and 3 also.  If you still don’t get a notice, pray for an adjournment to next week with a demanding smile for the Judge.  On the next posting date, assert all the points available and use all efforts to convince the Judge, that you got a good case”. I got impatient and asked, “Sir, if again, I fail to impress upon the Judge?.”  He then replied  with a grin, “just leave it to the Judge and return to your seat after giving a smile for all around you.  Don’t quarrel with the Judge, for he will remain where he is.  But that you have lost him, will become the talk of others”. 

I abided by his advice. And only gained.  I still remember this to pass on; it is the only thing to do with it now.

Advocate Nambiar later became Advocate General in the year 1981.  He was a Judge of this Hon’ble Court during 1983-89.

The very next month after being sworn in as a Judge of the Kerala Hon’ble Court, Justice Bhaskaran Nambiar began a judgment under the Citizenship Act 1985 with the following words…….. “Citizenship is a man’s basic right; for it is nothing less than the right to have rights.  Remove this priceless possession and there remains a stateless person, disgraced and de-graded in the eyes of his countrymen.

(Chief Justice Earl Warren in Perez v. Brownell)

Here is a petitioner who craves for Indian citizenship and cries for the determination of his rights by Central Government.  The Government dealt with a hard blow on harsh technicality.”

This was just the beginning.

On the question of the validity of electricity tariff he delivered a dissenting judgment against a majority judgment of 4 Judges saying………….. “To dissent is not in my line. However, dissent,
I must, when I have absolutely no doubt in my mind.  To be in a minority is no source of strength; but certainly it is no sign of weakness. ”

Later the Supreme Court upheld his judgment.

After retirement, he reverted to the profession as a Supreme Court designated Senior Advocate from 1989 onwards. He also continued mediations and adjudications as commissions of enquiry, arbitrator etc.

Till 1986, along with George Poonthottam, I was his neighbour.  Nambiar Sir, had a great sense of humour.  His talented sons Vijayakumar, Ramesh Chandar and Raj Mohan followed their father into the legal profession.  Next time, they talk to you, just to look at them and hear the remaining tales of humour, left behind by their father.  His wife Smt.Gowri Nambiar shared the very same smile Justice Nambiar was always having.   As a lawyer, even if there is no work in the afternoon, (which happens rarely) Adv. Bhaskaran Nambiar will not go home to relax.  Out of curiosity I once asked him why he is not returning home when free.  He explained with a smile, “My wife believes that I am a busy lawyer tied up in court hearings till the evening.  If I return home before 4.15 P.M., she will definitely think otherwise.  Why should I deny her the exclusive opportunity to express her appreciation for all I have done ?”. 

While a lawyer, he had amazing communication skills and a good rapport with fellow lawyers and Judges. As a Judge he possessed excellent logical reasoning and decision making skills, which probably enabled him to sit along with the then Chief Justice for the longest number of years in the history of the Kerala High Court.

In 2006, he released a book, “Life’s Likes and Dislikes”, which is precisely his life-sketch.   Even though he became a lawyer with first class and first rank from Madras University, with all humility he begins the book as follows; “The profession of a lawyer is like a turtle.  He makes progress only when he sticks his neck out.  I did not dislike joining the profession of law because I knew nothing of the profession.  In fact, I had not got into a gown except, when I hired one for my convocation.  The only lawyer I saw at close quarters was our neighbor, and that, when he was not in his professional robes.”

Hard-work made him a successful lawyer, a dignified Judge and a designated Senior Advocate after retirement.  About the practice of engaging seniors, he says “As far as a junior is concerned, if clients suggest engaging senior lawyers, he is relieved and happy, for it releases considerable tension and automatically assures higher junior fees.  The junior has only to study the case, prepare the notes, arrange the facts in a chronological order and refer to the statutory provisions and note the relevant decisions.  There is nothing for the junior to lose and if the case is lost, the junior is not faulted and his prospects at the bar are not affected ”.

Interestingly he had a different concept about engaging adhoc seniors while saying “What I propose to state here is my experience in engaging ‘adhoc’ seniors in particular cases, when occasionally at the instance of the clients, seniors had to be engaged and the clients themselves chose the senior.  The advantage of engaging such seniors eased the burden of the juniors, with his prospects at the bar in no way affected”  (Life’s Likes and Dislikes).

And the book taught me a lesson.  Quotations are useful to escape from others. But, customize your likes and dislikes to enjoy your life !. 

To a realist like Holmes, the life of law has not been logic, but it has been an experience for Justice Nambiar. 

If Livy the oft-quoted Roman can fulfill his wish as: “Rome has grown since its humble beginning, that it is now overwhelmed by its own greatness,” I would love to repeat those words about Justice Nambiar also, to suit contemporary times. 

I may retweet, young men, hear an old man to whom old men hearkened when he was young……

Performers Rights in India : Rebirth or False Dawn ?

(By Dr.Raju Narayana Swamy, IAS)

The Background

Performers rights were introduced in the Indian Copyright Act under Section 38 by an amendment in 1994. The measure was starkly distinct from attempts made initially in UK by making a separate legislation for the performer.ⁱ If any of the persons mentioned under Section 2(qq) (including an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance) appears or engages in a performance, certain “ performers rights” accrue to him. Performance has been defined in Section 2(q) as meaning any visual or acoustic presentation made live by one or more performers. The absence of the use of the word cinematograph or audio visual for any reference to them is noteworthy as it appears to be completely excluded from the coverage of the rights. The definition also limits the protection to presentation of live performances and not to recordings. It also needs to be mentioned here that though an open-ended inclusive definition has been given to the word “performer”, there is no mention of the need to meet any criteria regarding creative quality and originality. Moreover a definition of performers right has not been attempted.

The nature and boundaries of the rights that accrue are explicated by Section 38 which also stipulates the period for which the right shall subsist. Performers rights are completely independent of ownership of “works” and are categorized as a related rights, protecting the interests of those who contribute to making works available to the public as performers act as catalysts to communicate the relevant original content therein. The reason for recognizing such neighbouring rights is to ensure that transmitters are also incentivised to exist. The right governs the protection of non fixed or live performances with the proviso (viz) Section 38(4) that performers are excluded from any rights in a performance which forms a part of any audio-visual fixation or cinematograph.

Section 39 acts as an exception to the provisions of Section 38(3) which mentions acts which constitute infringement of a performers right. Section 52 deals with the fair use provisions. Reading Section 38(3), 39 and its clauses together, the special right accorded to the performer may be deduced to include:

a)   The right to make a sound recording or visual recording of the performance

b)   The right to reproduce a sound recording or visual recording of the performance

c)   The right to broadcast the performance

d)   The right to communicate the performance to the public otherwise than by broadcast.

Section 39A was introduced extending the application of Sections 18 & 19 to performances. It needs to be mentioned here that Sections 18 and 19 provide for assignment of copyright and the inalienable equitable right royalty of the authors with the assigning upon exploitation of the work. To put it a bit differently, extension of the same to performances implies a right royalty for performers in the event of exploitation, assignment and broadcasting of their performances. However the performers’ status vis – a-vis employer-employee relationship has gone unexplored – a jarring omission indeed. Moreover even the rights available to authors of cinematograph and sound recorders such as the right of rental have not been made available to performers. This takes away a major segment of exploitation from the purview of statutory protection.

The main reason for bringing in the 1994 amendment was to harmonise the Indian Act with the provisions of the Rome Convention for Performers, Producers of Phonograms and Broadcasting Organizations. Internationally, performance has been connoted to be a transitory activity of a human individual that can be perceived and is intended as a form of communication to others for the purpose of entertainment, education or ritual.ⁱⁱ International instruments that have lead to the formal incorporation of the concept include – apart from the Rome Convention – TRIPS and the WIPO Performances and Phonograms Treaty (WPPT), 1996. It needs special mention here that the shifting of forum from the ILO to intellectual property right treaties is a significant historical moment in the evolution of performers right.ⁱⁱⁱ

Moral Rights – A Glaring Lacuna in the 1994 Amendment

A glaring omission from the array of rights granted to the performer in the 1994 amendment is moral rights. Though the moral right of integrity and the right of paternity have been granted to the authors u/S.57, there is no mention of the extension of rights to the performer. The Manisha Koirala case ^iv wherein the lead actress Manisha Koirala prayed for injunction of the release of the movie “Ek Choti Si Love Story” has brought to public focus this lacuna. In the movie, four shots were being performed by a double, revealing some bodily exposure. Manisha’s work in the movie was distorted in such a way that it could hamper the reputation of the actress. Koirals’s contentions were based on libel and slander under the law of torts, but what needs to be highlighted is the lack of remedy available on the basis of moral rights protection which could very well have been conferred on actors under the Copyright Act. It needs to be clarified here that both the tort based actions of defamation and the right to privacy are deficient in affording an effective remedy as public performers have only a narrow scope for privacy right in their professional exploitation and as defamation depends upon the fall in reputation in the eyes of the public, but the role may very well fetch them accolades and awards despite the distortion. Mention needs to be made here that authors like J.K.Rowling once sued Durga Puja Samiti in Kolkata, who prepared the theme of Harry Potter in the panthals, but the same case does not suit the actors who do not have any remedy as such.

No discussion on moral rights of performers would be complete without a reference to the decision inPhoolan Devi v. Shekhar Kapoor and others. It shows that distortion and depiction impinging on the privacy of the performer would not be condoned unless the authorization of the performer and a proper intimation to the performer was provided. The Court also took into account the fact that the victim was not shown the film after it was made as she could have objected to the same after preview. The Court disapproved the action of the film maker in having deviated from the book on which the screenplay of the film Bandit Queen was to be based. From the performer’s stand point, any depiction beyond the role and script that was intimated to him which impinged on his right to privacy would therefore be actionable.

The 2012 Amendment and Thereafter

The legislature through the 2012 amendment to the Copyright Act furthered a pro­active change towards beneficial protection of performers wherein performers have also been accorded moral rights in the new section 38B.^v The Amendment has in fact moved the Act away from the traditional Anglo Saxon moorings to the European style of droit d’ auteur based human rights.^vi As Morgan notes,^vii the performer’s economic and moral rights have a dual function:

i)    As a set of rules that protect them against the superior bargaining power of producers and

 ii)  As a means of controlling the use of performances by third parties

After the 2012 Amendment, producers are no longer allowed to keep all the royalties to songs, lyrics or other works of arts and these rights will have to be shared with the artist who created them.

Does the Act permit oral agreements?

The Act does not permit oral agreements. In this connection, the following points need special mention:

a)   All agreements concerning performers right have to be written

b)   A written agreement which denies subsequent royalty is invalid

c)   Agreement will necessarily have to mention the duration of use, the amount of royalty, revision/extension/termination terms, territorial extent of use and the medium of use

d)   Agreement will not give the producer any right over new mediums or modes of exploitation which did not exist at the time the agreement was made.^viii

The Vinod Yesudas Controversy and the Independent Performance Question

Controversy erupted in the entertainment industry when Vinod Yesudas asked singers and organizers to pay royalties for the use of songs sung by Yesudas at public performances. The question that arose was whether the performers right does cover the right to stop imitation of a performance. Legal experts are of the opinion that this question demands a two fold answer – first that the right being prospectively applicable from 1994 leads to a scenario wherein the majority of songs sung by Yesudas remain unprotected and second that the word imitation encompasses only a direct or indirect copying from the fixation and not anindependent creation. However, the episode exposes not only deficiencies in the statute but also the wrong impressions nurtured by those in the entertainment industry.

Section 39A: Prospective, Retrospective or Retroactive ?

One of the classic debates surrounding Performers Right is whether Section 39A which provides for application of Sections 18 &19 to performers as well (inalienable right to receive royalty)in case of assignment, use and broadcasting of the qualifying performance for commercial uses is applicable prospectively, retrospectively or retroactively. As is clearly discernable, no retrospective application can be suggested due to the sheer number of claims from prior 2012 which would come up. But the question of unauthorized reproduction of performances recorded prior to 2012 which are reproduced or broadcasted post the amendment points out the need for a retroactive interpretation. The word retroactive, it must be mentioned here, has been defined as “extending in scope or effect (of a statute, ruling etc.) to matters that have occurred in the past...” ^ix and has been construed by the Apex Court to be a subset of retrospective. The Court has stated^x that retrospective means looking backward whereas retroactive refers to creation of new obligations and duties upon transactions or considerations already having taken place in the past upon performance of a particular new cause of action. This construction is relevant in the context of performers. There seems to be no reason not to provide royalties to singers whose labour was recorded prior to the amendment, but continues to be exploited for commercial uses. By interpreting a statute, the inhibition against retroactive construction is not unalterable and varies secundrum materium.^xi To put it a bit differently, a beneficial construction of the statute along with the need to conform to the principal policies laid down by WPPT dictates that Section 39A must apply retroactively.^xii

Controversies on the term “Live.”

The word “live” in the definition of performance u/s 2(q) has been the subject of major controversies. Though Explanation 3 of Rule 68 in the Copyright Rules provides that the definition of “live” includes performance given in a studio, the Delhi District Court restricted the meaning of live to only those performances made before an audience or in a concerted atmosphere be it in a studio or otherwise.^xiiiThis strict literal rule of construction without any application of mind which goes against the principle of purposive construction of a statute has been fortunately rejected by the Delhi High Court in Neha Bhasin v. Anand Raj Anand as it goes against the purposive nature of performers rights.

The Court held that whether the performance is recorded in the studio or in front of an audience for the first instance, both will be called live performance and if anyone uses such performance without the consent of the performer then performers rights will be infringed. In fact, legal experts are unanimous in the opinion that the definition of live can only be restricted to not include such performances which have parts of a pre recorded song in a new performance (mashes or remixes) or if the performance is totally/effectively computer generated (electronic music).^xv The intention of bringing in the word “live” in the definition of“performance” thus seems to be to avoid acts solely developed by the use of technology without any body-work or labour.

Dubbing Artistes and Performers Rights

The question that is usually raised in this context is “are dubbing artistes performers within the ambit of the Copyright Act 1957?” The answer is in the affirmative as Section 2(qq)
of the Act does not place any restriction on the type of performer. Anyone who can satisfy the interpretation of performance u/S.2(q) can be one, the only exception being someone whose performance is considered casual or incidental in nature in the normal course of practice of the industry with respect to cinematograph films as the proviso to Section 2(qq) explains. Thus an extra artiste or junior artiste may well fall outside this sphere, but a dubbing artiste should necessarily be a performer and enjoy performers rights. However, a majority of the Indian dubbing artistes not only suffer monetarily but also do not receive any credit/recognition for their performances. An oft quoted case is the Malayalam film Manichitrathaazhu which won Shobhana the National Award and wherein the cinephile thought that the dubbing artiste was Bhagyalakshmi, but only to realise much later – 23 years post the film release – that the dubbing was in fact done by Durga Sundarrajan, a Tamil dubbing artiste. Even internationally, there is not much of a difference as even in the Oscars there is no recognition for dubbing artistes. But the situation is different in Italy, Germany etc. Voice actors like Christian Bruckner – the German voice of Robert De Niro – for instance are well known in Germany.^xv In 2019, Italy celebrated the 11th edition of its International Grand Prize of Dubbing or “doppiaggio”. In fact in Italy, dubbing is perceived to be a “little brother” to movie making. Mention also needs to be made of a German example where dubbing artiste Marcus Off took on Walt Disney for payment of unfair remuneration. Marcus had dubbed for Johny Depp’s character Captain Jack Sparrow in The Pirates of the Caribbean series. The Berlin High Court awarded subsequent compensation of ten times the original agreed amount. This was upheld by the German Federal Supreme Court in 2017 in line with the equitable remuneration provision under the German Act on Copyright and Related Rights, 1965. According to the Court, “The amount seems reasonable especially since the plaintiff has made a significant contribution to the characterization of the central protagonist of the films through his voice acting.”^xvi India can also perhaps take a leaf out of these examples.

Closely connected with dubbing is the concept of voice - over artistes. Both are performance enhancers, but the main difference between the two is that the latter does not replace anything where as the former does. The voices used for commercial advertisements are voice-overs where as the voice used to replace an actor’s voice or a translated version would be dubbing. The death knell for these voice actors is the practice of buyouts which are perpetual assignments that mean sacrificing voice for ever^xvii along with slap-ons wherein one voice recording is used in multiple advertisements with multiple edits across multiple mediums – all unauthorised. Add to these the fact that the lack of a meaningful mechanism for royalty computation is making matters worse and the picture is complete. Moreover the ordinary voice actor is in touch only with a middle man and is thus caught in a cobweb of exploitation with often no idea as to when he will receive his payment. Discussions on the formation of a performer’s society dedicated to voice actors – which can decimate opaque nay shady transactions, better monitor usage, crackdown on unauthorized use and take up matters in Court on behalf of his members – remain at best as premises on paper. The reality is that even today the weak voice actor gets crushed against the might of the producer. Performers are neither well versed with the law nor equipped to wage a legal battle against corporate giants. The voice actor is not able to stand up and say that to ask him to choose between a lumpsum payment or a share of royalty strikes against the very fundamentals of protection accorded by India to its performers.

Performers Rights and Judicial Decisions

Performers Right in India was not a subject of judicial debate as the issue never surfaced directly before the Courts by way of litigation. It needs to be mentioned here that the Dramatic and Musical Performances Act – a pre- independence legislation was never extended to India and that hence the rulings of the Court prior to independence on the question of performers rights in the context of the said Act would not be applicable to the Indian subcontinent. Even if the ambit of Article 372 of the Indian Constitution is extended to pronouncements of the Courts from UK prior to independence, still none of the case laws in UK have discounted the existence of common law property rights in intellectual creations other than those entities specifically enumerated by statute.

The only reported occasion wherein the issue was dealt with by Courts was once in 1977 as a self confessed obiter^xviii and then in 1978 in the case filed by film actor Devanand.^xix The call of Justice V.R. Krishna Iyer in the former case was for the extension of copyright protection to performers. The learned Judge pointed out the neglect that the performing artiste in the music industry was suffering in comparison to music composers and lyricists who were protected and benefitted from the statutory provisions. The IPRS case did not categorically decide on the question as to whether performers had a right under the Copyright Act. Justice Iyer only lamented and wished for a legislative enactment. Thus IPRS is not a precedent to be taken into account to decide the question of existence of performers protection within the four corners of the Copyright Act.

As regards the case Fortune Films v. Devanand, the issues revolved around the rights of remuneration and distribution with regard to the film Darling-Darling starring Devanand. The cine artiste contended that by reason of an agreement, the copyright in the motion picture was to vest in him subject to the condition of payment. According to him, the performance of the artiste was covered by the words “artistic work” and “dramatic work” in Sections 2(c) & 2(h) of the Copyright Act. The appellant producers on the other hand contended that the copyright in the motion picture was not to vest in the cine artiste. The Court examined the contention of the producers that such a copyright in the work of the performer was not recognized under the Indian law of copyright. The Court discounted the possibility of performance coming within the parameters of the term artistic work as it was exhaustive in the five categories that it included. As far as eligibility within the definition of dramatic work,the Court was obstructed by the fact that there was an express exclusion of the cinematographic film in the definition of the term “dramatic work”. Thus the Court felt that it could not recognize the performance of an actor as a work that is protected by the Copyright Act. To put it a bit differently, the ratio decidendi of the case was that an actor has no right to control the use of his performance in the film. The actors were given a fee for their performance and after that the producer was free to use their performance in whatever way they wish to use it. This position continued till the 1994 amendment.

One of the intriguing aspects of the Devanand case that needs special mention here could be the decision of the Court to disallow the request for Certificate of Appeal. Though no reason was adduced, it was merely stated that the entire case turned upon the question of interpretation of the contracts and therefore there arose no reason for the Certificate of Appeal. This is astonishing considering the fact that the High Court did explore the possibilities and came upon certain findings that by no yardstick can be considered as obiter.

Various restaurants and music venues gain immense commercial benefits and have a huge customer base because of the kind of music which they play. This results in direct commercial benefits to these venues due to the skill and labour invested by the singers and performers of the musical work used, who are accorded no benefit for the usage. Mention needs to be made here of a recent suit filed by the Indian Singer’s Rights Association.^xx

against a bar and restaurant operating at the Metropolitan Mall in Pushpa Vihar, New Delhi. The Court came to a conclusion that the exploitation of the performances of the members of the plaintiff society by the defendant (which was playing the plaintiff’s members performances in its bar and restaurant without obtaining the Performer’s Rights Clearance Certificate and without payment of royalties to the plaintiff) is a violation of the Right to Receive Royalty of the performers and thus constitutes an infringement of the aforesaid right of the members of the plaintiff society u/S.38A of the Copyright Act. Thus a decree of permanent injunction was issued.

In the landmark case Super Cassettes Industry v. Nirulas Corner House (P) Ltd,^xxi the Court opined that Nirulas being a hotel and the display of songs, videos etc being a manner of “communication to the public”, the balance of convenience prima facie lay in favour of Super Cassettes and hence a case of infringement had been made out. Further the decision of Indian Performing Rights Society v. Jayaram Mani by the Delhi High Court brought an action against the defendant operating an auditorium whose liability arose as the owner of the premises impose a condition on the organizers of events where by a licence be obtained from IPRS. Similarly in the matter of IPRS v. Hello FM Radio, an injunction was granted by restricting Hello FM Radio from playing music without obtaining a licence from IPRS. In ISRA v. Nightfever Club and Parlor^xxii
open execution of tunes of the individuals at the defendant’s club and lounge without the consent of the plaintiff was held to be infringing upon the performers rights of the plaintiff. The case was unique in that recorded forms of the melody were being played rather than someone playing out the tunes live.

Mention also needs to be made here of the decision of the Delhi High Court in Super Cassettes Industries v. Bathla Cassette Industries^xxiii in which it was held that copyright and performers rights are two different things and that in case the song is rerecorded then the prior permission of the original singer is required. A debatable decision worth mentioning here is that of the High Court of Madras in Thiagarajan Kumararaja v. Capital Film Works^xxiv
wherein it was held that the dubbing right itself belongs to the producer.

Remedies

A performer may avail himself of civil and criminal remedies in case his rights are infringed upon. Civil remedies may include obtaining a temporary or permanent injunction. Criminal remedies may include imposing a fine on the infringer and jail sentences that may extend up to three years. The Court may also provide the right to search the defendant’s premises through an order called the Anton Pillar order.

Conclusion

Performer’s right fully fits in to the four corners of the discourse on the philosophy of IP Law. The theories that have substantiated property rights for intellectual creation are logically and harmoniously applicable to performer’s creations as well. The Lockean concept of Just Deserts and the labour theory are more relevant in the case of performer’s rights rather than copyrights.^xxv The discord and debate in this respect have now been laid to rest and almost all jurisdictions and international instruments today acknowledge the legitimacy of performer’s aspirations. The uncertainties are now confined to issues of objectivity and the manner of administering these rights. The momentum in this metamorphosis is still a continuing one that can never been negated. However, the customary notion in the film industry is that of personnel rendering a service for the consideration of money.

In the Indian context, the 2012 amendment was an honest attempt to protect performers right, but still the legal structure for protection of these rights in India is feeble and underdeveloped when compared with laws in many other countries. The artistes in India are often victims of oral stress and contracts based on the word of mouth, misrepresentation, manipulation and fabrication of documents as well as wrong statement of accounts. The brunt in this regard is largely borne by those in the lower rung of the ladder – accompanists, folk artists and the like. They even have to bear the ignominy of seeing somebody else take credit for the work besides problems like non payment of dues. Even the super success of a song need not bring in financial profits to the singer. Add to these the problems caused by development of technology making it possible to fix a live performance and use the recording for making more records for commercial use. The task of controlling the uses made of these recorded performances militates against performers and may even lead to a scenario of technological unemployment of performers. The minimum safeguard that the legal system must afford him in this regard is protection from “bootlegging” by ensuring that his live performance is not fixed in a tangible or material form without the performer’s consent and not broadcast or publicly performed without his consent. But even this hope often remains a dream.The rise of OTT platforms has created a new need to reinvent performer’s rights. The percentage of revenue received by performers from online streaming in the form of royalties against their performers right is significantly lower when compared to what they receive from sale of hard copies of their albums. Put it a bit differently, online streaming giants are eating into performers rights. The suggested solution, namely bringing changes to the payment mechanisms of streaming services, still remains a premise on paper.

India has to take a leaf out of the German Copyright Act (Urhg) where u/S.32(a) performers (such as actors and dubbing artistes ) can be considered as authors provided that their creative contribution to a work amounts to an intellectual creation in its own right. The statute in India should be amended to specify either in the provisions or by delegation to a state appointed authority like the Copyright Board the right to take a decision regarding the uses and the rights for the same depending on the contemporaneous commercial utility and larger public interest. Another lacuna in the Indian context is the absence of the provision of right to publicity. The identification of a performer by some distinctive trait in any subsequent work - be it by name, likeness, voice or mannerism – should ideally result in an infringement of his right of publicity. In this regard, a guiding light is the decision of the US Court in Hoelan Lab Inc v. Topps Chewingum Inc. that the right to publicity also protects the “unauthorised commercial use of a public figure’s image”. In Muller v. Ford Motor Company and Lahr v. Adell Chem Co., performers were protected against imitations of their voices as the defendants in both cases were using the imitations to sell particular products. This is in striking contrast to the Indian cases (RR Gopal and Phoolan Devi in particular) which extensively deal with the right to privacy but do not even in passing extend it to a public figure’s image.

A reform which can perhaps be thought of is delinking performers protection from copyright protection and treating performers right as independent IPRs. Performers must only have right over that part of the performance to which they alone have uniquely and distinctively contributed – their voice and imitation, method of dialogue, delivery etc. They can have no rights over scripts, directions, costumes and music arrangements. After so recognizing performers rights as a separate category, they have to be granted sui generis protection – implying among others that performances in the public domain are protected against free and unrestricted exploitation. Needless to say, this will be a proactive step forward towards giving performers in India their due – a stronger and all encompassing performer protection regime.

References

1.   Understanding Copyrights and a Related Rights, World Intellectual Property Organization https://www.wipo.ing/edocs/pubdocs/en/wipo-pub-909-2016.pdf

2.   Performers rights in International and European Legislation: Situation & Elements for Improvement, Aepo Artis, December 2014,https://www.aepoartis.org/usr/files/di/fr/2/AEPO-ARTIS-study-on-performers-rights-1-December-2014-FINAL-201611291138.pdf3. Akshat Agrawal, Who Gets Paid for the Music You Listen To? Revamping Music And Copyright in India (Part-I)Spicy IP(December 9,2020)https://spicyip.com/2020/12/who-gets-paid-for-music-revamp-music-copyright-india-part1.html.

Foot Notes

i. Performers rights did not exists in any jurisdiction around the world until the advent of the Musical Performers Protection Act 1925 in the U.K. It also needs to be mentioned here that in the celebrated case of Norowzian v. Arks, the English Courts recognized that acting in an advertisement film is a dramatic work that is capable of an independent copyrightable existence.

ii Morgan, International Protection of Performers Rights(Hart,2002), Chapter 2, drawing on Schechner, Performance Theory (Routledge, New york, 1988).

iii. Owen Morgan, International Protection of Performers Rights 64 (2002).

iv. Manisha Koirala v. Shashilal Nair.

v. 38B. Moral rights of the performer.--The performer of a performance shall, independently of his right after assignment, either wholly or partially of his right, have the right,--

(a) to claim to be identified as the performer of his performance except where omission is dictated by the manner of the use of the performance; and

(b) to restrain or claim damage in respect of any distortion, mutilation or other modification of his performance that would be prejudicial to his reputation.

vi. Prashant Reddy, The Background Score to the Copyright (Amendment )Act 2012,5 NUJS L.REV,469-527,514(2012).

vii. Owen Morgan, International Protection of Performer’s Right 64 (2002).

viii. Rohan Cheriyan Thomas, The Bewildering Predicament of Voice Actors in India:
A Performer’s Right Tragedy, Indian J.Intell. Prop.L(2020)pp127-149.

ix Black’s Law Dictionary.

x. Shanti Conductors v. Assam State Electricity Board (2019 (1) KLT OnLine 3359 (SC) = (2019) SCC Online SC 68,58 citing Jay Mahakali Rolling Mills v. Union of India (2007 (3) KLT OnLine 1135 (SC) = 2007) 12 SCC 198).

xi. Barber v. Pigden (1937) All ER 126(1973)1 KB664(CA)(Scott, L J).

xii. Akshat Aggarwal, Interpreting “Performers Rights” in the Indian Copyright Act to Appro-priately Provide for Singers Rights, Journal of Intellectual Property Rights Vol.26Jan.2021, pp5-13.

xiii. Sushila v. Hangama Digital Media Private Limited.

xiv. Richard Arnold, Performers Right,2015 (Sweet and Maxwell ed) 2.26.

xv. Emily Manthei, Film Dubbing as High Art in Germany, Deutsche Welley(May 24,2019)https://www.dw.com/en/film-dubbing-as-high-art-in-germany/a-48862319.

xvi. Dr.Enox Christoph, Dr.Stefan Lut Je and Dr. Bensinger Viola, Update:Berlin High Court Decision granting subsequent compensation for Johnny Depp’s Dubbing Actor in “Pirates of the Caribbean” Becomes Final, Lexology (April 28,2012) https://www.lexology.com/library/detail.aspx?g=7eeb38de-a7c8-481b-962c-4ec2be6cc1ae.

xvii. The legal position is that no buyout can prevent equitable remuneration.

xviii. IPRS v. Eastern India Motion Pictures Association AIR 1977 SC 1443.

xix. Fortune Films v.Devanand (AIR 1978 Bom.17).

xx. One of the first copyright societies to be registered by the Central Government after the 2012 amendment.

xxi. 2008 (37) PTC 237( DEL).

xxii. Cs (os) No. 3958 of 201.

xxiii. 107 (2003 )DLT 91.

xxiv. 2018 (73) PTC 365 (MAD).

xxv. Locke J.,”Labour” (published 1693) in M.Goldie(ed),John Locke : Political Essays (CambridgeUniversity Press, 1997) pp.326-328.

A Comparative Study of Two Provisions of C.P.C.

Order XXXIII Rule 1 C.P.C.and Section 51(b) C.P.C.

(By P.B.Menon, Advocate, Palakkad)

Order XXXIII Rule 1 C.P.C. states “Not possessed of sufficient means to enable him to pay court fee”.

Section 51 proviso(b) C.P.C. states “has or has had since the date of the decree the means to pay the amount of the decree or some substantial part thereof ”.

The only difference used in these provisions is, in Order XXXIII Rule 1, the same speaks of “sufficient means” whereas in Section 55 proviso(b) the word used is “means”,

In  2014 (3) KLT 324, in interpreting Order XXXIII Rule 1 C.P.C. by the Hon’ble Judge, relying on 2011 (2) KLT OnLine 1102 (SC) = AIR 2011 SC 3221 holds in determining a party’s indigency status in a civil proceeding, sufficient means in O.XXXIII Rule 1 contemplates the ability or capacity of a person in the ordinary course to raise money by available lawful means to pay court fee. The court takes into account petitioner’s husband’s financial status as well, and holds combined financial asset can be taken into account in deciding indigency status of the petitioner. When the Hon’ble Apex Court has widened the scope of the expression “sufficient means”, why not the same theory be made applicable to the word “means” in Section 51 proviso (b) to judgment debtor who pleads no means, and help the poor decree holder to realise the decree amount. There will be affluent near relatives or others to help him out to evade arrest of judgment debtor and being send to civil prison. True the word “sufficient’ is not in S. 51 C.P.C., but that will not make any difference, for when the statute use the word “means”, it naturally mean such sufficient means to pay off the decree debt or some substantial part thereof. Provisions of law while being interpreted by courts should give a wider interpretation as done by the Hon’ble Supreme Court to do or serve social justice. By adopting that course justice could be rendered to a poor decree holder who has parted with his hard earned money and helped the judgment debtor at the time of his distress. Instances are not wanting in interpreting the provisions of statute so as to do social justice. In 2016 (3) KLT 322 (F.B.) the court holds that the indigent person need not travel all the way to High Court to present an appeal by an indigent person and that his counsel can do it. The circumstances and condition of those appellants in that case are specifically mentioned in the facts of the case.

I am of the view, whether right or wrong, the readers can decide for themselves, that the word “means” used in S.51 C.P.C. must also be given a wider meaning in the interest of social justice.

“Good for the Goose -- Good for the Gander”

(By K.Ramakumar, Senior Advocate, High Court of Kerala)

“Reasons are the link between the facts found and the decision taken. It is this process of reasonings, that is to be tested in judicial review. If reasons or the like is missing then
it is unreasoned order and unreasoned order is in violation of basic principle of natural justice and thus have to be avoided.”(Sandeep Kumar Bhagat and Anr. v. C.M.D., BSNL & Ors. (2007 (3) KLT OnLine 1141 (Pat.) = AIR 2007 Pat.180 para.11).

In Mahindra and Mahindra Ltd. v. The Union of India & Anr., the Supreme Court of India,held that;

“Every quasi-judicial order must be supported by reasons. That is the minimal requirement of law laid down by a long line of decisions of this Court ending with N.M.Desai v. Textiles Ltd., Civil Appeal No. 245 of 1970, dated 17.12.1975 and Siemens Engineering Co. v. Union of India (1976 Supp.SCR 489 : (AIR 1976 SC 1785).”(See 1976 KLT OnLine 1054 (SC) =  (1979) 2 SCC 529).

The Apex Court has declared in numerous decisions that absence of reasons itself will vitiate an order. This has been extended to administrative orders, judicial orders and quasi-judicial proceedings. Denying reasons, it has been held is also violative of the principles of natural justice. The right to know,entrenched in our jurisprudence is too deep to be ignored. The superior courts in India had been reminding lesser functionaries, the importance of recording reasons in their decisions, orders, judgements etc.

See the illuminating decision of our High Court on the point in Thadevoos v. Kochi Corporation reported in 2022 (1) KLT 65.

Does not this principle apply to its makers, the highest forum in our judicial system. The House of Lords (when it existed) is infallible because it is final,it is not final because it is infallible.The same is attributed to our Apex Court as well which is one of the most powerful courts in the whole universe.  Not even the U.S. Supreme Court or the present Supreme Court of  England command powers similar to Article 142 of the Constitution of India which the Supreme Court has held empowers it even to pass orders contrary to statutory law.

Ironically the Supreme Court of India, itself passes numerous orders without indicating any reason whatever therein. Majority of Special Leave Petitions are rejected either with a one-word order “dismissed” or “we are not inclined to entertain this petition”.

The hapless litigants approach the highest court of the country with great hopes and expectations. They however are not fortunate enough to be told why the special leave petitions are rejected though it is mandatory that all special leave petitions are supported by questions of law needed to be decided by the Supreme Court of India.

Is it not therefore mandatory for the Supreme Court of India  to tell the litigant why they are not interfering and how they are not impressed with the questions of law formulated for adjudication before the Supreme Court often even against Full Bench decisions of the High Courts?  Yet the principle repeatedly reminded by that court, that every order should be supported by reasons is not extended to that court at all. This is likely to be animadverted as aberrant and anomalous alike. Right to know has been declared to be part of a fundamental right.  Is it just, fair or proper to violate the principles of law declared after great deliberations and input of large amount of thought by constitution benches of the Apex Court.

It is therefore submitted with all respect that like every other judicial order the order of the Supreme Court disposing of a special leave petition should also contain reasons that persuaded the court not to grant the leave sought for or reject the application for Special leave. To keep the litigant in dark why the doors of the highest court of justice in the country are not open to him is to put it most mildly inconsistent with all sense of fair play formulated by that court itself.  The Apex Court therefore must necessarily have a re-thinking on the very issue.

It is not forgotten that on Mondays and Fridays, earmarked as Miscellaneous days by the Supreme Court, large number of Special Leave Petitions are required to be dealt with by that court. That hardly provides excuse for avoidance of stating why, approach to that court by a litigant is shut out to him. This is particularly so because in various rules, the expression “for reasons to be recorded” is highlighted. The quantity of the special leave petitions should in no manner affect the quality of their adjudication by the Apex Court.

Tail Piece: The irrepressible,late lamented Shri.C.K.Daftari with his gracious gait entered one of the court halls of the Supreme Court and was about to take a seat in the front. The judges were dealing with the question whether rummy was a game of gamble chance or game of skill. One of the judges put a question to Shri. Daftari; “what is the difference between the expression gamble and skill.“Pat came the reply“ we do not have to go even out of this court to know what is a gamble, ‘A special leave petition’”. The entire court burst into laughter.

When can the Registrar Order Inquiry/Inspection ‘On His Own Motion’?

(By R. Muralidharan, Puducherry Civil Service Officer (Retired),
                                     Director,Catalyst (The Training People)

Time and again irregularities of serious nature in the working of co-operative societies might come to the notice of the Registrar of Co-operative Societies, making it desirable or necessary for him to hold an all-embracing inquiry into the constitution, working and financial condition. The object of inquiry is to determine the truth or falsity of certain facts in order to take further action thereon. An inquiry may be necessary if there are serious defects in the accounts of the society; if the committee is working prejudicially and if the interests of the minority members are not safe in the hands of the majority. It is a deterrent against mismanagement, restores confidence in the minds of all concerned and helps the employees to set right everything before it is too late.

The main object of inspection is to inspire confidence in the mind of the creditor and to ensure safety of the money lent to or deposited in the society. He can, if need be, move the Registrar to inspect the books of the society and to inform him the result of any such inspection. All State Co-operative Acts contain provisions authorizing the Registrar to conduct such inquiry/inspection.

Section 81 of the Tamil Nadu Co-operative Societies Act, 1983 clothes the Registrar with the power to hold an inquiry. He may hold an inquiry on his own motion or direct some person authorized by him to hold such inquiry. He shall institute an inquiry on application of a majority of the board of not less than one-third of members or on the request of the financing bank or of the District Collector. Section 82 of the said Act empowers the Registrar to inspect and investigate the affairs of a society in general or investigate into any aspect of its working in particular. He may hold inspection and investigation on his own motion or an application of a creditor.

Similar provisions are found under Section 64 of the Karnataka Co-operative Societies Act, 1959 empowering the Registrar to hold inquiry. Section 65 of the Act gives power to the Registrar to order inspection of books of a co-operative society.

Section 65 of the Kerala Co-operative Societies Act, 1969 empowers Registrar to hold an inquiry on his own motion or on an inquiry report of the Vigilance Officer or on a report of the Director of Co-operative Audit or on an application by the majority of the members of the committee or on application by the apex society or financing bank or on an application of a society to which the society is affiliated. Section 66(2) of the Act invests power on the Registrar to conduct supervision and inspection on his own motion or on the application of a creditor of the society.

The objective and purpose of this article is to deal and delineate the case laws to determine the requirement of law and the basis of holding inquiry/inspection by the Registrar on his own motion and how to form such an opinion and whether he can rely on the information received from other sources for such suomotu action.

To initiate suo motu proceedings, there should be some material

It is left entirely to the discretion of the Registrar to order an inquiry or not. He may issue this order on the basis of information he gets. The question whether there is sufficient reason for holding an inquiry is not subject to judicial control since the function under this section is administrative in character.

* The High Court of Madras in VedaranyamTaluk Co-operative Housing Society Ltd., vs. Registrar of Co-operative Societies (Housing), 2001 Writ L.R. 354 held that when the authority competent under the Act to order inspection under Section 82 of the Act, when it is brought to the notice of such authority that the societies had acted in a manner detrimental to the interest of the members, the depositors, the creditors and generally, there is nothing illegal in directing inspection under Section 82 of the Act.

 * The Division Bench of Karnataka High Court in the Vyavasaya Seva Sahakari Bank Limited v. The State of Karnataka & Ors. (2006 (1) KCCR 77)found that on an information furnished by the Lokayukta, the Deputy Registrar, after proper application of mind, has proceeded to initiate inquiry proceedings under Section 64(1) of the Act. The inquiry is held to be in order.

* The Karnataka High Court in Shankar Rao v. State (1983 (2) Kar. L.J. 263 )clarified that ‘on his own motion’ should be understood to mean at his own instance. All that is required is that he should be satisfied that there are irregularities in the society on account of which investigation is necessary. If on the report of the Deputy Registrar, the Registrar has come to the conclusion that the inquiry into specific matter listed in the order is necessary, it is a step-in-aid for him to exercise his powers under Section 68 to issue suitable directions to officers and directors of the society, if found necessary. Such action cannot be said to be without either the authority of law or in excess of the jurisdiction vested in him.

Subjective satisfaction is sine quo non

Even where the Registrar is clothed with the power to order inquiry or inspection on his own motion, he should first consider the real necessity of holding such inquiry or inspection. Without forming such an opinion objectively, order such inquiry or inspection would be a colourable exercise of power.

 * The question before the High Court of Madras in Viswanathan v. The Deputy Registrar of Co-operative Societies, Madurai & Anr., W.P.(MD)No.7254 of 2014 dated 4.7.2014 : legalcrystal.com/1168460 is whether the Registrar is justified in ordering an inquiry under Section 82 exercising suo motu power based on a complaint received from a director of the society. From the close reading of Section 82, it can easily be discerned that the Registrar on his own motion or on the application of a creditor of a registered society, can order for an inquiry under Section 82 of the Act and he can either himself inspect or direct any persons authorized by him to inspect the affairs of the registered society. It is the submission of the petitioner that the Registrar has ordered an inquiry only based on the complaint given by one of the directors and therefore, the impugned order passed by the first respondent ordering for an inquiry cannot be construed as proceedings initiated on his own motion.

To initiate suo motu proceedings, there should be some material. In the instant case, the complaint was given by one of the directors of the society. Therefore, it cannot be said that since the first respondent has initiated proceedings based on the complaint given by one of the directors, he has not acted on his own motion. At the same time, as per Rule 104(3) the Registrar, before ordering for an inquiry or investigation, shall examine whether there is any need to hold an inquiry or make an inspection or investigation, as the case may be. Before ordering for an inquiry under Section 82 of the Act, the Registrar must arrive at subjective satisfaction with regard to the necessity of holding an inquiry or inspection or investigation. But, in the instant case, the first respondent, without examining the necessity for holding an inquiry, directly ordered for an inquiry under Section 82 of the Act by appointing the second respondent to inspect the society and hence the impugned order passed by the first respondent was not legally sustainable.

* The axiomatic question before the Division Bench of the Kerala High Court in Melukkara Service Co-operative Bank Ltd. v. Joint Registrar (General), District Co-operative Society (2018 (2) KLT 640),was as to the nature of the consideration that the Registrar should first commit himself before ordering an inquiry under Section 65 on the ground that he is satisfied that it is necessary to do so.

Section 65(1)(a) invests the Registrar with great powers while ordering an inquiry under its mandate, to the working of the society. The words ‘on his own motion’ in sub-clause (a) are not quantified in any manner except that in the last portion of sub-clause (f), it is mandated that he shall order an inquiry only if he is satisfied that it is necessary to do so. A combined reading of these two provisions would make it ineluctable that the Registrar can order an inquiry into the working of a society on his own motion; provided he is first satisfied that it is necessary to do so.

Words ‘that it is necessary to do so’ in the last portion of Section 65(1) clearly postulates that the power to be exercised by the Registrar has to be done with necessary care, caution and circumspection. It is not permissible on the part of the Registrar to order an inquiry under Section 65 merely because he is competent to do so. The powers vested with him being virtually plenary in nature, the requirement of him being subjectively satisfied that it is necessary to do so is statutorily in-built. The requirement of being personally satisfied before an inquiry is ordered by the Registrar is implicit in the provision and, therefore, it is essential that before making an order under Section 65, to cause an inquiry into the working of the society, it is necessary and exigent for the Registrar to be first satisfied that such an inquiry is required and essential.

Should the information be independently sourced?

The committee in office often attempts to stall the order of inquiry or inspection on the ground that the Registrar has invoked the suo motu power based on the report of his subordinate officers and hence such order is perverse and without jurisdiction.

* Order for inquiry under Section 65(1) of the Act is under challenge before the Kerala High Court in K.Sivasankaran v. Joint Registrar of Co-operative Societies (General) & Ors.  W.P.(C) No.2474 of 2022 dated 2.2.2022 by the President of the Chendamangalam Service Co-operative Bank Ltd.

An inspection was conducted by the Unit Inspector attached to the office of the Assistant Registrar (General), Chenthamangalam at the society. On such inspection, he reported various irregularities regarding grant of loan. The loan applications were found incomplete and there was no repayment in the accounts. Properties situated beyond the area of operation of the society were seen accepted as security. It was also noticed that loans were granted without due execution of Gahans (mortgage). The Joint Registrar, on reference to the reports and the appended documents, on being satisfied that the issues involved require a detailed inspection has passed the impugned order.

On the materials available, the Joint Registrar was prima facie satisfied that an inquiry is necessary. The material indicates that the satisfaction arrived at cannot be stated to be baseless or unfounded. Resultantly, the challenge against the impugned order of inquiry fails. Writ petition is accordingly dismissed.

* Finding fault on the findings of the learned single Judge (supra), writ appeal was filed by the society in K. Sivasankaran v. Joint Registrar of Co-operative Societies (General) and others, W.A. No. 232 of 2022 dated 24.2.2022 :2022 LiveLaw (Ker) 99.

The appellant contended that in the absence of any of the reports and applications referred to in clauses (b) to (f) of Section 65(1) of the Act, an inquiry under Section 65(1) could be ordered by the Joint Registrar only ‘on his own motion’ as provided for in clause (a) of Section 65(1) on his subjective satisfaction that it is essential to order an inquiry. It was argued that the order does not disclose the materials independently sourced by the Joint Registrar and the said order was issued solely based on the reports of the Unit Inspector, which is per se illegal and unsustainable. Reliance was placed on MelukkaraService Co-operative Bank Ltd. v. Joint Registrar (General), District Co-operative Society (supra), in support of the said contention.

The circumstances enumerated in clauses (b) to (f) are absent in the case on hand and the impugned order is issued by the Joint Registrar invoking the power under clause (a).The argument advanced by the appellant is that when an inquiry is ordered by the Joint Registrar invoking clause (a) of Section 65(1), the same shall not be based on materials provided by others, but it shall be based on materials independently sourced by him.

A Full Bench of the High Court of Karnataka in Bangalore Grain Merchants Association v. The District Registrar for Societies & Ors. (2001 (1) KCCR 292), had occasion to consider the meaning of the expression ‘on his own motion’ in the context of the enquiry provided for under Section 25(1) of the Karnataka Societies Registration Act, 1960. It was held in the said case that the expression ‘on his own motion’ although means ‘on one’s own initiative’ and implies application of mind and formation of one’s own opinion, it does not matter how and from what source he gets the information and it does not mean that the authority conferred with such power should eschew from consideration the information or material furnished from external sources and should look into the information collected by him on self-effort. It was also held in the said case that the only requirement of law is that on the basis of information and materials gathered either on its own initiative or received from other sources, the competent authority has to come to a conclusion on an active application of mind, whether to take up the enquiry or not, and that he shall not act mechanically at the behest of others without independent application of mind.

After holding that the expression ‘on his own motion’ is synonymous to ‘suo-motu’, the Full Bench has also quoted the observations made by the Division Bench in Muslim
Co-operative Bank Ltd v. Assistant Registrar of Co-operative Societies, ILR 1990 Karnataka 3705 : 1990 (2) Kar. L.J. 311 : AIR 1991 Kar 243. The Division Bench has brought out the dis-
tinction between institution of suo motu inquiry and ordering inquiry based on demand thus:

“The Registrar of Co-operative Societies has got power to initiate an inquiry into the co-operative society suo-motu. This power is independent of not only the power but also the duty to hold an inquiry when it is demanded in writing by the requisite number of persons under Section 64(1). An inquiry into the affairs of the a co-operative society instituted by the Registrar pursuant to a complaint made by one of the members falls within powers conferred on the Registrar under Section 64(1) and is not violative of Section 64(2). He can hold an inquiry by himself or by a person authorized by him. As the Deputy Registrar is the competent authority to institute an inquiry under Section 64(1) he can authorize a person to hold the inquiry. The difference between the institution of inquiry suo motu on written information or written complaint given by one of the members and by requisite number of members   of   managing   committee   or   the   members   entitled   to demand inquiry under Section 64(2) is that there is no legal compulsion on the part of the Registrar to institute inquiry in the former case, whereas in the latter case, he is obliged to do so.”

Similar view has been taken by the High Court of Kerala in K.G.Sadasivan v. Joint Registrar of Co-operative Societies (2007 (4) KLT OnLine 1225).The question considered in that case was whether the Registrar would be justified in invoking the power conferred on him under Section 66(2) ‘on his own motion’, on the basis of a complaint received by him and it was held in the said case that it is not within the province of judicial review to search for the source of the material which triggered a suomotu action. It was clarified that if a member of a society makes a complaint and if by that complaint, the Registrar is notified of certain fact situation which triggers action under Section 66(2), that procedure is only one which could be treated as the Registrar acting on his own motion.

That apart, having regard to the object of the inquiry under Section 65(1), viz., to protect the interests of the society and its members, if it is held that a competent authority exercising the power under Section 65(1) could order an inquiry under that provision only based on independent materials sourced by him and shall not act based on materials provided in the complaints received, or the reports called for on complaints, or on reports submitted by subordinate officers, having regard to the large numbers of societies placed under the administrative control of the Registrar, Section 65(1) would be a dead letter, incapable of enforcement and the object of the same would be defeated.

A reading of the impugned order would indicate beyond doubt that it is not a case where the Joint Registrar has acted mechanically on the reports filed by the Unit Inspector, but it is a case where on an active and independent application of mind on the reports and the various documents appended to the reports, the Joint Registrar has found that it is expedient in the interests of the Society to order an inquiry under Section 65(1) and accordingly issued the order impugned in the Writ Petition. In the facts and circumstances, the writ appeal is without merits and the same is accordingly dismissed.

Epilogue

Initiating an inquiry or inspection is one of the powers conferred on the Registrar by the statute and such power in his armory is to be invoked with great care, circumspection and circumscription. It should be a timely act by the Registrar, when the affairs of the society need such a course of action. When it is not done in time, it tantamounts to close the stable door after the horse has bolted. The errants would go scot free at the cost of the society. At the same time, indiscriminate and arbitrary exercise of such power would be counterproductive. Ordering an inquiry or inspection just for the asking or just at the drop of a hat it would erode the confidence of the members and investors in the society as they fear that something is fishy in the society. It would affect the regular flow of work of the society.

It must be remembered that ordering an inquiry or inspection is just a trigger and the Registrar should ensure that the report is received in time and the report is self-contained. Proper follow-up action is to be taken to remedy the defects and deficiencies brought out of such inquiry or inspection. Thus the Registrar is in an unenviable position. When he is right, nobody remembers, when he is at fault, no one forgets.