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Growing Indecencies or Obscenity In Cyber World And Legal Regime In India

Obscenity is a global and complex issue because it involves other related issues like decency and morality which varies from society to society. Cyber Obscenity is a threat to the internet users all over the world as there is no territorial limit which distinguishes the commission of crime between the countries. The present paper is an attempt to evaluate the law governing cyber obscenity in India and its impact on infants.

Center of attention of this research paper is that obscenity and pornography build up peer pressure among adolescence and this may lead them to perpetrate offence. The paper is an attempt to evaluate the law governing obscenity in India and recommends suitable amendment. This paper concerns with balancing the right of freedom of speech and expression with the standards of morals of contemporary society. This paper concerns to prohibit the obscenity has a tendency to deprave and corrupt those whose minds are open to such immoral influence.

Introduction
We cannot judge obscenity in isolation. It needs a broader perspective to understand the notion of obscenity. The obscenity is directly related to morality and decency. What is immoral for one may not be so for others. With the advent of information technology people are becoming power oriented day-by-day with the consciousness of their freedom forgetting their duties to maintain the moral standards and decency in the society.

Cyber Obscenity is a threat to the internet users all over the world as there is no territorial limit which distinguishes the commission of crime between the countries. Now-a-days cyber pornography has become a big industry.

Due to the global accessibility, jurisdiction problem, differences in standard of morality and law in different countries, the enforcement of law has become impossible. Obscenity and pornography often used interchangeably. USA is somehow helping India to prohibit child pornography and the central government had launched a portal where citizens can file complaints about circulation of child pornography, sexually explicit materials and online sexual abuse, leading to automatic registration of FIR and action against the offenders.

The question arises that only child pornography is a menace?

The answer is no, pornography accessible by youth on social media are equally affecting their minds in a very unpleasant way. Yes, Accessing pornography in private by infants too is a menace to the society. This difficult situation can be curb through cyber censorship notwithstanding internet censorship is a tough task for a state but not impossible to effect. The advantage of allowing internet censorship is that content which is violent, obscene, or dangerous can be immediately blocked.

This protects children from unintentionally viewing content that could be scary or harmful to them, such as the murder, decapitation videos, sexual contents below the specific age which have made their way to sites like Facebook, Netflix, InstaGram and Twitter in recent years. Obscenity is very sensitive issue all over the world yet there is no settled definition of the word obscenity under any law. What is nude art or sexually explicit thing for one person may be obscene or porn for another. Many attempts were made by different high courts to give a suitable definition of obscenity.

In English case, the court observed that the material which has the likelihood to corrupt and deprave the minds of those persons whose minds are open to such immoral influences and who may read the publication of this type. Regina v. Hicklin 18682. In the landmark judgment of Supreme Court of U.S.A reaffirmed that obscene material is not constitutionally protected. Miller V.California 19733

But in another case it was held that there should be proper inquiry whether the community whose case is in the hand have serious value in that obscene material or whether a common person would find such values in it, if taken as a whole. Pope v. Illinois19734. Obscenity on the Internet is not a common crime. Internet has provided a medium for the facilitation of crimes like obscenity or pornography, sexual offences. Cyber obscenity is the trading of sexually expressive materials within cyber space.

Research methodology
The researcher has adopted the doctrinal form of research in preparing this project. As the project is an analysis laws pertaining to cyber obscenity in India and this form of research was most appropriate.

Article 21: Indian Constitution 1950 and obscenity

Article 21 is considered to be Magna Carta of human lives, their dignity and liberty. It is termed as heart and real evolution of Indian legal framework and of Indian constitution. Article 21 of Constitution of India states No person shall be deprived of his life or of personal liberty except according to procedure as established by law”.

Article-21 Indian constitution 1950 5:

It means every human being has right to live and live with dignity, and not has existence similar to that of animals. It also means that every citizen has right to livelihood, good hygienic conditions, good standard of living. This right is stated in the, directive principles of state policy as well.

The concept can be well understood with some case laws. It was ruled by Supreme Court that right to live does not mean mere physical existence on this earth but it means to lead a dignified meaningful human life.

Maneka Gandhi v. Union of India6. It was clearly stated by court that it is fundamental right of every citizen to lead an exploitation free dignified life and it is duty of state to ensure that. This means every women is an individual human being and has right to lead a dignified free life Bandhua Mukti Morcha V. Union of India 7.

In another landmark case, It has been held holding of beauty contest is repugnant to dignity or decency of women and offends Article 21 of the Constitution only if the same is grossly indecent, scurrilous, obscene or intended for blackmailing. The government is empowered to prohibit the contest as objectionable performance under Section 3 of the Andhra Pradesh Objectionable Performances Prohibition Act, 1956.Chandra Raja Kumar V. Police Commissioner Hyderabad 8.

A person has a bundle of rights to live a dignified life. If a person is accessing pornography in private, this is a matter of privacy and he has right to access and enjoy in private until and unless it affect or contradict the right of another person. This is a matter of persons liberty to watch porn in private space.

A study 2010 study by Manjima Bhattacharjya and Maya Indira Ganesh9 which looked at womens rights, sexuality and Internet use in India, found that the Internet had emerged as an important new space for individuals to gain access to information on sexuality and reproductive health, to seek pleasure and express their sexual preferences and to claim equal sexual citizenship rights. The Internet has opened up new avenues to mobilize, organize, and explore sexual identities.

Unfortunately, a ban and criminalization of possession of pornography would likely close down this space of empowerment for women as well as harm the right to freedom of expression of all Indians and undermine womens rights in India more broadly, and this for a variety of reasons.

The proposed ban on pornography and criminalization of viewing certain types of pornography raise further important questions regarding definitions. Who will decide what is pornography and what is extreme pornography or hardcore pornography? Would the police be required to sit in judgment as to what constitutes extreme or hardcore pornography?

Considering the inconsistency between the ways in which obscenity under Section 292 10 Indian Penal Code has been interpreted by different judges, it is likely that defining something as diverse as pornography will prove even more difficult, especially for those not trained to do this work, with possibly devastating consequences for womens rights and free speech. As they are the only ones competent to take a decision as to what constitute illegitimate content, decisions on censorship should always be taken by courts or an independent judicial body.

The Indecent Representation Of Women Prohibition Act, 1986:

The Act punishes the indecent representation of women, which means the depiction in any manner of the figure of a woman; her form or body or any part thereof in such way as to have the effect of being indecent, or derogatory to women, or is likely to deprive, corrupt or injure the public morality or morals. It states that no person shall publish or cause to publish or cause to be published or arrange to take part in the publication or exhibition of any advertisement which contains indecent representation of women in any form. The Indecent Representation of Women Act,1986 11

The depiction in any manner of the figure of a woman, her form or her body or any part thereof would amount to indecent or derogatory representation if it has likely to deprive, corrupt or endanger public morality or morals.

The Indecent Representation of Women Act1986, S- 2b12:

  • The tendency to present women as a sexual object.
  • The tendency to present a women as a sexual commodity for mans pleasure, or
  • The tendency to glorify womans subordination to man as an attribute to womanhood


In spite of the law, gender concerns in the media is a serious concern today as the problems of womens portrayal in the media, have been disturb the mind of the Civil Society and an attempt is being made to curb this growing problem continued incidences of obscene depiction of women in television and in the media in general call for a debate on the need for effective laws against them and proper implementation of the existing legal provisions.

In Section 6 on penalty, the words „and with fine which may extend to two thousand rupeesshall be substituted with the words and with fine which may extend to ten thousand rupees‟ and the words „in the event of a second or subsequent conviction with imprisonment for a term of not less than six months but which may extend to five years and also with a fine not less than ten thousand rupees but which may extend to one lakh rupees shall be substituted with the words in the event of second or subsequent conviction with imprisonment for a term of not less than six months but which may extend to five years and also with a fine not less than fifty thousand rupees but which may extend to five lakh rupees.The Indecent Representation of Women Act, 1986, S-613.

Censor Board

An Israeli couple after being married the Hindu way at Pushkar Rajasthan was arrested u/s 294 of IPC for kissing in public. A fortnight later, a magistrate slapped a fine of Rs. 500/- on the couple for committing an act of indecency but later high court held that kissing in public by a married couple is not obscene Times of India Feb 2, 200914.

But my concern was kissing in television serials or movies or even more than that is also not vulgure?

The answer is yes definitely yes but still these activities are keep going and going and even people want such vulgarity to see in the movies by their favorite actors. Many times the vulgure scene was picturised in the light of need of the script without even realizing the effect of such on tender age, they want to experience such similar pleasure that might result in sexual offences.

This is the high time now we have to save our future generations from being corrupt. In Bobby Art International v Om Pal Singh Hoon the issue that came up for consideration was whether the film Bandit Queen can be banned on the ground of obscenity.

The child named Phoolan Devi was made to marry a man of her fathers age. She was stripped naked and paraded and made to fetch water from the village well under the gaze of the villagers, but no one came to rescue. To avenge herself upon her prosecutors, she joined a daicots gang, humiliated and killed twenty Thakurs of the village.

The apex court while allowing the appeal against the judgment of Delhi High court banning the film on the ground of indecency for the public exhibition held that a film that carries the message that social evil is evil cannot be made impermissible and banned for public exhibition for the same.

The scene of nudity and rape as ell the use of strong language were in aid of the theme and intended not to arouse prurient or lascivious thought but revulsion against the perpetrators and pity for the victim 1996 4 SCC 115. The Supreme Court opined that held that the question of obscenity must be seen in the context in which the photograph appears and the message it wants to convey. The Court further said that the correct test to determine obscenity would be Community Standards Test and not Hicklin Test.

Applying the „Community Tolerance Test‟ the Court held that the decisions in such cases must be taken keeping in mind the contemporary national standards and not that of a group of sensitive persons. If the society accepts the portrayal of sexual activities on the silver screen, the Court must not strike it down for the sake of a few sensitive persons. If it is acceptable to the society in general, the court must accept it too. Aveek Sarkar v. State of West Bengal16.

Certificate granted by Film Censor Board does not bar criminal courts jurisdiction to try for the offences under the cinematograph Act 1952. As held in the case of, the court is not barred from trying the case because the certificate issued under such Act is not conclusive.

The censorship guidelines under Sec. 5B of the Cinematography Act 1952

which echo the constitutional restrictions on the guarantee of freedom of expression {Art 19 2f, are broad standards that cannot be read as one would read a statute. The film certification authorities are required to be responsive to the values and contemporary standards of society while ensuring that artistic expression and creative freedom are not unduly curbed.

The film must be judged in its entirety from the point of view of its overall impact:

  • K.A. Abbas v. Union of India 18
  • Raj Kapoor v. State 19
  • Samaresh Bise v. Amal Mitra 20 and
  • State of Bihar v Shailabal Devi 21
     

Publication of sex oriented matter in news paper

By publication of sex oriented matter in newspaper, the news paper industry is not keeping balance with the protection of the children from harmful and disturbing materials. Accordingly in case of Ajay Goswami v. Union of India 22 the petition involves a substantial question of law and public importance on the fundamental right of the citizens regarding the freedom of speech and expression as enshrined under Article 191 a of the Constitution of India23. The Petitioners grievance is that the freedom of speech and expression enjoyed by the newspaper industry is not keeping balance with the protection of children from harmful and disturbing materials.

That article 191 a guarantees freedom of speech and expression of individual as well as press. It acknowledges that the press is free to express its ideas but on the same hand, individual also has right to their own space and right not to be exposed against their will to others expression of ideas and actions. By way of this petition, the petitioner requested the Court to direct the authorities to strike a reasonable balance between the fundamental right of freedom of speech and expression enjoyed by the press and the duty of the Government, being signatory of the United Nations Convention on the Rights of the Child, 198924 and the Universal Declaration of Human Rights25, to protect the vulnerable minors from abuse, exploitation and harmful effects of such expression.

The petitioner requested the Court to direct the authorities concerned to provide for classification or introduction of a regulatory system for facilitating climate of reciprocal tolerance The petitioner is not in any way seeking restraint on the freedom of press or any censorship prior to the publication of article or other material. The petitioner is only seeking for the regulation at the receiving end and not at the source. Whatever is obscene is not protected by any law and there are numerous avenues for the redressed of grievances for the publication of any obscene material. However, all sex-oriented material is not always obscene or even indecent or immoral.

The effect of words or written material should always be judged from the standards of a reasonable strong-minded, firm and courageous man i.e., an average adult human being. No attempt has been made till date to define any yardstick for minors whose tender minds are open for being polluted and are like plain slate on which any painting can be drawn.

Sex oriented articles etc., may not be obscene within the four corners of law but certainly have tendencies to deprave and corrupt the minds of young and adolescent who by reasons of their physical and mental immaturity need special safeguards and care. The double-meaning jokes cannot in any way leave healthy impact on the tender minds of the teenagers. The photographs certainly are part of news from around the world and India.

However, the tone and tenor of the article as a whole and the way some of the photographs are published and described may not be in the interest of the minors. ”. If the minor is of an age where he/she cannot understand the meaning, he/she would like to know from others and if the minor has come to an age where he/she is able to understand this would certainly energies his/her grey cell in the brain and would excite him/her.

Is it really necessary for a child to read at a very early stage the concept of masturbation, ejaculation, penetration, etc., as is normally discussed by so-called sex experts in columns of newspapers? At what age should we start telling our children where to have sex and how to break their monotony? we really need to show the nude photographs with only small black strips on the private parts to our children without even bothering of its effects? In Times of India dated 1-8-2005 an article titled Porn in Potter VP 26 an article The author has tried reading and suggesting sexual messages in these lines.

Children who were reading the book might not have any such inclination. However, after reading newspaper their mind would certainly wander to an area which the author might not have even conceived. No doubt, we are not living in an ear of Gandhari but some have culture and respect for elders and some decorum and decency towards children.

Undoubtedly, such kind of stuff is available free on internet, movies, televisions, etc., but is the families and the community environment really ready to accept it in to or are they passive receiver of the same without any control of check? Are these articles really making our children morally healthy? Moral values should not be allowed to be sacrificed in the guise of social change or cultural assimilation.

The Supreme Court observed that, in our opinion, the present scenario provides for a regulatory framework under which punishment is prescribed for flouting the standards set by the Press Council of India by newspapers/print media.

POCSO Act, 2012

Protection of Children from Sexual Offences Act, 2012 POCSO Act27 is the main legislation that deals with child sexual abuse in general which includes offences of sexual assault, sexual harassment and pornography. Chapter III specifically makes the use of a child in any form of media for the purpose of sexual gratification an offence. The Act covers the offences of preparation, production, offering, transmitting, publishing, facilitation and distribution of the pornographic material. The overall aim of the POCSO Act is the protection of children from sexual exploitation and degradation, as child pornography can be considered as one of the extreme forms of exploitation of children.

There is no legal definition available of the term child pornography. Moreover, it is to be noted that prior to the POCSO Act there is no specific mention of the terms child and pornography within a single legislation. The Act defines a child as any person below the age of 18 years and provides protection to them. On the other hand child pornography includes representation of sexual organs of a child, usage of child engaged in sexual acts and indecent and obscene representation of child through any program or advertisement in television channels or the internet.

The Act punishes the use of child for pornographic purposes with an imprisonment of five years and/or fine. Moreover, in the event of any subsequent conviction may result in an imprisonment of not less than ten years or may extend to life imprisonment and shall also be liable for a fine. In order to grant extreme level of protection, the Act also punishes the storage of pornographic material involving a child for commercial purposes with an imprisonment of three years and/or fine.

Information Technology Act, 2000

The information technology Act of 2000 punishes the publishing or transmission of any obscene material in electronic form. The earlier Act did not have any specialised provisions regarding child pornography; all the instances of pornography were treated under Section 6728 of the earlier Act. Though, it is important to note that the IT Act, 2000 was an important step forward from the earlier legislations.

Earlier all the instances of pornography whether online or not were treated under the Indian Penal Code 1860 and the Indecent Representation of Women Prohibition Act 1986. The transmission or publishing of obscene material is punishable by imprisonment of two years and five which may extend up to five Lakhs rupees and any subsequent conviction by an imprisonment of five years and fine which may extend up to ten lakhs rupees. The subsequent amendment to the 2000 Act in 2008 specifically punishes child pornography.

The Act of publishing or transmitting material depicting children in sexually explicit act is punishable. Moreover, it also punishes browsing, collection, distribution, and creation of any sexually explicit material containing children. Inducing online relationship with children, facilitating child abuse online and recording sexual abuse of children in electronic form is a punishable offence. The Act provides for a punishment with an imprisonment of five years and a fine up to five lakhs rupees and the second conviction is punishable with an imprisonment of seven years and a fine up to ten lakhs rupees.

The offence made under the Act is non-bailable and cognizable. Section 67C 29 imposes liability on intermediaries for the retention and production of information. Section 7930was also amended; it specifies the condition sunder which liability will not be imposed on intermediaries. Even after having such elaborate legal provisions punishing child pornography, curtailing child pornography is a challenging task. The present technology is not so developed to churn out child pornography from the wide area of pornography.

As the matter of Pornography has to be seen in consonance of Right to freedom of Expression it a task to differentiate them on the digital media. Though the legislation has been made under the different statutes but the basic problem of implementation is a serious issue as in the physical world the implementation can be possible due to stricter approach by the government but as for the digital sphere the government seems to have a little bit of concern and even these institutions who are accorded with the duty to do so are not even funded properly, so in actually to curb the problem a serious approach is required.

Section 66A of the Information Technology Amendment Act, 2008 prohibits the sending of offensive messages though a communication device i.e. through an online medium. The types of information this covers are offensive messages of a menacing character, or a message that the sender knows to be false but is sent for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will. If youre booked under Section 66A, you could face up to 3 years of imprisonment along with a fine. Section 66A: Do not send offensive messages 31

The large amounts of obscene material that circulate on the Internet have long attracted comment in India. Not surprisingly, then, in the same way as obscenity is prohibited offline in the country, so it is online as well. The most important tools to curtail it are sections 67 and 67A of the IT Act, prohibiting obscene and sexually explicit material respectively. Sections 67 and 67A: No nudity 32.

Section 69A of the IT Amendment Act, 2008, allows the Central Government to block content where it believes that this content threatens the security of the State; the sovereignty, integrity or defense of India; friendly relations with foreign States; public order; or to prevent incitement for the commission of a cognizable offence relating to any of the above. A set of procedures and safeguards to which the Government has to adhere when doing so have been laid down in what have become known as the Blocking Rules. Section 69A and the Blocking Rules: Allowing the Government to block content under certain circumstances 33.

Section 79 of the Information Technology Amendment Act, 2008 regulates the liability of a wide range of intermediaries in India. The section came in the limelight mostly because of the infamous Intermediary Guidelines Rules, or IT Rules, which were made under it. The IT Rules constitute an important and worrying move towards the privatization of censorship in India. Section 79 and the IT Rules: Privatizing censorship in India 34.


Recent Cases
The incident happened in Ranchi where a father scold her daughter on an obscene video she shot with her boyfriend. The girl first accused her father of mental torture and then She then lodged an FIR accusing her father of sexual abuse. India today, New Delhi, Aug 28, 2019 35.

Another incident took place by a taekwondo trainer where he is doing obscene and vulgar gestures in fount of a women. India today, New Delhi, April15, 2018 36.

Concluding Remarks
Obscenity is a globally recognized complex issue which has attracted the attention of jurists, lawmakers and society at large. It can be stated that what is immoral for one may not be so for other or other society. Due to the latest technology people are becoming more power oriented day-by-day with the fully consciousness of their freedom rather than their duties to maintain the moral standards, decency, peace and order and to follow the law in country.

Above all, judiciary is one among three organ of the government which performs the function of maintaining peace and order in the society and it is left to it for maintenance of the reasonable as well as prudent repository of moral standard in the society for dealing with obscenity in cyberspace.

The use of new multimedia technology is increasing day-by- day which is misused by the criminals in cyberspace. Cyber obscenity is one out of those cyber crimes which is growing everyday both at national and international level. United States of America and India have enacted several laws for dealing with cyber obscenity; despite this many complicated legal issues still remain unresolved.

There are number of offences taking place in both countries but only the few cases are lodged as a complaint. But due to this the cyber criminals are day-by-day more encouraged to get involved in such type of criminal activities. It is suggested that punishment needs to be enhanced for dealing with such crimes and there is a need to adopt specific and comprehensive definition of cyber obscenity in the cyberspace.

On priority basis, there is a need to take concert action to stop the all forms of obscenity and child pornography specifically. There is also a need of issuance and determination of uniform guidelines for the internet service providers and cyber cafés which expressly mentions their liability and accountability such as there must be the provision for keeping the secrecy of the users personal information which is provided on the basis of utmost good faith.

For combating the problem of publishing obscene information in cyber space, there is a pressing need of spreading awareness in government as well as public. It is also highly demanded that the cyber authorities must be technically trained from time to time. There is a need to inculcate the culture of continuous learning education among the law enforcement authorities because present knowledge becomes obsolete in a very short time.

Society at large must be aware about the fact that they are also encouraging such activities by searching online obscene/pornographic material with the intention to satisfy him/her mentally. Searching online obscene material results in financially supporting those persons who are uploading such obscene information for gaining profit and such profit increases with increase in the number of subscribers and viewers.

So, firstly, we should check ourselves not to provide financial support to the cyber criminals indirectly. Involving ISPs would be a good strategy and it would restrict the supply and may prove to be more beneficial as compared to simply identifying and prosecuting users of child pornography. As we know that prevention is better than cure. The punishment for cyber obscenity must include all the four theories of punishment, i.e. retributive, deterrent, preventive and reformative theories.

References:

  1. Economic Times, May 29, 2019
  2. Regina V. Hicklin 1868
  3. Miller V. California 1973
  4. Pope v. Illinois1973
  5. Article-21 Indian Constitution 1950
  6. Maneka Gandhi v. Union of India
  7. Bandhua Mukti Morcha V. Union of India
  8. Chandra Raja Kumar V. Police Commissioner Hyderabad
  9. 2010 study by Manjima Bhattacharjya and Maya Indira Ganesh
  10. Section 292
  11. The Indecent Representation of Women Act, 1986
  12. The Indecent Representation of Women Act1986, S- 2b
  13. The Indecent Representation of Women Act, 1986, S-6
  14. Times of India Feb 2, 2009
  15. Bobby Art International V OM Pal Singh Hoon- 1996 4 SCC 1
  16. Aveek Sarkar V. State of West Bengal
  17. Raj Kapoor V. State
  18. K.A. Abbas V. Union of India
  19. Raj Kapoor V. State
  20. Samaresh Bise V. Amal Mitra
  21. State of Bihar V Shailabalc Devi
  22. Ajay Goswami V. Union of India
  23. Article- 19 1 a of Indian Constitution- 1950
  24. United Nations Convention on the Right of child 1989
  25. Universal Declaration of Human Rights 1948
  26. Times of India, Aug- 1, 2005 Porn in Potter VP
  27. Protection of Children from Sexual offences Act 2012
  28. Section- 67 of Information Technology Act- 2000
  29. Section0- 67 C Of Information Technology Act-2000
  30. Section-79 of Information Technology Act-2000
  31. Section 66 A Information Technology Act-2000
  32. Section 67, 67 A Information Technology Act-2000
  33. Section 69 A Information Technology Act-2000
  34. Section -79 Information Technology Act-2000
  35. India Today, New Delhi, Aug 28, 2019
  36. India Today, New Delhi, April 15, 2018

Written By: Kriti Kumari Aggarwal

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