The Law on Pornography in India

Crimes project Pornography

SUBMITTED BY: SAHIL AHMAD, 57, B.A. LL.B (H), 3RD SEMESTER, FACULTY OF LAW, JMI

CONTENTS INDEX

PAGE NO.

History of Pornography

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1

Pornography & Obscenity

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Obscenity as an offence under IPC

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Constituents of Obscenity

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5

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Obscenity- meaning to deprave and corrupt public moral

A film that carries the message of social evil as evil is not indecent and obscene

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Certificate granted by Film Censor board does not bar Criminal Court Jurisdiction to try cases under sections 292, IPC

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Obscenity-personal viewing-is an Offence?

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Cyber pornography

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Sahil Ahmad, 3rd Semester, Faculty of Law, Jamia Millia Islamia, New Delhi.

Obscenity on Internet in India

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Obscenity under IT Act

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Applicability of the Act to cyber cafe Owners

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Punishment under the Acts

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Recent incidents in India

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Indian Law Regulating Child Pornography

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Conclusion

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Bibliography

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Sahil Ahmad, 3rd Semester, Faculty of Law, Jamia Millia Islamia, New Delhi.

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PORNOGRAPHY “Pornography or porn is the portrayal of explicit sexual subject matter for the purposes of sexual excitement and erotic satisfaction.”

It may use any of a variety of media, ranging from books, pamphlets, paper, writing, drawing, painting, representation, figure, film, video, video game etc

History of Pornography

Depictions of a sexual nature are as old as civilization but the concept of pornography as understood today did not exist until the Victorian era. Nineteenth century legislation outlawed the publication, retail and trafficking of certain writings and images, regarded as pornographic, and would order the destruction of shop and warehouse stock, meant for sale. However, the private possession of and viewing of (some forms of) pornography was not made an offence until recent times.

When large scale excavations of pomeii were undertaken in the 1860s, much of the erotic art of the Romans came to light, shocking the Victorians who saw themselves as the intellectual heirs of the Roman Empire. They did not know what to do with the frank depictions of sexuality, and endeavored to hide them away from everyone but upper class scholars. The moveable objects were locked away in the Secret Museum in Naples and what could not be removed was covered and cordoned off as to not corrupt the sensibilities of women, children and the working class. Soon after, the world's first law criminalizing pornography was enacted by the Parliament of the United Kingdom in 1857 in the Obscene Publications Act.

The Victorian attitude that pornography was for a select few can be seen in the wording of the Hicklin test stemming from a court case in 1868 where it asks, "Whether the tendency

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Sahil Ahmad, 3rd Semester, Faculty of Law, Jamia Millia Islamia, New Delhi.

of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences." Despite the fact of their suppression, depictions of erotic imagery were common throughout history.

Pornography and Obscenity: The term ‘pornography’ when used in relation to an offence is not defined in any statutes in India but the term ‘obscenity’ has been effectively explained in two statutes in India, and these legislations prescribe that ‘obscenity’ in certain circumstances constitutes an offence. These legislations are (i) The Indian Penal Code, 1860 (‘IPC’) and (ii) The Information Technology Act, 2000 (‘IT Act’). Although neither the IPC nor the IT Act defines what ‘obscenity’ is, section 292 of the IPC and section 67 of the IT Act, (which corresponds to section 292 of the IPC) explain ‘obscenity’ to mean anything which is lascivious or appeals to the prurient interest or if its effect is to deprave and corrupt persons. Therefore according to the law in India, anything that is lascivious or appeals to the prurient interest or if its effect is to deprave and corrupt persons would be considered to be ‘obscene’. The Supreme Court has defined obscene as “offensive to modesty or decency; lewd, filthy, repulsive”. Other Indian law that deal with pornography include the ‘Indecent Representation of Women (Prohibition) Act, %%%.

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Sahil Ahmad, 3rd Semester, Faculty of Law, Jamia Millia Islamia, New Delhi.

Obscenity as an offence under the Indian Penal Code Section 292 of the IPC comprehensively sets out the circumstances in which ‘obscenity’ and / or any ‘obscene’ material is an offence. According to section 292, “(1)For the purpose of subsection(2), a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if it’s effect, or (where it comprises two or more distinct items) the effect of any one of it’s items is taken as a whole, such as to tend to deprave and corrupt person, who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.” Whoever (i)

sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation, or figure or any other obscene object whatsoever or

(ii)

imports, exports or conveys any obscene object for any of the purposes mentioned in (i) above, or knowing or having reason to believe that such obscene object will be sole, let to hire, distributed or publicly exhibited or in any manner out into circulation, or (iii) takes part in or receives profits from any business in the course of which he knows or has reason to believe that any such obscene objects are, for any of the

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Sahil Ahmad, 3rd Semester, Faculty of Law, Jamia Millia Islamia, New Delhi.

purposes mentioned in (i) above, made, produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any manner put into circulation, or (iv) advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under section 292 or that any such obscene object can be procured from or through any person or (v) offers or attempts to do any act which is an offence under section 292, is punishable with imprisonment and fine. Therefore, obscenity is an offence if it falls within any of the above prescribed purposes.

Constituents of obscenity, analysis of the relevant terms: Lascivious is something that tends to excite lust. Appeals to, in this context, means “arouses interest”. Prurient interest is characterized by lustful thoughts. Effect means to produce or cause some change or event. Tend to deprave and corrupt in the context of this section means “to lead someone to become morally bad”. Persons here refers to natural persons (men, women, children) and not artificial persons (such as companies, societies etc). To be considered obscene for the purpose of this section, the matter must satisfy at least one of the following conditions: 1. it must tend to excite lust, or 2. it must arouse interest in lustful thoughts, or 3. it must cause a person to become morally bad.

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Sahil Ahmad, 3rd Semester, Faculty of Law, Jamia Millia Islamia, New Delhi.

The above conditions must be satisfied in respect of a person who is the likely target of the material. This can be understood from the following illustration: Illustration: Sameer launches a website that contains information on sex education. The website is targeted at higher secondary school students. Pooja is one such student who is browsing the said website. Her illiterate young maid servant happens to see some explicit photographs on the website and is filled with lustful thoughts. This website would not be considered obscene. This is because it is most likely to be seen by educated youngsters who appreciate the knowledge sought to be imparted through the photographs. It is under very rare circumstances that an illiterate person would see these explicit images. Exceptions : Section 292 also sets out the purposes under which obscenity is not deemed to be an offence and these are when any such material is used (i) Justifiably for the public good for e.g. interest of science, literature, art

or learning or

other purposes of general concern, (ii) For bona-fide religious purposes and (iii) in any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 or in any temple, or on any car used for the conveyance of idols. Tamil Nadu – Absolute liability for Indecent matters to blackmail: After section 292, section 292A was inserted by the state of Tamil Nadu in 1960 vide Tamil Nadu Act 25 of 1960 in order to impose absolute liability on a person who is found to have printed any grossly indecent or scurrilous matter or matters intended for blackmail. Punishment in such a case may extend to two years, or fine or both. And in case of second or any subsequent offence, the accused shall be punished with a minimum of six months that may extend to two years. Perhaps it would be appropriate to enact a similar provision under

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the IPC in order to cover cases where persons are blackmailed by grossly indecent and scrupulous publications. In a case from Malaysia; Muhamed Ibrahim v. Public Prosecutor, the court held that to attract section 292 of Malaysian penal code, which is similar to section 292 IPC possession of obscene book for the purpose of sale is sufficient. The appellant who could not read English had in his possession, copies of the book TROPIC OF CANCER, which was found under the counter of his shop by police officer on September 22, 1962. The copies together with others which had been sold were bought on September 8, 1962. The appellant was charged for having in his possession for purpose of sale 65 copies of obscene books in contravention of section 292 of penal code and convicted on October 23, 1962. On November 8, 1962 an order by the minister of the interior under section 4 of the control of Imported publications Ordinance prohibiting the importation of the tropic of cancer was published in the government gazette. On appeal the appellant argued that (1)the book was not obscene ;(2) the appellant was not in possession of the books for sale and (3) the appellant had no knowledge of the nature of contents of the books. The court applying the principles laid down in the landmark Judgement of R. V. Hickling1, which is the test of obscenity. Dismissing the appeal, accordingly the court said, as the book is priced at less than 3 Ringit (currency) within the reach of the majority of the reading public and as it is calculated to convey and instil into the ordinary reader the impression that casual and frivolous indulgence of the sexual instinct is something of no importance and nothing more than a joke. The tendency is to deprave and corrupt those whose minds are open to such

1

1868 3 QB 360

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immoral influences and into whose hands it may fall. And on the evidence the inference was irresistible that the books were for sale. Obscenity – meaning – to deprave and corrupt public moral: A careful perusal of the provision of section 292, IPC would reveal that the word obscenity has not been defined. However, judiciary has attempted to explain the word obscenity by laying down test to indicate which act under what particular context would come within the arena of obscenity. Since the Indian law of obscenity contained under section 292 has been borrowed from English Law, it would be appropriate to examine the test of obscenity given by Cockburn,C.J. of the house of lords in R. v. HICKLIN 1868 3 QB 360, which is perhaps the earliest case on the subject, is as follows:Cockburn CJ. Said “....the test of obscenity is whether the tendency of the matter charged is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall..... It is quite certain that it would suggest to the minds of the young of either sex, or even to person of more advanced years, thoughts of a most impure and libidinous character. In Martin Secker and Warburg2, It was said that ”you will have to consider whether the author was pursuing an honest purpose and an honest thread of thoughts or whether that was all just a bit of camouflage.” The case of Ranjit Udeshi v. State of Maharastra is one of the most important cases decided by the supreme court of India on this subject. The appellant, one of the four partners of a firm owning a book stall named ‘happy book stall’ in Bombay was convicted by the magistrate under section 929, IPC along with the other partners for being in possession of an obscene book called Lady Chatterley’s Lover which inter alia contained obscene matter. The decision of lower court was upheld by the High court and Supreme Court. While dismissing the appeal, Justice Hidayatullah speaking through the court said: 2

1954 2ALL ER 683

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“There is no loss to society if there was a message in the book. The divagations with sex are not a legitimate embroidery but they are the only attractions to the common man. When everything said in it’s favour we find that in treating with sex the impugned portions viewed separately and also in the setting of the whole book pass the permissible limits judged of from our community standards and as there is no social gain to us which can be said to preponderate, we must hold the book to satisfy the tests we have indicated above. As regards, the contention of the petitioner that section 292, IPC violate Article 19(i)(a) of the constitution, since it puts restriction on the freedom of speech and expression, the court said in the negative”. Justice Hidayatullah further said: “No doubt article 19 guarantees freedom of speech and expression but it also makes an exception in favour of existing law which imposes restrictions on the exercise of the right in the interest of public decency and morality........speaking in terms of the constitution it can hardly be claimed that obscenity which is offence to modesty or decency is within the constitutional protection given to free speech or expression, because the article dealing with the right itself excludes it. That cherished right on which our democracy rests is ment for expression of free opinion to change political or social condition of for the advancement of human knowledge. This freedom is subject to reasonable restrictions which may be thought necessary in the interest of the general public and one such is the interest of public decency and morality. Section 292,IPC manifestly embodies such a restriction because the law against obscenity, of course, correctly understood and applied, seeks no more than to promote public decency”. In Sarmaresh Bose v. Amal Mitra3, the Supreme Court, holding a novel intended to expose the evils prevailing in the society with emphasis on sex and using slangs and unconventional languages 3

AIR 1986 SC 967

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not obscene, observed: “A vulgar writing is not necessarily obscene. Vulgarity arouses a feeling of disgust and revulsion and also boredom but does not have the effect of depraving, debasing and corrupting the morals of any reader of the novel, whereas Obscenity is the tendency to deprave and corrupt those whose mind are open to such immoral things. A novel which is intended to expose the evils of the society cannot be said to be Obscene merely because slang and unconstitutional language has been used in the book, in which there has been emphasis on sex and description of female bodies and there are narrations of feelings, thoughts and action in vulgar languages. Some portion of the book may appear to be vulgar and readers of cultured or refined tastes may feel shocked and disgusted. Equally in some portions, the words used and descriptions given may be not appear in proper taste... The author has written this novel for all class of readers and it cannot be right to insist that the standard should always be for the writer to see that the adolescent may not be in brought in contact with sex. If a reference to sex by itself in any novel is considered to be obscene and not fit to be read by adolescents; adolescent will not be in a position to read any novel and will have to read books which are purely religious”.

A film that carries the message of social evil as evil is not indecent and obscene: In the ccase of Body Art International4, the apex Court while allowing the appeal against the judgement of the Delhi High Court banning the release of ‘Bandit Queen’ for show on the ground of it’s being ‘indecent’ for public exhibition, held that a film that carries the message that social evil is evil cannot be made impermissible and banned for public exhibition on the ground that it depicts the social evil. The scene of nudity, rape and the use of vulgar words in aid of the theme and intended not to arouse prurient or lascivious thought but revulsion against the perpetrators and pity for the victim. The Court further held, “that rape and sex are not being glorified in the film. Quite the contrary, it shows what a terrible and terrifying effect rape and lust can have upon the

4

(1996)

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victim. It focuses the trauma and emotional turmoil of the victim to evoke sympathy for her and disgust for the rapist”. Certificate granted by Film Censor board does not bar Criminal Court Jurisdiction to try cases under sections 292, 293, IPC: The Supreme Court in Raj kapoor v. State (Delhi administration) held that certificate granted by the censor board under section 6 and 5A of the cinematograph Act, 1952 does not bar Criminal Courts jurisdiction to try offences under section 292, 293 of the Penal Code. A unique pro bono (public welfare) public prosecution was launched by a private complainant, claiming to be the President of Youth Organisation devoted to defending Indian cultural standard, inter alia, against the unceasing waves of celluloid anti-culture, arraigning, together with the theatre owner, the producer, actor, and photographer of a sensationally captioned and loudly publicised film by the name of ‘Satyam, Sivam, Sundaram’ under sections 282,283 and 34 IPC for alleged punitive prurience (unhealthy sex) moral depravity and shocking erosion of public decency. The court held, “…no doubt-a certificate by a high powered board of censors with specialised composition and statutory mandate is not a piece of utter inconsequence. It is relevant material, importance in its impact, though not infallible in its verdict.... The Court is not barred from trying the case because the certificate under the cinematography act is issued under the IPC, pro tanto will hang limp. The court will examine the film and judge whether its public display, in the given time and clime, so braches public morals or deprave basic decency as to offend the penal provisions.

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Sahil Ahmad, 3rd Semester, Faculty of Law, Jamia Millia Islamia, New Delhi.

OBSCENITY – PERSONAL VIEWING – IS IT AN OFFENCE? From a plain reading of Section 292 of the IPC it appears that if a person is in mere possession of the obscene material for his personal use without any intention to perform any of the purposes specified in section 292 (as stated above) it may not be an offence under section 292. In the case of Jagdish Chavla and others v/s the State of Rajasthan5, the accused was caught viewing an obscene film on the television with the help of a VCR which along with the cassette was seized and a case under section 292 of the IPC was registered. The accused filed a petition in the High Court for quashing of the proceedings and it was held that, “simply being in possession of a blue film could not make a person guilty under section 292 unless it was further proved that the purpose of keeping the same was selling or letting it on hire”. Therefore without proving the purpose of keeping the same no offence mentioned in section 292 was made out and the proceedings were quashed. The law therefore excludes from liability (under section 292) the mere possession of obscene material for one’s own personal use without any intention to perform any of the purposes specified in section 292. However, it would be prudent to be aware that a prosecution may lie for mere possession of obscene material also. It could be argued that a person, even though he is in mere possession of the obscene material which may be for his own personal use, actually aids and abets the publication, sale, hire, distribution etc of the obscene material, which is an offence under section 292. And under section 111 of the IPC, the abettor is held to be equally guilty of the offence which he has abetted provided it is proved that the offence is a probable consequence of the abetment.

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1999 CR LJ 2562 (Raj)

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Sahil Ahmad, 3rd Semester, Faculty of Law, Jamia Millia Islamia, New Delhi.

CYBER PORNOGRAPHY There is no settled definition of pornography or obscenity around the globe. What is considered simply sexually explicit but not obscene in USA may well be considered obscene in India. There have been many attempts to limit the availability of pornographic content on the Internet by governments and law enforcement bodies all around the world but with little effect. Pornograph the Internet is available in different formats. These range from pictures and short animated movies, to sound files and stories. The Internet also makes it possible to discuss sex, see live sex acts, and arrange sexual activities from computer screens. Although the Indian Constitution guarantees the fundamental right of freedom of speech and expression, it has been held that a law against obscenity is constitutional.

Obscenity on the Internet in India: Search engines and other Web sites in India are required by law to filter pornographic content. “The area for circumvention on the internet is so large, and government interest in prosecution so low, that the country is better off doing away with the laws”, said an analyst.

"It is impractical to monitor pornography on the net," said Vijay Mukhi, a cyber law consultant in Mumbai. "Rather than try to control all of pornography on the Internet, the government would be better off focusing on the more serious issue of child pornography," he added.

Section 67 of India's Information Technology (Amendment) Act, 2008, penalizes "whoever publishes or transmits or causes to be published or transmitted in the electronic form" any material "which is lascivious or appeals to the prurient interest," or "contains (a) sexually explicit act or conduct."

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Sahil Ahmad, 3rd Semester, Faculty of Law, Jamia Millia Islamia, New Delhi.

Viewing of online pornography, other than child pornography, is however not an offence in India, said Pavan Duggal, a cyber law consultant and advocate in India's Supreme Court.

The amendment Act modified certain provisions in the Information Technology Act of 2000. It removed, for example, the liability of intermediaries, including search engines, for thirdparty content, under certain conditions. But there are still sufficient grounds for any search engine to be penalized for providing access to sexually explicit content, Duggal said. The due diligence required by them under the Act requires them to ensure that contraventions under the Act do not happen, he added.

In India, Microsoft's search engine Bing blocks out pornographic content for local users. If the user types in terms like "sex", "xxx" or "porn" for a Web site, video or image, the search engine blocks the search with the message "Your country or region requires a strict Bing Safe Search setting, which filters out results that might return adult content."

"Our products, including Bing, choose to comply with social norms and country specific laws governing adult content in the countries we operate in," a Microsoft India spokeswoman said in an e-mail. However a Net-savvy user has only to change the country on the menu at the right hand corner of the Bing screen to the U.S. or many other countries, and he has access to unfiltered pornographic content."By not allowing people of India to access content that is illegal, these measures could qualify as due diligence under the IT Act," Duggal said. If the user deliberately circumvents and enters his country as the U.S., it is not the fault of the search engine, he added. Yahoo has also blocked out adult content for several years. Users in India on its local site www.yahoo.co.in cannot change their settings to other than safe search. Yahoo has had safe search filters, designed to limit certain adult or sexual content, activated in specific markets for a number a years, a Yahoo spokeswoman said in an e-mail. "In India we have activated safe search filters to meet our obligations under the local law and to our

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Sahil Ahmad, 3rd Semester, Faculty of Law, Jamia Millia Islamia, New Delhi.

users," she added. Indian users can however access links to pornographic sites and related images on the main Yahoo site www.yahoo.com. Google does not by default screen pornographic text or images in India, as do Yahoo and Bing. It however offers users a Safe Search Filtering option to modify the settings to moderately or strictly filter search results. Google believes that its policy on safe search filters on its Indian site www.google.co.in is in compliance with local laws, and additionally, it does give users the ability to lock in Safe Search. In the inadvertent event that some offensive content does appear, then any user can report it, and the appropriate support teams will take prompt and effective action in accordance with applicable policies, it added. By providing options to users to modify their setting to view adult content, Google may not be complying strictly with the IT Act, according to Duggal. Even as the search engines work out their own interpretations on how to comply with the law on online pornography, the Indian government is not taking a very serious note of pornographic web sites.

Indian enforcement agencies tend to focus more on real-world crimes like murder, rape and kidnapping, than online obscenity, which is seen more as a form of deviant entertainment than as a serious criminal offense. Curbing online pornographic entertainment is very low down on the list of priorities of the police.

Duggal estimated that there have been only two convictions in the country under Section 67 of the IT Act. In one case a jilted male lover was convicted for circulating morphed images of a girl, while in the other case an individual was convicted for online obscenity.

The government can also instruct Internet service providers in the country to block pornographic Web sites. Except for one high-profile blocking of a cartoon pornographic Web site last year, there aren't any known other instances of obstructed access to pornographic sites.

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In an order dated 27th of February 2003, the central Government has laid down the procedure for blocking of pornographic websites. The Computer Emergency Team-India (CERT- IND) has been appointed as the sole authority for issue of instructions in the context of blocking of websites. CERT – IND, after verifying the authenticity of the complaint and after satisfying that action of blocking of the website is absolutely essential, has been empowered to instinct Department of Telecommunications (DOT) to block the website. DOT, under whose control the Internet Server Providers (ISPs) are functioning will ensure the blocking of Websites and inform CERT- IND accordingly. The IT Act represents an indirect attempt by India's government to impose restrictions on the freedom of speech and privacy on the Internet. As it reflects the prevailing political culture, the IT Act embodies the view that the Internet is something that can and must be regulated before it gets out of control. Section 67 of the IT Act is designed to deter publication and transmission of obscene information in electronic form. Just like the U.S. COPA equivalent, this section departs from the test enunciated by the U.S. Supreme Court. Under Section 67, "any material which is lascivious or appeals to the prurient interest or . . . tend[s] to deprave and corrupt persons who are likely . . . to read, see or hear the matter (is considered obscene)…." The section imposes dual punishment on offenders, including a fine and imprisonment up to a maximum term of ten years. Through the IT Act's passage, India's legislature ignored the "lewd, filthy and repulsive" and "preponderating social purpose" tests associated with earlier attempts at regulation. Section 67 retains only the "tendency to deprave and corrupt" test. It introduces two new standards, "lascivious" and "appealing to prurient interest," similar to COPA's introduction of new standards in the United States. These new standards even bear resemblance to COPA's provisions. In addition, Section 67 appears to be as vague as COPA

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yet remains unchallenged, reflecting the emergence of a new regulatory standard for Internet speech in India. India's courts have thus far been left out of the debate on the freedom of speech on the Internet. Consequently, India's regulators have had a seemingly free ride in their attempts to regulate the Internet. The apparent reasons for this could be summarized as follows: (1) The arbitrary blocking of websites (such as that of Shellshock and Dawn) lasted only temporarily and, therefore, eluded necessary testing by India's courts; (2) The blocking of Internet telephony sites did not constitute actionable harm for either the owners or their attempted users, as the majority non-Indian owners could not seek redress in India's courts, and standard VSNL user contracts explicitly prevented account users telephony and fax applications; (3) The IT Act's infancy necessarily means India's courts have not had an opportunity to scrutinize it; and (4) India's Civil liberties organizations are not well equipped to handle constitutional issues related to freedom of speech on the Internet.

Obscenity under the Information Technology Act According to Section 67 of the IT Act “Whoever publishes or transmits or causes to be published in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to one lakh rupees and in the event of a second or

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subsequent conviction with imprisonment of either description for a term which may extend to ten years and also with fine which may extend to two lakh rupees”. The expressions, ‘publishing’ or ‘transmission’ have not been specifically defined under the IT Act, but in Taxman’s commentary under the IT Act, ‘publishing means making information available to people’. The commentary also states that ‘transmission’ and not mere possession, of obscene information is an offence. Transmission may be addressed to an intended recipient for his personal use. But that is not relevant. The act of ‘transmission’ is sufficient to constitute an offence under section 67 of the IT Act. Therefore if any obscene material is published or transmitted in any electronic form it is an offence under section 67 of the IT Act. The provisions of section 67 of the IT Act are therefore similar to section 292 of the IPC where mere possession of the obscene material for one’s own personal use may not be construed as on offence, however, it would be advisable to be cognizant of the fact that the prosecution can take a plea of abetment in a case of mere possession. Although section 292 of the IPC principally deals with obscene material capable of expression in the physical medium such as books, pamphlets, papers, writings, drawings, paintings, representations, and the provisions of section 67 (which correspond to the provisions of section 292 of the IPC as stated above) under the IT Act, deal with computer systems and networks, intangible medium of the internet and electronic communication devices such as the cellular phone handsets. A prosecution can be commenced independently or jointly under both the Acts.

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Applicability of the Acts to Cybercafe owners In the context of cybercafés in particular, if a customer downloads any obscene material for his personal viewing on the terminal assigned to him and this fact is known to the owner of the cybercafé it would constitute an offence and the owner of the cybercafé would be liable under section 292 of the IPC read with Section 67 of the IT Act. Provided however, if it is established that this act was without the knowledge of the owner of the cybercafé it could be difficult for the prosecution to sustain its plea under section 292 of the IPC and section 67 of the IT Act. However the owner may not be completely exonerated from liability and it is possible that he may be held responsible for abetting the offence (if not for its commission) in terms of facilitating the circulation and distribution of the obscene material. The law relating to the liability of cybercafé owners under these provisions of the IPC and the IT Act is not very well settled and therefore open to subjective interpretation. To mitigate liability and to avoid possible criminal prosecution the cybercafé owners could perhaps make an attempt to take protection under section 79 of the IT Act, which absolves ‘intermediaries’, who only provide access to content but do not provide content itself, by extending the argument of intermediaries to cybercafés (although not tested in courts in India). The grounds of defence could also be made stronger by setting up a mechanism (hardware or software) whereby the customers are prevented from accessing any obscene websites and disclaimers are displayed prominently informing customers that obscenity is an offence which is punishable with imprisonment and that despite the warning, if customers still view such websites, they will be personally responsible and not the owner of the cybercafé. However, this argument (of drawing a parallel between intermediaries and cybercafé owners) has not been judicially tested so far and from a plain reading of section 79 of the IT Act, the intermediaries are restricted to mean only ‘network service providers’ such as Videsh

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Sahil Ahmad, 3rd Semester, Faculty of Law, Jamia Millia Islamia, New Delhi.

Sanchar Nigam Limited, Mahanagar Telephone Nigam Limited etc. Even in such cases, the provisions of section 79 of the IT Act imposes an obligation on intermediaries that they would be able to take the benefit of this section only if it is shown that the offence was committed without their knowledge or that they had exercised all due diligence to prevent its commission. What exactly is this due diligence is unfortunately not defined or explained in the IT Act so it is completely open for the prosecution to define its own level of due diligence. Under the circumstances, the law as it stands on obscenity with regard to the liability it imposes on the owners of cybercafés is certainly not free from doubt and casts an onerous obligation on them to successfully defend a prosecution under the relevant provisions of the IPC and the IT Act. However, if certain precautions are observed such as establishing mechanisms which block such websites and displaying the disclaimers as suggested above, prominently, at least may help in providing a good defence.

Punishments prescribed under the Acts for Obscenity: The punishment for an offence under Section 292 of the IPC is on first conviction with imprisonment (simple or rigorous) for a term which may extend to two years, and with fine which may extend to two thousand rupees, and in the event of a second or subsequent convictions, with imprisonment (simple or rigorous) for a term which may extend to five years, and also with fine which may extend to five thousand rupees. The punishment for an offence under Section 67 of the IT Act is on first conviction with imprisonment (simple or rigorous) for a term which may extend to five years, and with fine which may extend to one lakh rupees, and in the event of a second or subsequent convictions, with imprisonment (simple or rigorous) for a term which may extend to ten years, and also with fine which may extend to two lakh rupees.

22

Sahil Ahmad, 3rd Semester, Faculty of Law, Jamia Millia Islamia, New Delhi.

RECENT INCIDENTS IN INDIA

Twelve law students from Pune have formed 'Committee 67', an awareness group to sensitise and influence the central government to amend Section 67 of the Information technology (IT) Act, 2000. These students studying in various city law colleges, including Symbiosis, ILS and

DYPatil.

Section 67 of the IT Act relates to cyber pornography. The section had come to limelight when the CEO of Bazee.com was arrested following the sale of CDs, containing a video clipping of a sexual act between two Delhi school students, posted on the website. The clipping first sent by an MMS and later transmitted through email was finally put on a CD by a

student

of

IIT

Kharagpur.

"While studying the IT Act, we found that Section 67 is too wide and ambiguous in its approach. Misapplication of this section has occurred and will continue to occur, resulting in the arrest and detention of innocent people," said Shreyas Adyanthaya, leader of the group. The section begins with 'who ever'. This word, the group found, can include a wide array of people like internet service providers (ISPs), telecom network service providers (NSPs), cyber

cafe

owners,

investigating

officers

and

even

a

layperson.

The section makes transmission of pornographic materials an offence, thus making intermediaries such as ISPs, cyber cafe owners liable. The section also has a phrase 'whoever causes

to

be

published'

which

has

a

very

wide

purview

of

application.

Application of this phrase in its strict sense can make even search engines like Google, Rediff and Yahoo and email service providers like Hotmail, Yahoo and Gmail liable although they may

not

be

actively

involved

in

the

pornographic

transaction.

In comparison, Section 292 of the Indian penal code (IPC), which relates to pornography published in non-electronic materials, is a far better piece of legislation as it includes the

23

Sahil Ahmad, 3rd Semester, Faculty of Law, Jamia Millia Islamia, New Delhi.

concepts 'knowledge and intention' of a particular offence, say members of Committee 67.

Including these concepts in Section 67 of the IT Act would greatly restrict the scope and application of this section and would make it more conducive to bringing to justice the guilty while

safe-guarding

the

rights

of

the

innocent,

they

add.

And while Section 79 of the IT Act protects the NSPs, it is not an adequate relief because it does not prevent the arrest of the person in charge of the network service (as in the case of the CEO of Bazee.com). This section places the burden of proof of innocence on the NSP, which goes against the principle of natural justice that says 'a person is innocent until proved otherwise'. The group has already written a letter to the secretaries in the IT ministries at the Centre and in the states, Law commission of India, senior police officials of various states, among others6. There are many reports of national liberation front of Tripura NLFT, a rebel group in Tripura making and selling pornographic movies to raise funds. A kannada porno video titled “mysuru millige” meaning “Maysore Jasmine” shot into fame featuring two engeneering students from the Malanda college of engeneering. The video itself was shot in a hotel room in mysore and thus the name. Another video of young kids of DPS, Delhi was a popular mms clip, though these videos are not made to be marketed, there popularity still is unrivalled even in it’s mainstream porn industry that is growing in India

6

Reported in Times of India 12-02-2005

24

Sahil Ahmad, 3rd Semester, Faculty of Law, Jamia Millia Islamia, New Delhi.

INDIAN LAW REGULATING CHILD PORNOGRAPHY

The Indian Penal Code, 1860 section 293 specifies, in clear terms, the law against Sale etc. of obscene objects to minors. As per the IPC, whosoever sells, lets to hire, distributes, exhibits or circulates to any person under the age of twenty years any such obscene object, as is referred to in IPC Section 292, or offers of attempts so to do, shall be punished with imprisonment for a term which may extend to three years, and which fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to seven years, and also with fine which may extend to five thousand rupees. It also states that it is a cognizable offence and the Magistrate is empowered to try any such case. For the purposes of sub-section (2), a book, pamphlet, paper, writing, drawing, painting representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it shall be punished with imprisonment, for the first instance, of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and also with fine which may extend to five thousand rupees. Many of the recent incidents forced the Justice Mallimath Committee on Criminal Reforms to rethink about the law, and they have introduced an amendment to the act, which punishes the child pornography in itself.

25

Sahil Ahmad, 3rd Semester, Faculty of Law, Jamia Millia Islamia, New Delhi.

These incidents are: (1)Through internet chat room a man representing himself as 15 years girl before a 16 years old boy from 2002 to 2004 when the fact was that he was of 30 years age and a man. That boy ran away to his girl friend at Mumbai from Kolkata. Thereafter, 30 years old man (girl friend) sexually abused the victim, stole money from him and beat him up.

(2)One young Bengali model named Sonal Singh was arrested from Gujarat for distributing her pornographic images in chat-room and internet on November 2005. She was permanent resident of Srirampur, West Bengal.

(3)Air force Bal Bharati School, Delhi; class(XII) student created pornographic site as revenge against his classmates (girls) and posted pornographic images of his classmates and lady teachers in internet. He was then suspended by school and arrested by Police under IPC and IT Act; though Juvenile Court allowed his bail thereafter.

(4)In Delhi the CBI has arrested Director of a private Company on the charge of sending threatening and obscene e-mails to a woman and for posting her objectionable photographs on websites. He was remanded in police custody and produced before the Tis –Hazari Court on 16th March 2005 and then was remanded in judicial custody. This case was registered by Cyber Crime Investigation Cell (CCIC) of CBI under section 67 of the IT Act, 2000 and IPC on 9th March 2005. As Indian Information technology law does specify any specific punishment in regards with these crimes. So every time this crimes predator escapes somehow. So it is high time when we have to introduce some strict law in this relation.

26

Sahil Ahmad, 3rd Semester, Faculty of Law, Jamia Millia Islamia, New Delhi.

CONCLUSION

It would be foolish to think the Internet can be free of all illegal materials. Part of what makes the Internet valuable is the vast amount of information that is available to us. Information that may have gone undiscovered or unnoticed without it. Technologic advancements are bringing to the world newly integrated messaging systems, more development of E-commerce, business television; high speed digital internet access, better GroupWare tools and the development of new multimedia technologies. All of these tools and advancements are in part or solely due to the Internet. With so much more to offer us, why would we want to regulate the Internet and ‘possibly’ stunt its growth. Regulation may initially stifle the Internet's growth, but it will grow and prosper with or without regulations. Besides, so many other aspects of our daily lives are regulated; money, banks, interest rates, business, schools, water, phones, electricity, land, and even airspace. Why should the Internet be any different? There is a fear that if we begin to regulate the Internet, we will be destroying it at the same time. There are arguments that the Internet is inherently chaotic and that is what makes it, what it is. But as the Internet grows and it's technological wonder, so do all of the bad things that come with it. Perverts are moving from the playground to the Internet and they are making their way into everyone's lives. While the Internet Industry provides parents with filtering systems like CyberWatch, Netnanny, and Cybernanny, the only thing these systems have accomplished is helping people avert their eyes away from the real problem. What some people view as pornography, others view as quite normal. Nevertheless, there has to be some consensus of what is child pornography, and we need to come up with a way to stop the exchange of such materials on the Internet. Germany has, to this point, taken the greatest strides in doing so. By holding the Internet providers responsible for the information,

27

Sahil Ahmad, 3rd Semester, Faculty of Law, Jamia Millia Islamia, New Delhi.

they allow their subscribers to exchange information free from illegal or elicit images. Holding ISP's liable to laws, there will be a huge decrease of the availability of child pornography on the Internet. The European Union and its member states also need a greater number of specialized police forces to deal with child pornography. Few countries have them; the UK and Germany are the exception to the rule. Not enough is being done for these children. There is a fine line between protecting the interests of children with the interests of the world. We need to recognize that while the Internet is capable of providing a place for the exchange of illegal and harmful material, it is has become an essential tool in our day to day lives. It is a tool whose purpose is to facilitate ideas, the exchange of knowledge, and the freedom to fly across the world in the blink of an eye should not become a reason for ruins of our future generations and at the cost of exploitation of our Children. Above all what ails the present scenario in India is lack of awareness regarding the background of porn industry (mostly in rural areas). Proper advocacy groups and awareness needs to be disseminated among the people as a part of government policy, with deeper penetration into India.

28

Sahil Ahmad, 3rd Semester, Faculty of Law, Jamia Millia Islamia, New Delhi.

BIBLIOGRAPHY







Criminal Law – K.D Gaur

Criminal law – P.S.A. Pillai

Criminal law – Ratanlal and Dherajlal





Indian Penal Code, #%$^

timesofindia.indiatimes.com



Britannica Encyclopaedia



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Class notes

Sahil Ahmad, 3rd Semester, Faculty of Law, Jamia Millia Islamia, New Delhi.