We all are living in the Cyber World where Technology is the daily need of our life. Cyber Obscenity considered 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. cyber pornography has become a big industry. Oxford Dictionary defines term “obscenity” as a “state of being obscene or an extremely offensive word or expression” and “obscene” word as “description of sexual matter which is offensive or disgusting by accepted standards of morality and decency.”
Comparison Between Two Legal Systems
As we know that IT act is the at which provides solid and clear provisions for obscenity. The act has been adopted from UNICITERAL model of USA and thus, it becomes important to study and compare both the systems to know the exact scenario of obscenity offence in both the countries:
|US Legal System||Indian Legal System|
|This offence is governed under the Communications Decency Act, 1998, Child Online Protection Act, 1998 and Child Pornography Prevention Act, 1996.||It is governed under IT Act, 2000, The Protection of Children from Sexual Offences Act, 2012, Criminal Procedure Code, Indian Evidence Act and Indian Penal Code.|
|The mere possession of obscene material is not an offence but publishing that material is an offence.||In India also, possessing is not an offence but publishing or transmitting is an offence.|
|Child accessibility to porn sites is prohibited and punishable.||Browsing and downloading child porn images is a punishable offence.|
|The person found guilty of an offence can be punished by fine or imprisonment of 5 or more years.||The person found guilty of an offence can be punished by fines up to 2 Lakh or imprisonment up to 5 years.|
Laws Prohibiting Obscenity
- Constitution of India:- Article 19 (2) of the Indian Constitution provides that the state has the power to impose reasonable limitations on freedom of expression to maintain morality and decency. Also, In the case of Ranjit Udeshi v. State of Maharastra (AIR 1965 SC 881), the Court interpreted the word “obscene” as offensive to modesty or decency. The Court also observed that it creates a reasonable limitation on the right of freedom of expression guaranteed by Article 19(2) of the Constitution of India in the interest of morality or decency.
The Court went on to admit that obscenity has been understood that which depraves and corrupts those whose minds are open to such immoral influences, which suggests thoughts of a most impure and libidinous character, which is hard-core pornography, has a substantial tendency to corrupt by arousing lustful desires and tends to arouse sexually impure thoughts. In this case, the Hicklin test was applied and given due regard by the court to judge obscenity.
- Protection of Children from Sexual Offences Act, 2012:- It protects the children against offences of pornography, sexual harassment and sexual assault, etc. The Protection of Children from Sexual Offences (POCSO) Act, 2012 was enacted to provide a robust legal framework for the protection of children from offences of sexual assault, sexual harassment and pornography, while safeguarding the interest of the child at every stage of the judicial process.
- Indecent Representation of Woman (Prohibition) Act, 1986:-It prohibit the indecent representation of woman by writings, painting or through publication. It is an offence under this Act and punishable. Section 4 of the act prohibits the representation of woman, by writing, painting or by Publishing.
- Indian Penal Code,1860:- The Indian Penal Code vide section 292 defines the term obscene and provides for punishment for distributing any such object.
Section 292 (1) defines obscene as follows: “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, 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 on first conviction with imprisonment of either description for a term 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.
- Information Technology Act, 2000:- It Expressly contains the issue of online obscenity. According to this act storing or privately viewing of obscene material is legal as it does not specifically restrict it but transmitting or publishing the obscene material is illegal. Before 2008, section 67 was the only provision which prohibited the publication of obscene information including child pornography and obscenity.
Section 67A of the IT Act, 2000 specifically restricts the publication of sexually explicit material and section 67B of the Act prohibits child pornography. The important ingredients of an offence under section 67 are:
- Publishing:-The Oxford dictionary defines publish as “make generally known; announce formally promulgate, issue copies for sale to the public.”
- Transmitting:- The Oxford dictionary defines transmit as “pass on, hand on, transfer, communicate, allow to pass through, be a medium for, serve to communicate.”
- Causing to be published Obscene material in the electronic form
- Convention on the Right of the Child:- India is a signatory to the Convention on the Right of the Child on the state of children, child prostitution and child pornography. Section 67-B was added to the IT Act, 2000. Section 67-B criminalizes every type of pornography. Section 67A and 67B are the only sections which are non-bailable as per section 77B of the Act, whereas others are bailable.
Service Providers and Search Engines
As the Search Engines and Service providers are the main source of Transmission and medium for publishing obscene material, The Information and Technology Act, 2000 provides certain provisions to them. Section 292 of IPC and the Information Technology Act (Section 67) restrict obscenity on cyberspace by providing a penal consequence for publishing, transmitting or causing to be published.
As Section 292 of I.P.C. With the enactment of the Information Technology Act and the amendments brought to S. 292 of I.P.C. by inserting sec. 29 ‘A’ to the Penal Code, is now applicable even to obscenity in the electronic media. This also makes it applicable to both service providers and search engines.
Tests for Obscenity
- Hicklin test:- It was laid down in English law in the case of Regina v. Hicklin. On Application of Hicklin’s test, a publication can be judged for obscenity based on the isolated part of the work considered out of the context. While applying Hicklin’s test the work is taken out of the whole context of the work and then it is seen that if that work is creating any apparent influence on most susceptible readers, such as children or weak-minded adults.
- Roth Test:-It provides Courts to judge obscenity in case of Roth v. the United States, In this case, it was held that only those sex-related materials which tended exciting lustful thoughts were found to be obscene and the same has to be judged from an average person by applying contemporary community standards. This test was sharper and narrower than the Hicklin’s test as it does not isolate the alleged content but limits itself to the dominant theme of the whole material and checks whether, if taken as a whole, it has any redeeming social value or not.
In Ranjit Udeshi v. State of Maharastra(AIR 1965 SC 881), the Court used the Hicklin Test to check obscenity. Thus, we can say that Indian judiciary system uses the Hicklin test to verify whether an offence of Obscenity.
Obscenity is bailable, cognizable and triable by the court of Judicial Magistrate of First Class. Means that bail can be granted to the accused after the fulfilment of bail bond.
- K.A. Abbas v. Union of India and Anr (AIR 1971 SC 51.):- In this case, the Hon’ble Supreme Court validated the pre-censorship of content as an exception to the right to freedom of speech and expression. However, the court observed that the censors need to take into account the value of art while making their decision. The artistic appeal or presentation of an episode robs it of its vulgarity and harm and also what may be socially good and useful and what may not.
- Chandrakant Kayandas Kakodar vs The State of Maharashtra (AIR 1971 SC 51):- In this case, the Supreme Court observed that the standards of contemporary society in India are fast changing. The adults and adolescents now have available to them a large number of classics, novels, stories and pieces of literature which have a content of sex, love and romance. In the field of art and cinema also the adolescent is shown situations which even a quarter of a century ago would be considered derogatory to public morality, but having regard to changed conditions, are more taken for granted without in any way tending to debase or debauch the mind.
- Director-General, Directorate General of Doordarshan & Others v. Anand Patwardhan and Another (1996) 8SCC 433):- In this case an independent filmmaker challenged Doordarshan’s refusal to telecast his documentary, giving the reason that it contains scenes that could promote violence and its telecast would be against the policies of Doordarshan. The court held that though, there is some scene of violence and social injustices in the film but because of this it cannot be said that the filmmaker supports any of that, and this depiction is only meant to convey that such social evils still exist
- State of Tamil Nadu v. Suhas Kutti (Cr. Comp 4680/ 2004, (CMM, Egmore)):- It was the first case of conviction under section 67 of IT Act, 2000 in India. In this case, some defamatory, obscene and annoying messages were posted about the victim on a yahoo messaging group due to which the victim started receiving annoying calls. She filed an FIR and accused was found guilty under Section 469 and Section 509 of the Indian Penal Code 1860 and section 67 of the Information Technology Act.
- Avinash Bajaj v. State (NCT) of Delhi ((2005) 3 CompLJ 365 Del.):- It was the case in which obscene material was put up for sale by one person on the website Baazee.com and sold these clips to several people residing in various parts of the country in a very short duration. The issue was raised whether it was a publication under section 67 and the website had indirectly published the material.
The court held that the ultimate transmission of obscene material wouldn’t have been possible without initial facilitation by the website and therefore, the website was held liable under the section. Section 67-A was added in the Information Technology in the year of 2008.
Thus, we can conclude that obscenity is a vast and serious issue across the world and even in India. Information technology Act prohibits the commitment of this offence and provides strict punishment for the person found guilty of an offence. Obscenity is more of a social evil that crime. It is not through legislation that we can check or curb it. The only possible way out is by increasing and spreading awareness among the masses.
It can be stated that proper implementation of laws along with public awareness and education of women concerning their rights and legal remedies can play a crucial role in eradicating cybercrimes from our society. Such crimes cannot be curbed solely by enacting laws. Also, only looking from the angle of protection of the social mores would not suffice. The digital technology has grown faster than the laws governing technology. Hence the existing laws fall short to tackle the situation.