The Laws Relating to Obscenity, Pornography and Indecent Representation of Women in the World of Technology

Neha Kheria

Abstract

Various countries in the world punish for publishing and transmitting obscene, objectionable and pornographic material and indecent representation of women and restrict freedom of speech and expression on the sheer logic of such material lacking any serious, literary, artistic, political, or scientific value, depicting women in a patently offensive way, exploiting them for commercial gain, and therefore, considered to be a menace to our society. Availability of the aforesaid material in the market, online or offline, has posed a serious challenge before the world. On one hand at stake is an adult’s fundamental right to speech and expression provided under Article 19(1) of the Constitution of India and right to privacy which is intrinsic part of right to life enshrined under Article 21 of the Constitution of India and on the other hand, is the State’s duty to protect minors from exposure to such objectionable and obscene content which has the tendency to debase and corrupt their developing minds. In today’s world of science and technology when internet is omnipresent, penetrating in our daily life without even asking for our permission, where everything is available with a click on the mouse, which makes filtering almost impossible, it has made the work of the legislature more complicated. Through this research paper, an endeavour has been made by the researcher to discuss laws relating to obscenity, pornography and indecent representation of women. The article further discusses the various challenges before the legislature and an attempt has been made to provide solutions to the problems pertaining to the issues.  

Introduction

A man is considered to be born with certain natural rights which are so fundamental for his or her well-being that they can’t be abridged or taken away from him or her. Article 19 (1) of Part III of the Constitution of India ensures one’s fundamental right to freedom of speech and expression. Although as we live in a society, it demands from all of us to shed certain part of our right so as to establish and maintain a peaceful society, therefore none of the fundamental rights provided under Part III of the Constitution are absolute. Our freedom of speech and expression is also subject to certain limitations contained under Article 19 (2) of the Constitution of India, decency and morality being some of them.

Various countries in the world punish for publishing and transmitting obscene, objectionable and pornographic material and indecent representation of women and restrict freedom of speech and expression on sheer logic of such material lacking any serious, literary, artistic, political, or scientific value, depicts women in a patently offensive way, exploits them for commercial gain, and therefore, are a menace to our society.

Availability of the aforesaid material in the market, online or offline, has posed a serious challenge before the world. On one hand at stake is an adult’s fundamental right to speech and expression and right to privacy and on the other hand, is the State’s duty to protect minors from exposure to such objectionable content.

In today’s world of science and technology when internet is omnipresent, penetrating in our daily life without even asking our permission, where everything is available with a click on the mouse, which makes filtering almost impossible, the work of the legislature has become more complicated.Through this research paper, an endeavour has been made by the researcher to discuss laws relating to obscenity, pornography and indecent representation of women. The article further highlights the various challenges before the legislature and an attempt has been made to provide solutions to the problems related to the issues.  

Obscenity, Pornography and Indecency

In a catena of cases, it has been reiterated that words ‘obscenity’, ‘pornography’ and ‘indecency’ are not identical to each other. The word obscenity found its origin from a Latin word ob (means ‘to’) ceanum (means ‘filth’). Pornography, which means “writing of harlots” or “depictions of acts of prostitutes”, is derived from the Greek word porne graphein. The Williams Committee[1]defined pornography as sexually explicit representation which has the function or intention of sexually arousing its audience. While other construed pornography as material which intends to arouse one’s sexual feeling that includes sexual or violent elements[2].

The word ‘Indecent’ means something which is below the accepted standard of behavior, considered to be filthy and disgusting especially in relation to sexual matters. While every obscene material would automatically be indecent, the vice-versa is not true. Obscenity is at the upper end of the scale, indecency is on lower end[3]. The Court, time and again, held that the term ‘obscenity’ should not be restricted to sex, appealing to one’s sexual desires, as its sphere is wider than that and people get corrupted by violence as well[4].

Pornography is obscenity in a more aggravated form. In P.K. Somnath v. State of Kerala[5], the Court stated that nudity per se can’t be held obscene, pornography or indecent, unless the expressions itself convey provocation, therefore there has to be something more suggestive of the same. Though the Court didn’t explain what exactly one must look for to fill up that gap.[6]

It is noteworthy that Indian laws do not define what pornography is. Even other countries like USA and U.K, have not given legal connotation to this term, as the law is spatio-temporal and it is quite a task to provide definition of pornography, indecency or obscenity in light of multi-cultural and multi-national environment over the internet. Standard of morality varies from person to person, culture to culture and country to country. It can never be constant and uniform therefore what may have been termed obscene in the past may not be so in this modern world when the capacity of tolerance in people has augmented. The terms obscenity, pornography and indecency however can be understood in a wider possible manner[7].

Obscenity is an offence under section 292 of the Indian Penal Code, 1860 (hereinafter IPC)[8]and under section 67 of the Information Technology Act, Amendment Act, 2008 (hereinafter IT)[9]. Though unlike section 292 IPC, Section 67 of the IT Act punishes transmission or publication of obscene material through electronic material irrespective of the fact that transmission or publication was done for the purpose of further selling, hiring, importing, exporting etc. Section 67 of the IT Act is nothing but mere facelift of Section 292 of the IPC, which itself is based on a test propounded by the UK Court in Regina v. Hicklin[10]. Through this judgment, the very first attempt was made to provide a definition of obscenity. The Queen bench held that where the objectionable content has a tendency “to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall[11], the content can be said to be obscene. The test was understood to be applicable on isolated passages of a work.

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The US Supreme Court overruled the Hicklin Test in the year 1933 and held that not the isolated obscene passages, but the libidinous effect of the whole publication should be the criteria to determine obscenity[12].  England also abandoned the Hicklin Test in 1954, though Indian Laws on obscenity still echo the Hicklin Test (though the Hon’ble Supreme Court, through its various judgments, has restricted its extent). Therefore, whereas in England[13], novel “Lady Chatterley’s Lover” was found to be not obscene as the jury was ordained to take into consideration the effect of whole book, it was declared to be obscene in India in Ranjit D. Udeshi v. State of Maharashtra[14].

In Roth v. United States, the Supreme Court redefined obscenity and introduced a community standard test. The Supreme Court held that material is obscene only if the dominant theme of objectionable content applying community standard test, appeals to prurient interest of average person[15].

US Supreme Court in 1973 propounded a triple test for determining whether a work is obscene or not. It is as follows:

  1. That the average person, applying the contemporary ‘community standards[16]’, would find that the work, taken as a whole, appealing to the prurient interest.
  2. That the work depicts or describes in a patently offensive way, sexual conduct specifically defined by state law or applicable law.
  3. Whether the work taken as a whole lacks serious literary, artistic, political or scientific value[17].

Instead of giving literal interpretation to the obscenity laws, the Hon’ble Supreme Court applied community standard test in Samaresh Bose v. Amal Mitra[18], S. Khushboo v. Kanniammal[19]and Aveek Sarkar v. State of West Bengal[20]and held the Hicklin test is not the correct law and therefore it is the community standard test which holds good and thus, must be applied to determine obscenity. The Court further held that:

“A bare reading of Sub-section (1) of Section 292 , makes clear that a picture or article shall be deemed to be obscene (i) if it is lascivious; (ii) it appeals to the prurient interest, and (iii) it tends to deprave and corrupt persons who are likely to read, see or hear the matter, alleged to be obscene. Once the matter is found to be obscene, the question may arise as to whether the impugned matter falls within any of the exceptions contained in Section. A picture of a nude/semi-nude woman, as such, cannot per se be called obscene unless it has the tendency to arouse feeling or revealing an overt sexual desire. The picture should be suggestive of deprave mind and designed to excite sexual passion in persons who are likely to see it, which will depend on the particular posture and the background in which the nude/semi-nude woman is depicted. Only those sex-related materials which have a tendency of “exciting lustful thoughts” can be held to be obscene, but the obscenity has to be judged from the point of view of an average person, by applying contemporary community standards[21].”

Further, the mere fact that some material contained nude or semi-nude photographs, would not ipso facto be considered as obscene or indecent; rather the message it conveys has to be taken into account as well.

Section 67 A of the IT Act[22] proscribes publication or transmission of sexually explicit material through electronic medium. The provision doesn’t expressly uses the term ‘pornography’, though from the language employed, it becomes quite clear that the legislature wanted to prohibit circulation of pornographic content.

Section 67B was introduced in the IT Act [23]to combat child pornography with an iron hand. It prohibits and punishes publication, transmission, possession and viewing of material that exhibits children engaged in sexually explicit acts or conduct[24]. Majority of the countries proscribe Child pornography and there are various international treaties like International Conference on Combating Child Pornography on the Internet, Vienna, 1999, Convention on the Rights of Child, 1989 etc. which entreat states to bring domestic laws in consonance with international standards so that child pornography can be handled with an iron hand. Accordingly, Section 67B was introduced in the Information Technology (Amendment) Act, 2008. While the initiation made by the government is laudable, the legislature failed to envisage the situation where an adolescent himself or herself transmits his/her sexually explicit pictures to his or her friends who might themselves be below 18 or above 18. A literal interpretation of the provision would result into punishing not only the adolescent sender liable under this Act for publishing or transmitting such pornographic content but also his or her friends for possessing such content[25].       

Then we have Section 66E that punishes capturing, publication or transmission of a private area of any person intentionally or with knowledge, irrespective of his or her gender without his or her consent, which leads to infringing the privacy of that person[26]. The idea was to protect women from malevolent acts of the miscreants who install hidden cameras in hotel rooms, lodgings, changing rooms, public washrooms and ex-boyfriends and ex-husbands who circulate videos or photographs of their ex-girlfriends and ex-wives with a vengeance.

The Government is empowered to issue directions for blocking access to any site under Section 69A of the IT Act[27]. Though the government has to abide by certain procedures and rules provided under the IT (Procedure and safeguards for blocking for Access of information by public) Rules, 2009.Section 79 of the IT Act provides protection to intermediaries and absolves them from guilt if they were merely providing a platform to share or exchange information, the objectionable content was posted without connivance and consent of intermediaries by some third party and intermediaries were acting with due care and diligence[28].

As to section 292 of the IPC, 1860 which deals with offence of obscenity, it is not broad enough and is inadequate to combat instances of indecent representation of women. Therefore, came the Indecent Representation of Women (Prohibition) Act 1986, which proscribes depiction of the figure of a woman in a manner which is derogatory or denigrating to a woman or which is likely to corrupt public morality. The Act was enacted with the aim to discourage exploitation of women for commercial gains, using them as a mere object by showing their body in indecent or disrespectful manner, for boosting the sale of their products.

Further, the Court highlighted the difference between vulgarity and obscenity in Samresh Bose and Another v. Amal Mitra and Another.[29]It was held that while “Vulgarity arouses a feeling of disgust and revulsion, obscenity has the tendency to deprave and corrupt those whose minds are open to such immoral influences”. Therefore a novel may be vulgar but might not be obscene[30].

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In B. Rosaioh v. State of A.P[31], the Court held that indecent exposure of one’s person or sexual intercourse in a public place will be punished under section 294[32], which punishes doing any obscene act in public.

Indecent Representation of Women has been defined in the Act to mean “the depiction in any manner of the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent, or derogatory to, or denigrating to women, or is likely to deprave, corrupt or injure the public morality or morals”[33].

Section 3 of the Act punishes for publication or participating in arranging publication or exhibiting advertisement that contain Indecent Representation in any form[34].

Section 4 prohibits production, selling, letting or hiring or distribution of material that contain indecent representation of women. The provision has further carved out certain exceptions where the main provision shall not be applicable. So, if the material in any form is published “for public good, as it is in the interest of science, literature, art or learning or other objects of general concern or it is used in a bona fide manner for religious purposes or on any ancient monument, temple, or car which is used for carrying idols or for any religious purpose, a sculpture, engraved or painted, or it is a film on which part II of Cinematograph Act, 1952 would be applicable, then despite the fact that it indecently portrays women”[35], it will not be hit by Section 4 of the Act.    

Section 7 of the Act[36]further makes liable “the director, manager, secretary or any other officer of the company”, for the act of the company, if the offence was committed with the consent or connivance of such director, manager, secretary or officer of the company.

Indecent Representation of Women (Prohibition) Bill 2012

As the present 1986 Act focuses primarily on the print media, in light of technological advancement and taking into consideration the National Crime Record which recorded large number of offences committed under the concerned Act, it became necessary to widen the scope of the Act by including internet and satellite based communication, multi-media messages etc.[37], so that it can be made more effective, providing more stringent punishment in case of breach[38]. The Bill further extends the power of search and seizure of any material by investigation officer, if the officer has reason to believe that an offence under the Act has been committed.

Legality of Censoring Obscenity, Pornography and Indecent Representation of Women

As already said in the introduction, no fundamental right given to us is absolute and therefore it can be curtailed on the various grounds provided within the Articles itself. Similarly, one’s right to freedom of speech and expression can be restricted on the various grounds provided under Article 19 (2) of the Constitution of India[39], decency and morality being some of them[40]. The legislature not only can curb dissemination of obscene and pornographic material, curbing circulation of indecent content within the society too, would be perfectly legal.

It is required to be specified that constitutional validity of section 292 of the IPC was challenged in Ranjit Udeshi[41]. While holding the constitutional validity of section 292 of the IPC the Hon’ble Court held that freedom of speech and expression provided under Article 19 (1) is subject to decency or morality under Article 19 (2) of the Constitution of India. 

Challenges before the Legislature

The legality of censoring objectionable content was condemned by various civil libertarians who demand regulation instead of total ban on such contents spreading within the society, the ban however found support from various parochialisms, parents and other sects of the society, who consider a ban necessary to protect the sexual exploitation of women and children and to reduce crimes committed against women. From the aforesaid discussion there remains no doubt about legality of restraining freedom of speech and expression if it is below the parameters of decency and morality. Therefore, the real question before us is not whether such ban is maintainable, but how to determine the standard of decency and morality and should that ban be imposed by the government or not.

The aforesaid question cannot be determined without taking into account the pros and cons of such a ban; therefore, it is necessary to ascertain the effectiveness of the present law, the relationship between crimes committed against women and objectionable material which is obscene, pornographic and indecent, within the society.  

Starting with the efficiency of the existing law, if one peruses the landmark judgments on obscenity, pornography and indecent representation of women, he or she would easily find out that we have travelled a long way from Hicklin to contemporary community standard test. It would not be wrong to say that on the question of content to be obscene, pornographic and indecent, a Judicial Officer’s own perception plays a vital role and its effect on the verdict can’t be totally ruled out. On one hand, we have the Ranjit Udeshijudgment which declared the novel “Lady Chatterley’s Lover” obscene which, however, was found to not be obscene in the very country from which the Hicklin Test was originated and on the other hand, we have the progressive judgment of Aveek Sarkar which clearly declared that it is the contemporary community test which holds good today and therefore, even a nude or semi-nude photograph cannot prima facie be declared obscene or indecent, and everything depends upon the message it wants to convey or deliver and the posture in which that photograph was taken.

On the adult pornographic content too, we find our judiciary divided. While the Hon’ble former Chief Justice of India H.L Dattu, said in light of Article 21 that we can’t stop people from watching porn[42], Hon’ble former Chief Justice Dipak Misra issued a direction to the government to ban child pornographic sites immediately and gradually to ban other pornographic sites as well[43].

It is noteworthy that Section 67A of the IT (Amendment) Act 2008 uses the word “sexual explicit”, however what is sexual explicit, is nowhere defined. The term is vague and again the provision is left on the discretion of the judiciary to decide on its own, the standard of sexual explicit to hold a person liable under this section.

Apart from IT Act, Indecent Representation of Women (Prohibition) Act, 1986 is a glaring example of sincere intention of the legislature missing the mark. The Act was enacted with the aim to prevent exploitation or indecent representation of women for commercial gains and to forbid objectification of women, but unfortunately, the Act failed to achieve its purpose and to bring substantial difference in the state of affairs. The test applied to determine indecency is the same for obscenity which makes the Act dead letter. Further, Indecent Representation of Women (Prohibition) Act, 1986 ignores the significance of consent given by the woman herself.

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With regard to the relation between crime against women and obscenity, pornography and indecent representation, various researches have been conducted on the topic, but no research has conclusively provided any direct link between the two[44]. Standard of decency of a given country or society is directly proportional to the level of tolerance in the people of such society at a given point of time, therefore, standard of decency would also vary time to time. Therefore, content which can be declared obscene or indecent yesterday may not be so in the contemporary world.

Conclusion

In the end, it could be said that the need of the hour demands legislature to reframe definition of obscenity, pornography and indecency with precision, taking into consideration the contemporary community standard of decency and obscenity, to avoid two parallel courts of the same jurisdiction coming up to different conclusions on the identical issue of question of law and fact so that inconsistency in the law could be avoided and litigant would not be left guessing the outcome of the given case.                  

Further, in the absence of a direct link between crime committed against women and obscenity, pornography and indecency, there is a need to reconsider the ban imposed on publication and transmission of soft core pornography which doesn’t contain rape myths and violent pornography, which might be indecent or vulgar, raises feeling of disgust and revulsion but cause no harm to society. Banning such content pushes the multi-billionaire industry under the carpet, resulting into loss of revenue to the government, which could have been earned and used to regulate such industry.

To conclude, taking into account the Bentham utilitarian principle, Justice Bhagwati in[45], Savigny philosophy[46] it can be said that law must give maximum satisfaction to the maximum number of people, it must respond to the needs of society, otherwise it will stifle away the growth the society and if the society is vigorous enough, it will cast away the law itself. Therefore, law must grow with the growth of the society. 


[1] Report of the Committee on obscurity and film Censorship,London: Her Majesty’s Stationery Office (1979).

[2]Neil M. Malamuth, Pornography, (1999),

http://www.sscnet.ucla.edu/comm/malamuth/pdf/99evpc3pdf /.

[3]R. v. Stanley, 1 All ER 1035 (1965).

[4]Sukanda Haldar  v. State, A.I.R 1952 Cal 214.

[5] P.K. Somnath v. State of Kerala, 1990 CrLJ 542 (ker).

[6] Nemika, Obscenity vis a vis Indecency Laws- A need for legislative reform, CrLJ (2009).

[7]Ibid.

[8]Indian Penal Code, 1860 § 292.

[9] Information Technology (Amendment) Act, 2008 § 67.

[10]Regina v. Hicklin 1868 LR 3 QB 360.

[11]Regina v. Hicklin (1868) 3 QB 360.

[12]United States v. one Book entitled ‘Ulysses’, 72 NY 705 (1934).

[13] R v Penguin Books Ltd. 1961 Crl. Law Review 176.

[14]Ranjit D. Udeshi v. State of Maharashtra 1969 (2) SCC 687.

[15]Roth v. United States, 354 US 15 (1973).

[16] United States v. Thomas 74 FD 3 d 701(6th Cir., 1996), the court clarified that community standard of the particular place where the material is assessed shall be the touchstone to determine whether an objectionable content is obscene or not. The court further emphasized the need to introduce a new definition of ‘community’ when obscenity committed through internet  quoted in Vageshwari Deswal, Legal Control of Obscenity: With Special Reference To Cyber Pornography DLR (2011).

[17]Millar v. California, 413 US 15 (1973).

[18]Samaresh Bose v. Amal Mitra (1985) 4 S.C.C 289.

[19]S. Khushboo v. Kanniammal (2010) 5 S.C.C 600.

[20]Aveek Sarkar v. State of West Bengal (2014) 4 S.C.C 257.

[21] (2014) 4 SCC 257.

[22]The Information Technology Amendment Act, 2008, § 67A.

[23] Section 67B of The Information Technology Amendment Act, 2008, §67B.

[24]Ibid.

[25]Vageshwari Deswal, Legal Control of Obscenity: With Special Reference To Cyber Pornography, DLR, (2011).

[26]The Information Technology Amendment Act, 2008, § 66E

[27]The Information Technology Amendment Act, 2008, § 69A.

[28]The Information Technology Amendment Act, 2008, § 79.

[29]Samresh Bose and Another v. Amal  Mitra and Another 1986 CrLJ 24 (SC).

[30] Samresh Bose and Another v. Amal Mitra and Anr. 1986 CrLJ 24 (SC).

[31]B. Rosaioh v. State of A.P 1991 CrLJ 189 (AP).

[32]Indian Penal Code, 1860, § 294.

[33]Indecent Representation of Women (Prohibition) Act, 1986, § 2(c).

[34]Indecent Representation of Women (Prohibition) Act, 1986, § 3.

[35] Indecent Representation Of Women Act, 1986, § 4.

[36]Indecent Representation of Women (Prohibition) Act, 1986, §  7.

[37] Indecent Representation of Women (Prohibition) Bill, 2012

Define the “indecent representation of women” to mean the depiction of the figure or form or body or any part thereof, of a woman in such a way as to have the effect  of being indecent or derogatory to or denigrating women or is likely to deprave, corrupt or injure public morality.

[38]For committing the offence first time the bill provides punishment for three years and fine for not less than fifty thousand rupees which may be extended up to one lakh rupees. For subsequent offence minimum punishment would be two years which may be extended up to seven years and minimum fine would be 1 lakh which may extend up to five lakh rupees.

[39]India Const. art. 19.

[40] India Const. art. 19, cl.2.

[41]Chandrakant Kalyandas Kakodar vs The State Of Maharashtra AndOrs1969 (2) S.C.C 687.

[42]Harish V Nair, Supreme Court says India can’t ban porn: CJI says a total ban on sex sites would violate privacy and personal liberty, (November 19, 2019),http://www.dailymail.co.uk/indiahome/indianews/article-3153957/Supreme-Court-says-India-t-ban-porn-CJI-says-total-ban-sex-sites-violate-privacy-personal-liberty.

[43]Live Law, Block child pornographic sites explore, (November 19, 2019), http://www.livelaw.in/block-child-pornographic-sites-explore-if-viewing-porn-in-public-can-be. prohibited-sc-to-centre.

[44]Suresh Bada, Math, Biju Vishwanath, Ami Sebastian Maroky, Naveen C. Kumar, Anish V. Cherian, and Maria Christine Nirmala, Sexual Crime in India: Is it influenced by Pornography, Indian J pscychol Med, Apr- Jun; 36(2) 147-152 (2014); N. Malamuth,  & J. Ceniti, Repeated exposure to violent and nonviolent pornography: Likelihood of raping ratings and laboratory aggression against women,  Aggressive Behavior, 12, (1986), Christopher J. Ferguson, Richard D. Hartley, The pleasure is momentary…the expense damnable? The influence of pornography on rape and sexual assault, Aggression and Violent Behavior 14 (2009).

[45] National Textile Workers Union v. PR Ramakrishnan 1983 A.I.R 750, 1983 SCR (3) 12.

[46]Law is not static. It keeps revolving. It grows with the growth of people, strengthens with the strength of people and finally dies when the nation loses its nationality. Law is nothing but reflection of its people belief, their opinion and ideology which keeps changing with the passage of time.