CYBER PORNOGRAPHY IN
INDIA
CONTENTS
1. Introduction
a.
Crux
Of PIL
b.
Opinion
Of Authorities.
2. Part A
a.
Laws
Prohibiting Pornography In India
3. Part B
Chapter 1. Publication Of Obscene
Materials
a.
Section
67
b.
Legal
Analysis
c.
Punishment
For Offences Under Section 67
Chapter 2- Publication Of Sexually
Explicit Material (Section 67. A)
a.
Section
67 A
b.
Legal
Analysis
c.
Punishment
For Offences Under Section 67 A
Chapter 3- Child Pornography
a.
Section
67 B
b.
Legal
Analysis
c.
Punishment
For Offences Under Section 67 B
4.
Constitutional
Right And Information Technology Act
5. Part C- Conclusion
A.
Watching
Porn May Not An Offence Under Section 67 And Section 67a.
B.
Downloading
Porn Materials May Be An Offence Under Section 67 And Section 67A.
C.
All
Modes Of Child Pornography Is Serious Offence
6. Tail Piece- Need For Sex Education
- INTRODUCTION
There
is no settled definition of pornography or obscenity. 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. Hence the websites registered outside India can well
accesable in India. Sometimes one mans pornography is other man’s artPornography
is now well accessable after the wide spread of internet worldwide. The
offences related to pornography and related are increasing day by day. The
demand for banning pornographic websites get national notice when a public
interest litigation was moved before the Supreme Court of India seeking a total
ban on such sites.
The crux of the PIL-
The petition has demanded an amendment to the IT Act so as to
make pornography on computer or mobile a crime, attracting severe punishment to
the producers, distributors and viewers of such sites. The petitioners have
blamed cyber porn for what they claim growing problems of psycho-physical
nature, including sexually transmitted diseases and sexual deformities among
others. The mater is now subjudice.
Opinion of Authorities
The
Supreme Court issued notices to various ministries as well as service
providers. The Government of India had made it clear that a clear cut and
absolute ban on porn sites is impposible and would cause greater harm to the
society. The service providers like Google etc had made it clear that without a
poisitive direction from the competent authority they are not in a position to
ban all the porn sites as it may affet the contractual rights and entail them
in a serious legal battle. The final order of Supreme Court is yet to come. Lets
us discuss the present situations regarding the implications and legal
consequences of the cyber pornography in India.
PART A
PORNOGRAPHY ILLEGAL IN
INDIA
- Laws prohibiting Pornography
in India.
Indian law penalizing cyber
Pornography are
a. Information
Technology Act 2000
b. Indecent
Representation of Women (Prohibition) Act and
c. The
Indian Penal Code
Here in this blog only offences
under Information Technology act is dealt with because it only deals with the
cyber pornography or pornography in electronic format. The rest Acts deals with
the pornography in other modes.
PART
B
OFFENCES -INFORMATION
TECHNOLOGY ACT 2000
Under
IT Act 2000 three offences are listed they are
1.
Publication of Obscene materials
2. Publication of Sexually explicit
material
3. Child pronography
CHAPTER
1
PUBLICATION
OF OBSCENE MATERIALS.
Section
67 Punishment for publishing or transmitting obscene material in electronic
form[ii]
LEGAL ANALYSIS
There
are three main ingredients under Section 67 to attracts an offence. Under Section 67 these three incrediants
together constitutes an offence that is to say if any one of the incrediants is
lacking then its not an offence. The three incrediants are
a. publishes
or transmits or causes to be published in the electronic form
b. 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,
c. to read, see or hear the matter contained or embodied in it.
By
the analysis of the ingredients to constitute an offence a person must publish
or transmit the same and the material must be of such a nature that satisfies
the above point (b) with an intention to read, see or hear the material. If any
of the ingredients is lacking then offence is not attracted.
PUNISHMENT FOR THE
OFFENCE COMMITED UNDER SECTION 67
If
a person is commiting the offence for the first time then
imprisonment of either for a term
which may extend to two three years and with fine which may extend to five lakh
rupees
If
a person is commiting the offence for the second or subsequent time then
imprisonment of either description
for a term which may extend to five years and also with fine which may extend
to ten lakh rupees.
CHAPTER
2
PUBLICATION
OF SEXUALLY EXPLICIT MATERIAL (SECTION 67. A)
Initially
during the enactment of Information technology Act in 2000 originaly Section 67
was incorporated but in course of time the misuse of electronic forms to carry
sexually explicit materials and child pornography increased and necessitated the
parliament to amend the Act in 2008 to include Section 67A and 67 B
Section
67 A Punishment for publishing or transmitting of material containing sexually
explicit act,etc. in electronic form[iii]
LEGAL ANALYSIS
There
are only two incredients to constitute the offence. They are
a. Whoever
publishes or transmits or causes to be published or transmitted in the
electronic form
b. any
material which contains sexually explicit act or conduct
Any
action of sexual nature if it is published or transmitted is punishable under
the Act.
PUNISHMENT FOR THE
OFFENCE COMMITED UNDER SECTION 67 A
If
a person is committing the offence for the first time then
imprisonment
of either description for a term which may extend to five years and with fine
which may extend to ten lakh rupees
If
a person is commiting the offence for the second or subsequent time then
imprisonment
of either description for a term which
may extend to seven years and also with fine which may extend to ten lakh rupees
CHAPTER
3
CHILD
PORNOGRAPHY
Even
browsing or seeking for Child pornography in India is totally illegal. In February 2009, the Parliament of India passed the Information
Technology Bill," banning the creation and transmission of child
pornography. Strict actions are taken by various authorites against
the child abuse. Child is a person who is not completed an age of 18. Section
67 B deals with the various types of the child poronography and child abuses
through the cyber world and in electronic form.
LEGAL ANALYSIS
Section
67 B Punishment for publishing or transmitting of material depicting children
in sexually explicit act, etc. in electronic form[iv]
Five
grounds are enumerated under this section. Each itself constitutes an offence.
apart from the incrediants of Section 67 and Section 67 A this Section includes
the following acts are offence
a. online
relationship with a child so as to offend the child’s morality
b. facilitates
abusing children online
c. records
in any electronic form own abuse or that of others pertaining to sexually
explicit act with children
This
section is different from Section 67 and 67 A mainly on the ground that even
search for pornographic materials involving children is an offence. Thus if a
person creates text or digital images, collects, seeks, browses, downloads,
advertises, promotes, exchanges or
distributes material in any electronic form is punishable under this act.
PUNISHMENT FOR THE
OFFENCE COMMITED UNDER SECTION 67 B
If
a person is committing the offence for the first time then
imprisonment
of either description for a term which may extend to five years and with fine
which may extend to ten lakh rupees
If
a person is commiting the offence for the second or subsequent time then
imprisonment
of either description for a term which
may extend to seven years and also with fine which may extend to ten lakh rupees
Thus
it is categorically clear that pornography is offence in India and is punishable
with harsh sentence compared to other offences.
4. CONSTITUTIONAL RIGHT
AND INFORMATION TECHNOLOGY ACT
Constitution guarantees the
fundamental right of freedom of speech and
expression[v],
it has been held that a law against obscenity is constitutional. The Supreme
Court has defined obscene as “offensive to modesty or decency; lewd, filthy,
repulsive.
Part C
Conclusion
A.
Watching
Porn May not an offence under Section 67 and Section 67A.
The
ingredient which constitutes an offence under Section 67 and 67 A is publishes
or transmits or causes to be publish
a. obscene
material in electronic form (Section 67)
b. material
containing sexually explicit act,
etc.(Section 67 A)
here the incrediants is publishes or transmit to
publish. The offence is attracted against a person who publishes or transmit it
through electronic form. Mere watching does not involves any of the offence. at
the same time seeking or browsing also is not an offence under Section 67 and
Section 67 A. another point is that by mere watchin a person is not reducing
the material into an electronic form[vi].
Here there is no deliberate act of keeing the material in electronic form. The
general law states that a person cannot be penalized without a positive law.
Here the act specifically prohibits the publish and transmission only. Mere
watching or viewing or browsing does not constitute an offence.
B.
Downloading
Porn Materials may be an offence under Section 67 and Section 67A.
Download a material is a deliberate act and not an
accidental one. It requires intention to possess the material as his own in an
electronic form. While downloading a material one is it to an electronic form.
It is as if participating in the offence of publishing or transmitting. If the
act is given a liberal interpretation then downloading materials is an offence.
No one is permitted to keep a thing which is offensive. When downloading a
material a person is keeping with him an offensive material. Like keeping a
dangerous weapon or material even without use is an offence, like that keeping
a material with a person can attract punishment.
C.
All
modes of Child Pornography is Serious offence
Mere watching, creates text or digital images,
collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material
in any electronic form depicting
children in obscene or indecent or sexually explicit manner is an
offence. online relationship with an intention to abuse a child is offence.
TAIL PIECE*- NEED FOR
SEX EDUCATION
Mere banning the
porn sites is like curing for the symptoms and not for the disease. The
increase in viewing porn sites is only a symptom of lack of sex education which
is the disease. The need for the sex education at the right spirit and in
correct perspective is the need for the society than to debating on ban of porn
sites. If a person is given sex education then the use of porn films and all
will automatically be reduced. In our society sex education still consider it
as a taboo. Correct knowledge and right wisdom keeps a man upright. Let the state
provide the same.
Sex
education is necessary
a. to
reduce the risk of certain sexual behaviors and
b. to
equip individuals to make informed decisions about their personal sexual
activity.
c.
to
liberate themselves from socially organized
sexual
oppression and to make
up their own minds.
d. For
open dialogue about physical intimacy and health education can generate more
self-esteem, self-confidence, humor, and general health.
“THE HEALTH AND WEALTH OF THE NATION
LIES IN THE HEALTH OF YOUNG GENERATIONS”
[ii] 67). Punishment
for publishing or transmitting obscene material in electronic form (Amended vide ITAA 2008)
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
two three years and with fine which may extend to five lakh 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 ten lakh rupees.
[iii] 67 A Punishment for publishing or transmitting of
material containing sexually explicit
act,etc. in electronic form (Inserted vide ITAA 2008)
Whoever
publishes or transmits or causes to be published or transmitted in the
electronic form any material which
contains sexually explicit act or conduct 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 ten lakh rupees and in the event of
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 ten lakh rupees.
Exception: This section and section 67 does
not extend to any book, pamphlet, paper, writing, drawing, painting, representation or figure
in electronic form-
(i)
the publication of which is proved to be justified as being for the public good
on the ground that such book, pamphlet,
paper, writing, drawing, painting, representation or figure is in the interest of science,literature,art,or
learning or other objects of general
concern; or
(ii)
which is kept or used bona fide for religious purposes.
[iv] 67 B Punishment for publishing or transmitting of
material depicting children in sexually explicit act, etc. in electronic form.
Whoever,-
(a)
publishes or transmits or causes to be published or transmitted material in
any electronic form which depicts
children engaged in sexually explicit act or conduct or
(b)
creates text or digital images, collects, seeks, browses, downloads,
advertises, promotes, exchanges or distributes material in any electronic form
depicting children in obscene or indecent or sexually explicit manner or
(c)
cultivates, entices or induces children to online relationship with one or more
children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource or
(d)
facilitates abusing children online or
(e)
records in any electronic form own abuse or that of others pertaining to sexually explicit act with children,
shall
be punished on first conviction with imprisonment of either description for a
term which may extend to five years and
with a fine which may extend to ten lakh rupees and in the event of 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 ten lakh rupees:
Provided
that the provisions of section 67, section 67A and this section does not extend
to any book, pamphlet, paper, writing,
drawing, painting, representation or figure in electronic form-
(i)
The publication of which is proved to be justified as being for the public good
on the ground that such book, pamphlet,
paper writing, drawing, painting, representation or figure is in the interest of science,
literature, art or learning or other objects of general concern; or
(ii)
which is kept or used for bonafide heritage or religious purposes
Explanation:
For the purposes of this section, "children" means a person who has
not completed the age of 18 years.
[v] Article 19 (a) of Constitution of India 1950.
[vi] Section 2(r) of
Information Technology Act 2000 "Electronic Form" with reference to
information means any information generated, sent, received or stored in media,
magnetic, optical, computer memory, micro film, computer generated micro fiche
or similar device.
