BEWARE THE GOVERNMNET IS WATCHING

CYBER PORNOGRAPHY IN INDIA

LEGAL OR ILLEGAL[i]

 By Legith T Kottakkal[1]

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

1. 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

1. 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”

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[1] Author is a practicing lawyer at High Court of Kerala

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[i] Disclaimer:- Any or all views or opinions presented in this article are solely those of the author and do not necessarily represent the general law of the land. This article is only meant for academic discussions and thought sharing.  The views made herein are only the opinion of the author that may be true of false and never advises a person to act upon the thoughts presented in the article. This article is not intended to provide any legal advice or analysis. The author or the article has no responsibility if a person acted upon the thoughts shared in the article. This article is intended only for any academic purposes and in no way or means encourage or support the use of porn websites by any individual.

[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.