This article is written by Sayani Das, a student pursuing BBA. LLB(H) from Amity University, Kolkata. in this article she discussed the Application of Hicklin Test along with the detailed description of Child Pornograohy and Obscenity.

Introduction

The synonym of creativity can be drawn with respect to a child because when the child blooms like a flower he is filled with curiosity and inquisitiveness. And, the two characteristics are intrinsic to a child’s growth. But, fate can take its own turn whenever it wishes to and has the power to shatter the child’s present and future.

Child Pornography is the worst crime that can be committed by any kind of society. The other end of child pornography leads to child prostitution. The moment you think that it cannot get worse, it will be the worst situation ever!

So, basically Child Pornography is nothing but visual representation of sexually assaulting or abusing a child. It is a way of creating a black spot into the minds of young children which in reality creates a lot of hardships in the long run. Children are full of fun; they are colorful and full of life. An incident like this restricts their whole life like a live electric-wire and if they try to cross they will be burnt alive.

Therefore, it is the need of the hour that proper identification of the potential child abuser is implemented and along with it the sanction for the same should also be imposed on the wrongdoer. Some sort of fear needs to be created in the minds of the lawbreaker so that his hands shiver before committing such heinous crime. The Indian judicial system should aim at taking appropriate measures for the soon possible eradication of this dangerous social evil. And if the proper measures are not taken within a certain time period then the future of the country will be at risk and in the penultimate situation it might get doomed as well!

Child Pornography

Till 2008, there were no specific laws governing the heinous crime of Child Pornography and if such kind of crimes used to take place then the obscenity laws were made to forward to cover up the issue. But in 2008, the Information Technology (Amendment) Act, 2008 came into force which tried to put an emphasis on the “child pornography” issue as well. So, in 2008 an incident took place which revolved around a child.  

A case was filed in the High Court of Delhi, where a pornographic MMS of children was circulated online on a popular site. So, the offender was taken into custody under Section 67 of the Information Technology Act, 2000 (under which it punishes a person for transmission and distribution of obscene material through electronic media platform) and also under Section 292 of Indian Penal Code (Sale of obscene material). Murlidhar J, emphasized on the lack of specific legislation governing the issue of child pornography and stated that- India should develop a modernized legislation to fill up the gap between child pornography and appropriate punishment therein. And to this he also added that this issue requires the utmost priority and concern.

Contemporary to this time, there was an urge for criminalization of production and distribution of children pornography all over the world. To this end the Convention on Optional Protocol on the Rights of the Child on the sale of children, child prostitution and child pornography (CRC-OP) to start with the process of penalizing the offenders of child pornography. India gave its consent and signed the protocol on 15th November 2004 and ratified it on 16th August 2006.

Indian Scenario

In India, two committees were appointed for the proper governance of the laws regarding child pornography. The Expert Committee and the Standing Committee who were the main authority in regulating the IT (Amendment) Bill, 2006 gave their consent and recommended that a specific provision must be included to criminalize child pornography at the earliest.

By following the path of the Bill, 2006- two of the most important provisions came into force. Section 67B of the Information Technology Act was implemented on 27th October, 2009 and thereafter the Government of India implemented the Protection of Children from Sexual Offences Act, 2012 (POSCO) which plays a pivotal role in criminalizing the offence of child pornography.

The two legislations target different parts of child pornography. Section 67B was incorporated to deal with the object of child pornography, it specifically criminalizes pornographic portray of a child. Section 14 of POSCO on the other hand chose to target the subject of child pornography; it forbids and criminalizes the utilization of the child for the purpose of pornography. This eventually leads to two distinct forms of criminal liability. Whether or not the child is having consent is an absolutely irrelevant consideration while computing the offence of child pornography.

Criminal Responsibility

The Information Technology Act criminalizes production, publication and distribution of child pornography. Production basically means the making or manufacturing components from raw materials. Now, if we compare this definition with the above explanation of IT Act, it is easily understandable that raw materials are the audio, video, photographs by the use of which the sexually explicit materials of child abuse are prepared and are made open for the people to see.

Production includes creation of any “text and digital images”, depicting children in obscene or indecent or sexually explicit manner and recording “abuse pertaining to a sexually explicit act”. Apart from the above mentioned technology, the definition of ‘production, information and distribution’ also has the power to criminalize comics, novels and erotica which portrays children in sexually explicit manner.

The Act also forbids all forms of broadcasting, transfer, announcement, promotion, exchange, and distribution of components “portraying children in obscene and sexually explicit manner”. The circumstance is different with respect to adult pornography because that sector is still not criminalized but any kind of actions related with child pornography is a punishable offence under the umbrella of law. The term of punishment for the specific offence is 5 years and for any subsequent offences it will amount to 7 years.  But, without doubt the above offence and its respective sanction goes with an exception- if the component used is for any matters of science, literature, art or learning or other focus of general concern” or is for “bona fide heritage or religious purposes”. 

Protection of Children from Sexual Offences Act (POSCO) criminalizes the use of children for pornographic purposes in any form of media including the (a) representation of any private organs of the child; (b) usage of a child in real or simulated sexual acts (with or without penetration); (c) the indecorous or obscene portrayal of a child in filthy acts. The Act also illegalizes the act of storing any form or kind of pornographic material related to children directly or indirectly. The offender is penalized for omitting the offence in the commercial sector and not in the non-commercial zone.

Intercessor Liability

The basic element in transmission is the presence of an intermediary. Because intermediary is the middleman through whom the illegal content gets placed at the hands of the viewer. The same is the case in “child pornography”. This can be well explained with the help of an example- suppose ‘X’ uploads some illegal content to a particular site ‘M’ from a cyber parlor ‘N’. Here comes the role of “strict liability” that is attached with Section 67B (b) of the IT Act. Strict liability is basically imposed on situations with the intent of stopping something inherently dangerous. Therefore, any act committed under this section will itself be labeled as an offence. Thus, the pornographic content is transmitted from N’s computer N’s Internet Service Provider ‘A’ to site ‘J’ where it is stored. Thus, ‘N’, ‘J’ and ‘A’- three of them are equally responsible for the offence committed.

Law is there to punish the offenders, but it is always said that the process must be just, fair and reasonable to both the offender and the victim. A person is always considered to be innocent until proven guilty. Therefore, the IT Act provides with some exceptions with the help of which the offenders may or may not be proven guilty. 

The so called intermediaries can take the defence of that there was absence of ‘knowledge or consent’ despite ‘due diligence’. Due diligence is basically preventive measures that are taken up by a person to avoid committing a tort or offence.

This particular defence is codified under Section 79 of the IT Act. An intercessor will not be liable for an act or offence if the following proviso applies:

(i) if it did not commence the transmission;

(ii) select the receiver of the receiver; and,

(iii) changed or modified the information contained in the transmission.

There are also some provisions available for the intermediaries which they must follow before they publish or transmit any information. They must fulfill the duty of informing the users of not publishing any pornographic material which can pose danger to the minors.

The guidelines also imposed duty on the intermediaries to disable the illegal and violative content within 36 hours of it’s received from the affected person. This created a lot of difficulties for the intermediaries because they had to take up all forms and kinds of complaints whatever came their way without going for a check of validity. The Supreme Court took up the matter and ‘read down’ the IT Act as well as intermediary guidelines. The Supreme Court reiterated that the intermediaries are not liable to take up all complaints unless they receive a notification from the Central Government to expeditiously act on the matter of removing the illegal and violative content.

POSCO also requires that any person who has knowledge about an offence under the Act, report such information to the Special Juvenile Police Unit or the local police. Failure to report is punishable with six months imprisonment or with fine or with both. 

Obscenity Laws In India

Obscenity laws are very subjective in nature. Some acts may be declared as obscene at a certain point of time, but as the time and circumstances change the same set of acts may be declared as good in nature. Therefore, it is not possible to define the ‘obscenity laws’ in strait-jacket formula. Though in India, the obscenity laws are mainly covered by Indian Penal Code, 1860 (IPC) and the Information Technology Act, 2000 (the IT Act).

The Section 292 of Indian Penal Code states that the offender who transmits or causes to publish, any material which is lustful or appeals to the voyeuristic interests or if its effect is such as to tend to subvert and unscrupulous persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it will be covered under the umbrella of obscenity. Section 293 imposes restrictions on selling of illicit objects to young persons and prescribes the sanction for the same.

The provisions of Section 292 also provides with some exception, that is, if the act is committed for the sake of science, literature and religious purpose then the specific act won’t be regarded as an offence. This Section also clashes with Article 19(2) of the Indian Constitution as the article specifies the freedom of speech and expression. But the Constitution has taken a much wider approach in this regard and reiterated that the fundamental rights are subject to reasonable restrictions for violating the standards of morality on the public sphere. 

Section 67 of the IT Act punishes the same offence that is committed through the electronic media. Here, it is to be noted that any offence committed in the electronic platform can only be tried under the IT Act, 2000 and not IPC as Section 81 of the IT Act clearly specifies it’s overriding effect. The Latin term of ‘Generalia Specialibus non Derogant’ clearly states that a special law will always have an overriding effect on the general law.

The Hicklin Test & Its Evolution

The Background of Hicklin Test

There was a Court recorder in London during the era of the 19th Century. His name was Benjamin Franklin and after his name the test was named as “Hicklin Test”. Basically, it is an obscenity standard that originated in an English case- Regina vs. Hicklin (1868). In this case, Lord Chief Justice Alexander Cockburn gave a basic definition regarding the obscenity test and stressed upon a certain fact- like for example if a 14 year old boy is prone to watching pornographic content then through the Hicklin Test it can be checked whether there is any immoral influences or not. Another angle to it can be interpreted in a way- it is  a test to check if an external force influences immorality and if ‘yes’ to what extent. The intermediary also plays an important role in this respect which is emphasized by the words of the Lord Chief Justice- “into whose hands the publication of this sort may fall”.

Hicklin test used when there is a probability of corruption against “susceptible” minds

The Hicklin Test was developed by a country with no codified constitution. Therefore, credibility was at stake with respect to the First Amendment Act. Eventually, the Hicklin Test was defeated in a series of case laws which did not stand the check of First Amendment Act and other considerations. Hicklin Test was first adopted by the American Courts for the application of Federal Anti-Obscenity Act, 1873 also known as the ‘Comstock Act’ and subsequent state anti-obscenity statutes based on the federal act.

The Hicklin Test created the base for conviction which means that- if a component or material of publication has any lustful element which can arouse the sex appeal in any person, especially, the most susceptible youth readers then the publication as a whole will be considered as obscene. When an offender is passing through Hicklin Test then the person is not allowed to take the defence of literary value or scientific value of the publication.

Hicklin Test gave way to scrutiny and prosecution of literary publication

A case came up in the Circuit Court of Southern District of New York namely United States vs. Bennett (1879). This was a case in which the defendant was convicted of mailing a document advocating legalized prostitution. The Hicklin Test was brought into picture and led to the official scrutiny of literature and prosecution of serious works of contemporary fiction. Notable among them are- Theodore Dreiser’s An American Tragedy and D. H. Lawrence’s Lady Chatterley’s Lover in 1930; James Joyce’s Ulysses in 1933; Edmund Wilson’s Memoirs of Hecate County in 1948; and Henry Miller’s Tropic of Cancer in 1953.

Standing of Hicklin Test at a questionable point

1. The first instinct at which the Hicklin Test was judged not to be appropriate was when a federal district judge decided to allow James Joyce’s “Ulysses” to be imported and sold in America and this case came to be known as “United States v. One Book Named Ulysses (2d Cir. 1933). The main point of consideration in this case was whether the subject of the work was being able to stir any kind of lustful and voyeuristic thoughts in the minds of readers or viewers, the type of work was not taken into consideration. But, the Learned Judge of the U.S. Court John M. Woolsey reviewed the whole work thoroughly and did not find any kind of dirty element.
2. The landmark judgment regarding obscenity laws came through named Roth vs. United States 354 U.S. 476 (1957). The facts of the case were very simple- a person named Samuel Roth was convicted for violating a federal obscenity statute. He was charged with sending some materials through mail. The jury found him guilty. Prior to this, as already discussed the precedents of English case named Regina vs. Hicklin (1868) was followed which was very restrictive in nature and also the test left uncovered many facets of obscenity laws. 

Justice William J. Brennan Jr. initiated the Roth or Memoirs test for curtailing the Hicklin Test which was very confining in nature. The Memoirs Test came up in a subsequent case known as Memoirs  vs. Massachusetts  383 U.S. 413 (1966). Previously, a mere part of the material was considered to be obscene, but now the entire material needs to be considered for passing through the test of obscenity. The Roth test now targeted the ‘average or prudent person’ which implies that the conviction will now be based on a particular finding that how an average person is affected by the dominant theme of the material taken as a whole to appeal to the voyeuristic interest in sex. 

The Learned Supreme Court rejected the Hicklin test and summed up the judgment as to whether the dominant theme of the component appeals to the voyeuristic interest of the average person or not. Justice William J. Brennan Jr. defined obscenity in his own words- a material which primarily deals with sex in such a manner that will appeal to the voyeuristic interest of a person and also carries a tendency to ignite lustful imagination as a shameful and morbid interest in sex. 

In this way, Roth vs. United States (1957) became the first ever constitutional challenge to obscenity laws- the federal act and the statutes under that.

3. Jacobellis v. Ohio (1964), is another important pillar for the test of obscenity laws. Under this another feather was added on the cock. Justice Brennan re-interpreted the obscenity definition as- the material to be obscene; it must be “utterly without redeeming social value.” The phrase means that the material should be obscene to such a level that it will totally deteriorate the social and moral values of the community.
4. After decades of debate the Supreme Court in Miller v. California 413 U.S. 15 (1973),found out the stepping stone for establishment of the definition of obscenity for criminal prosecution and other related purposes.

The U.S. Supreme Court in a majority of 5-4 opinion by Learned Chief Justice Warren E. Burger established the three prongs which are explained below:

• The first step towards the test of obscenity would be to apply the Contemporary Community Standards. This means that whether the material taken as a whole could appeal to the voyeuristic interest of the average or prudent person (Roth Test).
• Whether the work portrayed through the material is patently offensive in nature as covered by the applicable State law. The phrase ‘patently offensive’ here means that the work or the material should be against the norms and value of society without any doubt.
• The work has to pass through the LAPS Test. This test checks whether the work is lacking in terms of serious  literary, artistic, political or scientific value.

The backbone of the obscenity test is the Miller vs. California case wherein the Roth or Memoirs test was overturned by removing the barrier of ‘utterly without social redeeming value’ prong and changing the community standards to local level from national level.

The broader appeal to community standards in determination of the first two prongs of the ‘obscenity test’ and eventually the assessment of “the average person” and taking into consideration the work as a whole fastened the rejection of the ‘Hicklin Test’.

Three Barriers On The Path Of Application Of Community Standards For Determination Of Obscenity:

1. Though the application of community standards were brought down to local level but still the Higher Court of the land allowed the trial court and the juries to decide on the application of community standards to local or national level as they deem fit.
2. Secondly, it poses a difficulty in front of the producers of adult materials that what they actually should follow while applying the test of community standards. Either they can determine from beforehand the rate of sensitivity in a particular area or they can self-censor themselves from publication. 
3. Lastly, the question of fact creates a barrier in determining whether the particular material will seem to be obscene in a specific locality, because the facts may vary from one situation to another.

At the end of discussion of this chapter, the growing concern of Child Pornography must be notes through an English case, namely, New York vs. Ferber (1982). This case specifically outlawed the child pornography, even if the material passed through the Millers Test. 

The Court ratified a New York statute prohibiting the production, exhibition or selling any component which portrays any activity by a child under 16 years of age which includes any kind of implicit or explicit sexual intercourse. Lastly, in 1996 the Congress also criminalized the production and publication through electronic media as well.

Indian Precedents

1. The Hicklin Test posed major problems for the Indian Courts as well. Notable among them is the case of Ranjit D. Udeshi .The main problem in this case was the conflict between the object of the two laws. Section 292 of Indian Penal Code required any material to be taken as a whole whereas; the Hicklin Test required the material content to be checked separately. Because of which the court found a mid-way and liberalized the Hicklin Test till the landmark judgment of Aveek Sarkar came up.
2. Aveek Sarkar & Anr vs State Of West Bengal And Anr on 3 February, 2014– the facts of the case was- a German magazine named “STERN” published an article with a picture of an renowned Tennis player, Boris Becker posing in a nude picture with his dark-skinned fiancée named Barbara Feltus, a German film actress which was photographed by none other than her father. 

The main motive behind such a bold shoot as informed by both the personalities -was the stringent protest against ‘Apartheid’ and also to convey to the spectator that love has the power to trap hatred and crush it.

The same picture was taken up by an Indian magazine named ‘Sports World’ and the photograph was re-published in Issue 15 dated 05.05.1993. In the same year 1993, ANANDABAZAR PATRIKA, a widely printed news paper in the region of KOLKATA, also published the same article with the picture in the second page on 06.05.1993. 

A practicing lawyer at Alipore Judges Court affirmed that he is a daily reader of the Sports World magazine and Anandabazar Patrika newspaper and based on that he lodged a complaint from the perspective of Section 292 of the Indian Penal Code against the Plaintiff herein the Editor and the Publisher and Printer of the newspaper as well as against the Editor of the Sports World, former Captain of Indian Cricket Team, late Mansoor Ali Khan of Pataudi, before the Sub-Divisional Magistrate at Alipore. The basis of his complaint was that the nude picture that appeared in the newspaper and the magazine had the power to corrupt the minds of the young readers and is also against the social, cultural and moral instincts of the community. It was pleaded by the lawyer that these kinds of activities should immediately be censored or banned to rescue womanhood from the powerful clutches of society.

The judgment of the Highest court of the land, the Supreme Court gave its judgment through the bench of Justice K.S. RADHAKRISHNAN and Justice A.K.SIKRI– nude pictures cannot be taken into the purview of obscenity under the meaning of Section 292 of IPC, unless the sexual desire is aroused in that particular person. The application of Hicklin Test was found to be inappropriate and hence the Roth test was adopted. But the application of contemporary community standards posed restrictions and created a lot of confusion. Therefore, the Miller Test was adopted which had a penetrating effect and has the power of giving full justice. 

3. in the case of Ajay Goswami – the Supreme Court stated that the community based standard has become outdated now and should be discarded immediately. Instead of that a new test that is responsible for the reader test should be applied. In this test the readers should be aware about whatever he or she is reading in this era of rampant technological advance. 
4. Avnish Bajaj vs. State (N.C.T.) of Delhi – the facts of the case were- an IIT Kharagpur student named Ravi Raj, placed on the website bazee.com a listing offering an obscene MMS video clip for sale with the username alice-elec. But as every other website, the bazee.com site also had restrictions in posting objectionable content. The item was posted online around 8.30 pm on 27.11.2004 and was deactivated at around 10 pm on 29.11.2004.

The Crime department of the Delhi police took up the matter. Through investigation, a charge sheet was formed against Ravi Raj, Avnish Bajaj, the owner of the website, and Sharat Digumarti, the person responsible for handling the content, as accused. Since, Ravi Raj was absconding, therefore the petition was filed by Avnish Bajaj for quashing the criminal proceedings instituted against them.

The Delhi High Court held that– a prima facie case is made out against the website under section 292 (2) (a) and 292 (2) (d) of IPC both in respect of listing and video clip respectively. The Court duly observed that as the site did not have any valid filters which could detect the listing or the pornographic content of what was being offered for sale, the website insisted the object in question to be actually obscene.

As per section 292 and 294 of IPC, the accused Avnish Bajaj could not be held liable because the IPC does not take into consideration the automatic criminal liability attaching to the Director when the company is the main accused.

Lastly, as regards Section 67, read along Section 85 of the Information Technology Act, the Court emphasized that a prima facie case was made out against the petitioner Avnish Bajaj, as the law takes into consideration the deemed criminal liability. However, the law did not portray Avnish Bajaj as guilty.

There are few other provisions which also criminalize the act of indecency, pornography and child sexual abuse. They are- Sections 2(c), 3 and 4 of the Indecent Representation of Women Prohibition Act, 1986 also covers within its ambit the prohibition of such acts, the telecast of illicit acts are prohibited by the provisions of The Cable Television Networks Regulation Act, 1995, Section 4 and Sec 5A of the Cinematograph Act, 1952 provides for the examination of films before release, to prevent the child from corrupting their minds the Young Persons Harmful Publication Act, 1956 was implemented.

Conclusion

The National Policy for Children was implemented in the year 2013 and the main objective of it was to achieve protection of children from pornography. Despite this, this imposition mechanism is still very weak. As per the National Crime Bureau Reports of 2015, 94 cases were recorded under section 94 and 95 of POSCO and only 8 cases were reported under section 67 of the IT Act in 2015.

An UNICEF Report stressed on the fact that there is utter inadequacy in legislations, services and mechanisms with respect to threats of child pornography and there is utmost need of up gradation and strengthening. 

The Indian Government has recently taken a step forward for making the enforcement more stringent for child pornography laws. An Advisory Committee was formed at all State levels in order to prevent and combat cyber crime against children.

There is an utmost need for the implementation of Online Portal which can be availed by the guardian of the child in case the child faces any sexual and mental harassment in the online platform. The Standard Operating Procedure (SOP) needs to be made stricter for the initiation of child pornography laws. 

At the individual level, we need to be more cautious about whatever we perform in social media. Prevention is always better than cure!

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