In this article, Noopur Kalpeshbhai Dalal pursuing M.A, in Business Law from NUJS, Kolkata discusses the punishment for Publishing or Transmitting Obscene Material in Electronic Form.
Introduction
The entire world in Cyberspace is a place under one rooftop. The thoughts, considerations, articulations, views, culture, convention and traditions spill out of one corner to the next corner of the globe with a single click. With the outpouring from one corner to another of these cultures, conventions, traditions, articulations, perspectives, contemplations and thoughts the unavoidable hardship i.e. the flexibility and agreeability and blending of one culture with the other was acknowledged, a major conflict between the materialistic west and spiritual east. Pornography is one such zone of significant clash. It has been from the very initiation a debate issue.
The Internet has offered ascend to another platform for the online distribution and utilization of obscene information and data. Billions of individuals around the globe are going through websites taking into account this information and data. These websites contribute to the biggest development sector of the digital economic world. However, as the utilization of internet-web has outgrown with the passing of time, it is misused additionally and an expansive number of various sorts of crimes are submitted through this internet web such as hacking, IPR infringement, cyber terrorism, cyber fraud, cyber defamation, cyber forgery, cyberstalking and so on. One of the major of these crimes is cyber obscenity.
Obscenity is an exceptionally delicate issue everywhere throughout the globe yet there is no settled meaning of the word “Obscenity” under any law. What is naked workmanship or sexually unequivocal thing for one individual might be obscene or porn for another. Obscenity on the Internet is not typically a crime. Internet-Web has given a medium to the assistance of violations like Pornography or Obscenity. Digital Obscenity is the exchanging of sexually expressive materials within the internet. Despite the fact that the Indian Constitution ensures the freedom to expression and freedom of speech, it has been held that a law against obscenity is constitutional. The Supreme Court of India has characterized obscene as “repulsive, offensive to modesty filthy, decency or lewd “. It is extremely hard to affirm whether any pornographic material is illegal or not? One specific obscene material might be illegal in India however not in different nations. The test for pornography was first set out by the Regina v. Hicklin[1], as a propensity to debase and degenerate those whose brains are open to such shameless impacts and into whose hands a distribution of this sort may fall.
Definition and Meaning of Cyber Obscenity
The word “Cyber Space” was first utilized by William Gibson in his novel “Neuromancer” 1982. The word Cyber or Cyberspace indicates a virtual situation inside which organized PCs’ action happens and Obscenity is any announcement or act which firmly outrages the predominant profound quality of the time. Obscenity is a lawful term that applies to anything hostile to ethics and is frequently likened with the term pornography. Obscenity is gotten from the Latin word obscene. In R.V. Hicklin[2], the word obscene was plainly characterized as “Any issue which tends to debase or degenerate those whose psyches are interested in corrupt impact.”
The Hicklin test expresses that an administering body may forbid anything that “debases and undermines those whose brains are interested in such corrupt impacts and into whose hands a production of this sort may fall.” Digital obscenity is the exchanging of sexually expressive materials inside the internet. The digital pornography or obscenity talk about is exceptionally mind boggling in light of the fact that pornography is not really unlawful. The test is the United Kingdom and different locales is regardless of whether the materials are obscene and debase its watchers, however, there are significant lawful and good contrasts as to criteria that empower law implementers to set up obscenity and deprivation. In England, for instance, people every day see scandalous pictures, however, the different aspects of the mass media. These same pictures may be lawfully obscene in some Islamic social orders, yet they are considered splendidly adequate in more lenient nations.
As per Supreme Court of India, “the idea of obscenity would vary from nation to nation relying upon the measures of ethics of contemporary society.” And that obscenity has a propensity to debase and degenerate those whose brains are interested in such improper impacts.
History of Cyber Obscenity
The delineation of such obscene expressive acts is as old as the human progress itself. However, the cutting edge idea of obscenity i.e. digital obscenity came after the foundation of the Internet. Invention of internet in the mid-1980’s was made by the National Science Foundation (“NSF’) which financed the fiber-optic joins that shaped the foundation of the Internet. At first, the Internet was, for the most part, restricted to clients who had work related electronic mail account on a PC keeps running by their manager. In 1991, the NSF lifted confinements against business utilize. Today, the Internet is accessible to anybody with a PC, modem and mobile phone. Despite the fact that obscenity was at that point exhibit in the public eye as books, magazines or recordings. Yet, after the creation of the web these are made accessible inside the virtual space i.e. the internet. Subsequent to making accessible these obscene materials in the web, these are exceptionally close to the clients. Accordingly, in the present era cyber obscenity viz. digital obscenity is conferring by individuals of each class of society in each nation. The legitimate status of the present day porn industry shifts from nation to nation. Generally, nations allow some level of entertainment to adults. While a few nations boycott the pornography. These nations are Bahrain, Cuba, Kenya, Saudi Arabia, Singapore, Indonesia, Iran, Egypt, Kuwait, UAE, Malaysia and India.
Transmitting Obscene Material in Electronic Form: A Crime
Obscenity when considered as an offence it is not defined in any acts in India, however certain laws state that ‘obscenity’ in certain situations establishes it as an offence. Indian Penal Code, 1860 and Information Technology Act, 2000 are the two legislations in India which recognizes obscenity as an offence or crime in certain circumstances. However nor the Information Technology Act, 2000 or the Indian penal code has defined the word obscene or obscenity, but as per section 67 of the Information Technology Act, 2000 and section 292 of the Indian Penal Code, 1860 elaborates and explains Obscenity as “anything which is lascivious or appeals to the prurient interest or if its effect is tend to deprave and corrupt persons.”[3][4]
Brief Explanation of Each Word
- Lascivious: It is something which excites lust in a person;
- Appeals to: This word here means something which arouses interest in a person;
- Prurient interest: This word here means which is drawn by lustful thoughts;
- Effect: This word here means to cause or change or any event;
- Tend to deprave and Corrupt: This word here means to draw a person towards becoming immoral or bad morally;
- Persons: This word here means natural persons including men, women, children[5]; it does not include any artificial persons.
Henceforth as per the two laws i.e. Indian Penal Code 1860 and Information Technology Act, 2000 (as amended by Information Technology Act, 2008), anything which is anything which is lascivious or appeals to the prurient interest or if its effect tends to deprave and corrupt persons are said to be obscene.
Cyber Obscenity Under Various Legislation in India
Obscenity is an offense under the Indian Penal Code, 1860. Section 292 of the Indian Penal Code, 1860 thoroughly sets out the conditions in which “obscenity” is an offense. Section 292(1) of the Indian Penal Code, 1860 laid out that any activity i.e.
(a) Deal, enlist, conveyance, open presentation or course, makes, produces or, then again has the ownership of any obscene book, leaflet, paper, drawing, painting, portrayal, or, then again figure or some other obscene protest at all or
(b) Import, send out or pass on any obscene protest for any of the reasons specified aforementioned, or knowing or having motivation to trust that such obscene protest will be sold, let to procure, disseminated or freely showed or in any way out into flow, or
(c) Partaking in or getting benefits from any business throughout which any such obscene articles are, for any of the reasons previously mentioned, made, created, bought, kept, imported, traded, passed on, openly showed or in any way put into flow, or
(d) Promotes or makes known by any methods at all that any individual is drawn in or is prepared to take part in any act or that any such obscene protest can be secured from or, on the other hand through any individual or
(e) Offer or endeavor to do any act, are the offense under section 292 of the Indian Penal Code, 1860.
Obscenity is additionally an offense under the Information Technology Act 2000. Section 67 of the Information Technology Act sets out the law that obscenity is an offense when it is published or transmitted or caused to be published in any electronic form[6].
Published
Published here means any information which is distributed and broadcasted formally by issuing and selling copies of the same for general public.
Transmitted
Transmission here means transfer, pass, communicate, a medium for transmitting, signal etc.
Caused to be Public
Caused to be public here means that to give effect of publishing some information by direct or indirect way. It also includes the publishing the certain information by any internet service provider or website server.
The Indecent Representation of Women (Prohibition) Act 1986[7], disallows obscene portrayal of girls or women. Section 2(C) of the Indecent Representation of Women (Prohibition) Act, 1986 characterizes obscene portrayal of girls or women as “the delineation in any way of the figure of a girl or women, her frame or body or any part thereof so as to have the impact of being disgusting, or slanderous to, or stigmatizing, ladies, or is probably going to debase, degenerate or harm the general population morale quality or ethics.”
This Act denies any production, show, ads, deliver or cause to be created, deal, let to contract, disseminate or circle containing obscene portrayal of girls or women and the distribution or sending by post any books, handouts, slide, film, composing, drawing, painting, photo, portrayal or figure in any shape containing obscene portrayal of a girl or women.
Cyberspace is a virtual space or world. There is no regional breaking point which separates this crime between the nations. Since in this stage in carrying out a same crime at least two nations may include in the meantime. Now and again it would be extremely hard to confirm that which nation’s’ law ought to be applied in a specific case. The Indian court embraced the approach of Common Law. As in Ranjit Udeshi v. Territory of Maharashtra[8] case Supreme Court built up an adjusted adaptation of the Hicklin test as the test for indecency in India. The Supreme Court has watched that the trial of indecency set around Cockburn C.J. in Miller V/S California ought not be disposed of.
In ensuing case, the Supreme Court additionally verbalized on the test for obscenity. In
Chandrakant Kalyandas Kakodkar v. Province of Maharashtra[9], the court held: “What is obscenity has not been characterized either in area 292 of IPC or in whatever other statutes. It just restricts or punishes the mailing, granting, sending out, distributing and offering of the obscene issues. It is the obligation of the Court to consider the obscene issue by taking a general perspective of the whole work furthermore, to decide if the obscene entries are so prone to debase and degenerate those whose minds are interested in impacts of this short.”
In Samaresh Bose v. Amal Mitra[10], the Supreme Court held that the idea of vulgarity would contrast from nation to nation contingent upon the principles of ethics of contemporary society.
Punishment Under Indian Penal Code, 1860, Information Technology Act, 2000 (As Amended by Information Technology Act, 2008) & Indecent Representation of Women (Prohibition) Act, 1986
The Punishment for an offense under section 292 of the Indian Penal Code, 1860 is on first conviction with detainment (straightforward or thorough) for a term which may stretch out to two years, and with fine which may stretch out to two thousand rupees, and in case of a moment or resulting conviction, with detainment (straightforward or thorough) for a term which may stretch out to five years, and furthermore with fine which may stretch out to five thousand rupees.
The Punishment under Information Technology (Amendment) Act, 2008 is given in distinctive stages. As they seem to be:
Punishment for Transmitting or Publishing Obscene Information in Electronic Form
As per Section 67 of Information Technology (Amendment) Act, 2008[11],whoever distributes or transmits or causes to be distributed or transmitted in the electronic form any information or data which contains sexually expressive act or direct might be rebuffed on first conviction with detainment of either portrayal for a term which may reach out to five years and with fine which may stretch out to ten lakh rupees and in case of second or resulting conviction with detainment of either portrayal for a term which may reach out to seven years and furthermore with fine which may stretch out to ten lakh rupees.
Relevant Case
This case is tied in with posting obscene, defamatory and irritating message about a divorced lady in the Yahoo message group. Emails were sent to the divorced lady (Victim) for data by the accused through a false email account opened by him for the sake of harassing the victim. These postings brought about irritating telephone calls to the woman. In light of the woman’s grumbling, the police arrested the accused. Investigation uncovered that he was a known family companion of the victim and was keen on wedding her. She was hitched to someone else, yet that marriage finished in separate and the accused began to call her again by sending such emails. On her hesitance to wed him he began hassling her through web.
Decision
The accused was discovered liable for offences under section 469, 509 Indian Penal code, 1860 and section 67 of Information Technology, Act 2000. He is indicted and condemned for the offense as takes after:
- According to 469 of Indian Penal code, 1860 he needs to undergo detainment for a 2 years and to pay fine of Rs.500/ –
- According to 509 of Indian Penal code, 1860 he is to undergo 1 year Simple detainment and to pay Rs 500/ –
- According to Section 67 of Information Technology, Act 2000, he needs to undergo detainment for 2 years and to pay fine of Rs.4000/ –
All sentences were to run simultaneously.
The accused paid fine sum and he was held up at Central Prison, Chennai. This is viewed as the principal case sentenced under section 67 of Information Technology Act 2000 in India.
Punishment for Transmitting or Publishing of Data or Information Containing Sexually Expressive Act in Electronic Form
As per Section 67 of Information Technology (Amendment) Act, 2008, whoever distributes or transmits or causes to be distributed or transmitted in the electronic frame, any material which contains sexual expressive act or lead, should be rebuffed on first conviction with detainment of either portrayal for a term which may stretch out to five years and with fine which may stretch out to ten lakh rupees. In case of second or ensuing conviction with detainment of either portrayal for a term, that may stretch out to seven years and furthermore with fine, which may stretch out to ten lakh rupees.
Punishment for Transmitting or Publishing of Data or Any Information Depicting Children in Sexually Expressive Act in Electronic Form
As per Section 67 of Information Technology (Amendment) Act, 2008[12], whoever
(a) Transmits or publishes or causes to be transmitted or published material in any electronic media form which portrays children engaged in sexually expressive act or behavior, or
(b) Creates, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes text or digital images or material in any electronic media form portraying children in any obscene or indecent or sexually expressive behavior, or
(c) Induces, Entices, cultivates children to online relationship with one or more children for any sexually expressive act or in a behavior that may offend a reasonable adult on the computer resource, or
(d) Facilitates Child abuse on online platform, or
(e) If any recordings are made on own abuse or that with others relating to sexually expressive act with children.
He shall be punished on first conviction with detainment for a term which may extend to five years along with a fine which may extend to ten lakh rupees. In the event of second or subsequent conviction with imprisonment of a term which may extend to seven years along with fine which may extend to ten lakh rupees.
As per Section 6 of the Indecent Representation of Women (Prohibition) Act 1986, any person who contravenes the provisions of this Act shall be punishable on first conviction with detainment which may extend to two years, along with fine which may extend to two thousand rupees. In case of a second or subsequent conviction with imprisonment for a term of not less than six months which may extend to five years along with a fine not less than ten thousand rupees but which may extend to one lakh rupees.
Relevant Case
Janhit Manch & Others v. The Union of India[13]: A Public Interest Litigation was filed to seek a complete ban on pornographic websites. The NGO had argued that websites displaying sexually expressive content had an adverse influence, leading youth on a delinquent path.
Impact of Cyber Obscenity on the Society and Steps that can be taken to Eradicate the Same
In recent era, Internet has turned into the most venomous and risky adversary of man and society. In spite of the fact that it opens a world brimming with learning and data, its uses are misused pointlessly to do criminal exercises and furthermore those which are illicit in nature and this is the motivation behind why we contrast advances with a coin, that is, similar to a coin innovations likewise have two sides, the head being the favorable part and the tail being the disadvantageous part. Cyber-crimes against individuals incorporates a wide range of offenses. Harassing is extremely normal and effectively done inside a talk room or by means of email. This may incorporate physical and sexual dangers, verbally abusing and obscene talk. The trafficking of sexually expressive data and information incorporates pornography of grown-ups what’s more, kids.
In genuine cases, the Internet is utilized to find people, meet them face to face and carry out genuine crimes, for example, assault or murder once the culprits are in contact with the assault.
The Crimes viz. digital obscenity taints the brain of the general population. It makes more noteworthy symptom on the psyches of the kids and the adolescent era. Furthermore, by the obscene data or information i.e. pictures, recordings, or whatever other thing influence the respect of those individuals whose pictures or recordings or names are used to do this business of obscenity.
There are certain suggestive steps, which can be given on this specific subject. By following these steps this Cyber obscenity crime can be eradicated to some degree. The said steps are briefly pointed out below:
- To confine or to decrease the crime of digital obscenity people in general should know. Through instruction, people in general might know about the hindrances of the production of obscene material through the web.
- There must be the workplaces of the whole sites throughout the nations of everywhere throughout the world.
- There must be a procedure to make an email account in any site. As an application frame must be put together by the disconnected procedure to the workplaces made by those sites. What’s more, with the application shape a photo and the personality must be presented by the candidate.
- Only by this procedure anyone should influence his or her email to account at that point there is less opportunity to transfer any obscene material through those email accounts. Since they can convict easily by those data.
- On the conviction of the guilty party transferring the obscene data or information, the disciplines of detainment insect the fine are not adequate. There must be a discipline to suspend the guilty party to utilize his record or to make another record to a specific timeframe as indicated by the nature of the Crime conferred by him.
Conclusion
Obscenity is to a greater extent a social malice than crime (i.e. unlawful). It is an issue, which can’t be tackled in a day. I would insist that in any case demand my point that “Pornography” as such is not obscene and unlawful, yet “pornography” which is obscene is illicit and corrupt. There is a desperate need to change our standpoint and attempt to comprehend this exceptionally fundamental boundary amongst “pornography” and “obscene”.
We can’t deny the way that digital obscenity is available in our general public and it can’t be overlooked. On the off chance that we attempt or of we expect that it can be expelled in a brief timeframe then we are incorrect. It is not through enactment that we can check or control it. Since this obscenity has done the brains of web clients filthy. Nevertheless, by the institution of strict enactment for the digital world can confine its impact to some degree. One of the conceivable ways might be through expanding and spreading mindfulness among the majority. It is not just the guilty parties who transmit or distribute this data or information, it is mindful to build this crime. The overall populations who never include in such action are likewise in charge of this since they who look through these things on Internet to watch or hear. Furthermore, via looking through these things in web they are supporting fiscally those sites that are transmitting these. Since their pay relies on the quantity of the watchers of that specific destinations. In this way, on the off chance that we need to check this crime we should need to limit our hands to enter these sites and should take a look at ourselves not to give any money related help by implication.
Endnotes
[1] L.R. 3 Q.B. 360 (1868)
[2] L.R. 3 Q.B. 360 (1868)
[3] Section 67 of the Information Technology Act, 2000
[4] Section 292 of the Indian Penal Code, 1860
[5] Children as per these sections means children under the age of 18 years
[6] Section 67 of the Information Technology Act, 2000
[7] Indecent Representation of Women (Prohibition) Act 1986 referred
[8] AIR 1965 SC 881
[9] AIR 1970 SC 1390
[10] (1985) 4 SCC 289
[11] Information Technology (Amendment) Act, 2008 referred
[12] Section 67 of Information Technology (Amendment) Act, 2008
[13] In the High Court of Bombay, PIL NO.155 OF 2009
Reference of the Information Technology Act, 2000, Information Technology (Amendment) Act, 2008, Indian Penal Code 1860 and Indecent Representation of Women (Prohibition) Act 1986 has been taken for preparation of the document.
