Identity politics

This article has been written by Surabhi Singh pursuing a Diploma in Corporate Litigation course from LawSikho. 

This article has been edited and published by Shashwat Kaushik.

Introduction

Today, social media has given rise to the age of influencers, where everyone can be an influencer. Simultaneously, on social media platforms, the portrayal of women often lacks decency under the pretext of authenticity and other justifications. Numerous inquiries arise regarding the definition of indecent representation, its boundaries, and whether such behaviour extends to social media posts as part of the broader discourse. These are fundamental considerations in understanding acts of indecent portrayal of women. With the advent of AI and social media, the proliferation of fake avatars has become a disturbing trend, wherein fabricated images of women are created for the explicit purpose of indecent representation and subsequent online trolling.  

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Key provisions of the IRWA

Section 3[1]: Prohibition of indecent advertisements

The Indecent Representation of Women (Prohibition) Act (IRWA) Section 3 plays a crucial role in safeguarding the dignity and respect of women in advertising. This section is designed to prevent the portrayal of women in a manner that is demeaning, objectifying, or exploitative. The law aims to create an environment where women are represented accurately and appropriately in all forms of advertising.

One of the key provisions of Section 3 is the prohibition against creating, sharing, or being involved in any advertisement that describes women in an obscene or offensive manner. This includes advertisements that depict women in a sexually suggestive or provocative way, as well as those that perpetuate harmful stereotypes or objectify women. By establishing these restrictions, the law aims to challenge and dismantle the objectification of women in advertising and promote a more inclusive and respectful portrayal.

Furthermore, Section 3 emphasises the importance of ensuring that women are represented in a diverse and authentic manner. Advertisements should reflect the full range of women’s experiences, backgrounds, and identities. This means avoiding portrayals that reinforce harmful stereotypes or limit women to narrow and unrealistic roles. Instead, advertisements should strive to present women as multifaceted individuals with diverse interests, abilities, and aspirations.

To enforce these provisions, Section 3 stipulates that publishing, causing, arranging, or taking part in the publication or exhibition of any advertisement that contains any indecent representation of women in any form by any person shall be punishable. This serves as a deterrent against violations of the law and underscores the seriousness with which such offences are treated.

The Indecent Representation of Women (Prohibition) Act (IRWA) Section 3 is a crucial piece of legislation that contributes to the broader effort to combat gender inequality and promote gender equality. By protecting the dignity and respect of women in advertising, this law helps to create a more equitable and inclusive society where women are valued and respected.

Section 4: Prohibition of Indecent Publications

Section 4 of the Indecent Representation of Women (Prohibition) Act (IRWA) deals with the prohibition of publication or sending by post of books, pamphlets, papers, slides, films, writings, drawings, paintings, and photographs that contain indecent representation of women in any form. However, there are exceptions when the publication is done in the interest of science, literature, art, learning, or other objects of general concern and is kept or used bona fide for religious purposes. This includes:

  1. Any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act, 1958.
  2. Any temple, or kept or used for any religious purpose.
  3. Any film in respect of which the provisions of Part II of the Cinematograph Act, 1952, apply.

Section 6: Penalty

For contravention of Section 3 and Section 4, the first-time offence has two years imprisonment and a fine of Rs. 2000. Second-time minimum punishment shall be six months imprisonment and 10.000 rupees in fine, and a maximum of five years imprisonment and one lakh rupees in fine.

Relevant Indian Penal Code provisions

Section 292 IPC: Comparable provisions

In the provisions of the Indian Penal Code relating to women for safety regarding the indecent representation of women, but not specific sections. Section 292 of the IPC addresses the same issue as Section 4 of the IRWA. Indian Penal Code, Section 292 prohibits the sale, distribution, and circulation of obscene materials, which are defined as items that are sexually explicit or likely to corrupt viewers. Offenders can face imprisonment and fines, with harsher penalties for repeat offences. However, exceptions are made for materials used for public good, such as in science, art, or religion.

Limitations in addressing modern digital content

In IRWA, there is nothing about electronic forms of publications, social media, MMS, SMS, reels, shorts, etc. posting, or advertisements. The Information Technology Act, Section 67, punishes those who publish or transmit obscene material online. Sharing such content electronically is illegal. None of these define the indecent representation of women on social media and their punishment.

There must be amendments to the act to include electronic forms, social media advertisements and distribution across the world. The Information Technology Act and the Indian Penal Code should be amended to address social media and AI in IRWA.

Case laws and judicial interpretation

Hicklin Test: Regina v. Hicklin

We try to understand, with some case laws, indecent representation of a woman depicted in a way that depicts women, her form, body, or any part that is indecent, derogatory, and denigrating to women or deprave, corrupt, and injure public morality. For public morality, there was a Queen’s Bench in Regina v. Hicklin that laid down the Hicklin Test. This test examines whether the impugned matter tends to “deprave and corrupt those whose minds are open to such immoral influence, and into whose hands a publication of this sort may form a head.” The phrase means that certain content might lead people who are easily influenced by immoral material to have morally harmful thoughts or behaviours. It also suggests that anyone who encounters such content could be affected by it, potentially influencing their thoughts or actions. In simpler terms, it’s saying that certain material could make some people think or act immorally, and it could impact anyone who comes across it.

Ranjith D. Udeshi v. State of Maharashtra: Application of Hicklin Test

In the landmark case of Ranjith D. Udeshi v. State of Maharashtra (1965), the constitutionality of Section 292 of the Indian Penal Code (IPC), which addresses obscenity, faced a legal challenge. The judges presiding over the case recognized that the definition of obscenity is not static but rather evolves with the passage of time. What society deems obscene at one point may not necessarily be viewed as such in the future.

In this particular case, the court employed the Hicklin Test, a legal standard used to assess the obscenity of a work, to evaluate D.H. Lawrence’s controversial novel “Lady Chatterley’s Lover.” The Hicklin Test focuses on whether the material in question has the potential to corrupt or deprave individuals who are susceptible to immoral influences. After careful consideration, the court determined that “Lady Chatterley’s Lover” met the criteria of obscenity as defined by the Hicklin Test.

The court’s decision in Ranjith D. Udeshi v. State of Maharashtra sparked a significant debate surrounding the definition and regulation of obscenity in India. Critics argued that the Hicklin Test was too subjective and could lead to the censorship of works of artistic merit. They contended that obscenity should not be solely based on the potential for corrupting vulnerable individuals but should also consider factors such as the work’s literary or artistic value and its contribution to public discourse.

Furthermore, the application of the Hicklin Test in this case raised concerns about the freedom of expression guaranteed by Article 19(1)(a) of the Indian Constitution. Some legal scholars argued that the broad interpretation of obscenity under the Hicklin Test could stifle creative expression and impede the dissemination of important ideas and perspectives.

The Ranjith D. Udeshi case played a pivotal role in shaping India’s legal landscape regarding obscenity. It highlighted the need for a more nuanced and contextual approach to determining what constitutes obscene material. Subsequent court decisions and legislative amendments have sought to balance the interests of protecting public morals with safeguarding the fundamental right to freedom of expression.

Aveek Sarkar v. State of West Bengal: Adoption of Community Standards Test

In the case of Aveek Sarkar v. State of West Bengal (2014), the Supreme Court acquitted the appellant of charges under Section 292 of the IPC and Section 4 of the Indecent Representation of Women Act. The court emphasised that the context in which a photograph appears and the message it conveys are crucial in determining obscenity. It discarded the Hicklin test and adopted the community standard test, which assesses whether the dominant theme of the material violates contemporary community standards. Exceptions to publication exist for content serving the public good or interest, such as scientific, artistic, literary, and historical works, and films governed by Part II of the Cinematograph Act 1952. These tests apply in the social media age, necessitating consideration of community standards for content posted online. Any publication, arrangement, or involvement in the dissemination of indecent representations of women is prohibited, with penalties imposed for producing, circulating, or selling indecent material.

Amendments and updates to the Act

The Indecent Representation of Women (Prohibition) Amendment Bill, 2012, was introduced in the Rajya Sabha on December 13, 2012, by Smt. Krishna Tirath, the then Minister of State (Independent) for Women and Child Development. This bill aimed to expand the scope of the existing Indecent Representation of Women (Prohibition) Act, 1986, to include new forms of communication that had emerged since the enactment of the original act.

The 1986 Act primarily focused on prohibiting indecent representation of women through traditional print media such as advertisements, publications, writings, and paintings. However, with the rapid advancement of technology and the proliferation of new communication platforms, the need arose to address the portrayal of women in these emerging media.

The Amendment Bill sought to broaden the definition of “indecent representation of women” to encompass content disseminated through the Internet, satellite-based communication, cable television, and other electronic media. This expansion was crucial to tackle the increasing instances of online harassment, cyberbullying, and the spread of misogynistic and objectifying content targeting women.

The bill also recognised the importance of protecting artistic expression, scientific research, and religious practices. It included exceptions for material published in the interest of science, literature, or art, for bona fide religious purposes, and for sculptures in ancient monuments or temples. This exemption ensured that legitimate creative works and cultural heritage would not be stifled under the law.

The Amendment Bill underlined the government’s commitment to safeguarding women’s dignity and ensuring their portrayal in the media is respectful and free from objectification and exploitation. It aimed to create a comprehensive legal framework that kept pace with technological advancements and addressed the evolving challenges faced by women in the digital age.

While the bill was introduced in 2012, it did not progress beyond the introduction stage in the Rajya Sabha. However, the discussions and debates surrounding the bill highlighted the urgent need to address the issue of indecent representation of women in the media and the importance of adapting laws to address emerging forms of communication.

The Bill introduces fresh explanations for “indecent representation of women,” “electronic form,” and “publish.” “Indecent representation of women” refers to portraying a woman’s figure or form in a manner deemed indecent, derogatory, or potentially corrupting public morality. “Electronic form” encompasses information created, transmitted, or stored in media, magnetic, or optical forms, as outlined in the Information Technology Act, 2000. “Publish” includes activities such as printing, distributing, or broadcasting through audio-visual media. But withdrawn in Rajya Sabha, July 26, 2021.

Need for legislative updates

The Indecent Representation of Women (Prohibition) Act, 1986 (IRWA), while a landmark in addressing the portrayal of women in traditional media, falls short of effectively tackling the challenges posed by the digital age. With the advent of social media and advancements in AI, there is an urgent need for legislative amendments to encompass contemporary modes of communication and expression. The existing provisions under Sections 3 and 4 of IRWA, alongside relevant sections of the Indian Penal Code (IPC) and the Information Technology Act, 2000, provide a framework for combating indecent representation. However, they do not explicitly cover the rapidly evolving digital landscape, including social media platforms, AI-generated content, and other electronic forms of communication.

Ensuring legal protections evolve with technological advancements

Significant case law, such as Ranjith D. Udeshi v. State of Maharashtra and Aveek Sarkar v. State of West Bengal, highlights the judiciary’s evolving stance on obscenity and indecent representation. The transition from the Hicklin Test to the community standards test reflects a progressive approach, yet the application of these tests to digital content remains underdeveloped.

The introduction of the Indecent Representation of Women (Prohibition) Amendment Bill, 2012, was a step in the right direction, aiming to address these gaps by incorporating definitions of “electronic form” and expanding the scope of “publish.”

However, its withdrawal in 2021 indicates a missed opportunity to modernise the legal framework. It is imperative for lawmakers to revisit and amend the IRWA, along with the relevant sections of the IPC and the IT Act, to explicitly include and address the challenges posed by social media and AI-generated content. Such amendments should aim to provide clear definitions and robust mechanisms to safeguard the dignity of women in the digital era, ensuring that legal protections evolve in tandem with technological advancements. This approach will better equip the legal system to uphold public morality and protect individuals from indecent representation across all forms of media.

References

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