The whole world in Cyber space is a place under one roof. The ideas, thoughts,
expressions, views, culture, tradition & customs flow from one corner to the
other corner of the globe at the click of a mouse. With the outflow from one
corner to other of these culture, traditions, customs, expressions, views,
thoughts and ideas the inevitable hardship i.e. the adaptability and amenability
and intermingling of one culture with the other was realised . The clash between
the spiritual east and materialistic west. Pornography is one such area of major
conflict. It has been from the very inception hotly debated. This issue was even
more hotly debated when the first reported case of cyber-crime under section 67,
in which a minor i.e. class XI student of Bal Bharti School, Delhi was booked .
I very strongly feel that 'Pornography' is not the core issue of the area of
conflict. But the area of conflict, the issue is quite different. The issue is
in my opinion "Pornography as an offence", the lack of proper yardstick to
weigh the intensity and severity of Pornography as an offence. The difference of
yardsticks in the east compared to the west. For what is considered obscene,
vulgar or nudity in India might be considered well within the four squares of
public decency in the United States.
PORNOGRAPHY & OBSCENITY :
At this juncture it is essential that the term
Pornography & Obscenity may be understood in their widest possible amplitude. The
Indian laws no where deal with the term Pornography. Neither any legislation in
United States nor United Kingdom has tried to give legal connotation to this
term. Further it would be also impossible to find any definition of this term in
the multi-national environment of the internet. The reason being simple that
where there exists no uniform standard of moral culture and ethics there cannot
exist any fixed and uniform standard of law.
The literal meaning of the term 'Pornography' is "describing or showing sexual
acts in order to cause sexual excitement through books, films, etc. "
Thus, in the light of the above definition I strongly feel that the
crux of the matter, the acid test is not 'Pornography' but 'Obscenity', This is
a sad state of affair that majority of us bear/carry a misconception that
pornography should be regulated, but on the contrary I feel that what is obscene
or detrimental to public decency should be checked not pornography in toto.
In this endeavor to explain pornography I would like to quote Asian Cyber School
journal on this topic. "Discussions about pornography regulation often assign
meaning to pornography on three different levels. One level is the legal
definition employed, the criteria used to recognize what is covered by the term
"pornography". The rationales behind the choice of legal definition are usually
seen as closely tied to the second level of meaning - the message of
pornography: what the material says about the world and how the material is
perceived by those who consume it. Finally, there is the meaning of pornography
that relates to the effects upon those viewing or reading the material. These
effects are often seen as being congruent with the message of the material that
has been defined as pornography."
The above definition leaves no space for any doubt that pornography itself does
not constitute offence/crime but pornography which is obscene, immoral, against
public policy and detrimental to public welfare is an offence / crime under any
Indian legislation. With due regard to the above quoted definition I would like
to disagree on the point of 'pornographic regulation'. I feel that the term
'pornography' should be replaced by the word 'obscene'.
Now at this point the term obscene must be understood. The literal meaning of
the term obscene is "words, thoughts, books, pictures, etc. indecent, esp.
sexually; disgusting and offensive, likely to corrupt.
Further the Supreme
Court has stated that obscene means "offensive to modesty or decency,
livid, filthy, repulsive".
As to the test of what matter is obscene it has been categorically laid down by
Cockwin C.J. in Hicklin's case: "The test of obscenity is this, whether the
tendency of the matter charged as obscene is to deprave corrupt those whose mind
are open to such immoral influences, and into whose hands a publication of this
sort may fall"
Thus in the light of above laid down test it may be easily
concluded that every obscene material is pornography but every pornographic
material is not obscene
OBSCENITY & THE STATUTORY PROVISIONS
The intention of the legislature is to restrain obscenity not pornography. As I
have stated above and also I would like to contend pornography, which is
obscene, indecent and detrimental to public morality should only be
restrained/restricted. This very intention of the legislature not to bring
pornography within the ambit of crime/ offence is very much reflected from the
various statues categorically dealing with 'sexual-offences'.
i. Indecent Representation of Women (Prohibition) Act
The title of this Act makes it very clear that the intention of the legislature
is to prohibit "indecent representation". Pornography, which amounts to
"indecent representation", is an offence. Now the point to be determined is as
to what may amount to indecent representation. Section 2(C) of the Indecent
Representation of Women (Prohibition) Act defines indecent representation of
women as "the depiction in any manner of the figure of a woman, her form or body
or any part thereof in such a way as to have the effect of being indecent, or
derogatory to, or denigrating, women, or is likely to deprave, corrupt or injure
the public morality or morals."
This again makes the situation very clear that the legislature intends to
criminalize only pornography that is obscene rather than pornography in toto.
Penal Provision:
This Act provides for a punishment upto 5 years for publishing and distributing
any photograph containing indecent representation of women in any form.
ii. Indian Penal Code, 1860
The Indian Penal Code vide section 292 defines the term obscene and provides for
punishment for distributing any such object. Section 292 (1) defines obscene as
follows:
" a book, pamphlet, paper, writing, drawing, painting, representation,
figure or any other object, shall be deemed to be obscene if it is lascivious or
appeals to the prurient interest or if its effect, or (where it comprises two or
more distinct items) the effect of any one of its items, is, if taken as a
whole, 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." Further subsection (2) provides for the penal consequence in
the following manner."
shall be punished on first conviction with imprisonment
of either description for a term which may extend to two thousand 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 five thousand rupees."
Ordinarily the obscene material on the net would not fall under the ambit of
section 292. But when section 292 is read with section 29 'A' of this Act, it
can be easily deduced that a computer screen can be constructed to be a document
within the meaning of Section 29. It follows that if any pornographic material,
which is obscene, if visible on the computer screen, then an offence under
section 292 of the I.P.C., is committed.
iii. The Information Technology Act, 2000
The dusk of the 20th century witnessed the emergence most high-tech medium,
which completely metamorphosised the conception of Information Technology. With
the growth of the I.T. it was strongly felt by the world community to bring in
some legislation to regulate this high tech. medium. Based on the UNCTRAL model
India enacted the Information Technology Act, 2000.
Section 67 of the I.T. Act is the most serious legislative measure against
pornography. This section reads as follows "Whosoever publishes or transmits or
causes to be published in the electronic form, any material which is lascivious
or appeals to be published in the electronic form, any material which is
lascivious or appeals to the prurient interest or it 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 an imprisonment of either
description for a term which may extend to five years and with fine which may
extend to one lakh rupees and in the event of a second or subsequent conviction
with imprisonment of either description for a term which may extend to ten years
and also with fine which may extend to two lakh rupees."
The important ingredients of an offence under section 67 are:
1. Publishing, or
2. Transmitting, or
3. Causing to be published
Obscene material in the electronic form.
Transmit - The Oxford dictionary defines transmit as "pass on, hand on,
transfer, communicate, allow to pass through, be a medium for, serve to
communicate (signal etc.)"
This definition adequately covers the role of Internet service providers. An ISP
provides the "medium" through which the material of a web-site "passes through
from the server to the viewer.
Publishing: The Oxford dictionary defines publish as "make generally known;
announce formally promulgate, issue copies for sale to public. "
Applying this definition, it is apparent that if a web-site is disseminating
obscene material, then the domain name owner, the technical and administrative
contacts of the domain name and the creator of the pornographic material that is
being disseminated will be liable under section 67.
Causing to be published: -
Cause means to produce an effect. To cause to be published means to produce the
effect of publishing. It is apparent that the term 'cause to be published' would
cover the job performed by the Web server. A web server causes material to be
published over the Internet.
It appears that the wordings of section 67 are wide enough to cover all
perpetrators of 'Cyber- obscenity", be it the Internet service providers, web
hosting entities or the persons behind the actual web site.
Applicability of Sec. 67 and Sec. 292 to Service Providers and Search Engines :-
The Indian Penal Code vide section 292 and the Information Technology Act vide
section 67 endeavors to regulate / restrict obscenity on cyber space by
providing penal consequence for publishing, transmitting or causing to be
published.
Before I proceed further there is a strong need in my opinion to bifurcate, for
the sake of argument, both the schools of thought. The former school of thought
which believes in pro applicability and the latter school of thought which
refutes the pro-applicability theory but favoring anti-applicability theory. The
areas of conflict as to which may arise here are: -
i. Applicability of section 292 of I.P.C. to search engines and service
providers.
ii. Applicability of section 67 of the I.T. Act to search engines and service
providers.
i. Section 292 of I.P.C. With the enactment of the Information Technology Act
and the amendments brought to S. 292 of I.P.C. by inserting sec. 29 'A' to the
Penal Code, is now applicable even to obscenity in the electronic media.
The former school of pro-applicability theory may remark that section 292 of the
Indian Penal Code is applicable to both service providers and search engines.
The very theory may be enhanced in the light of the intention of the legislature
which is very much evident from the insertion of section 29 'A' to the Penal
Code. Thereby enlarging the definition of document and bringing within its ambit
even electronic document. Once documents include within its purview electronic
documents, hence section 292 can be invoked.
The latter school supporting the anti-applicability theory would at once rebut
the above placed argument solely on the ground that the information Technology
Act being special Act would prevail over the provisions of the Indian Penal
Code. At this juncture one might show his inability to accept this argument. The
obvious reason being the more harsh penal provisions of the information
Technology Act in matters of obscenity. Perhaps it provides for the most severe
penal consequences in cases of obscenity.
Here I would like to mention that once a service provider and search engines
evades the penal provision of the Penal Code, the intermediary Clause might
prove a good defense to avoid any penal consequences.
ii. Section 67 of the I.T. Act
I have mentioned above, the most severe and harsh penal consequence regarding
obscenity on e-media till date. This section provides for "on the first
conviction with imprisonment of either description for a term which may extend
to five years and with fine which may extend to one lakh rupees, and in the
event of a second or subsequent conviction with imprisonment of either
description for a term which may extend to ten years and also with fine which
may extend to two lakh rupees."
The crux of this whole affair, whether "service-providers" and "search-engines"
falls within the ambit of section 67 of the Information Technology Act, 2000.
I feel that the acid test regarding applicability of section 67 is section 79.
Which categorically lays down exception/cases where network service providers
are not be held liable. Before proceeding to the exception we must see as to who
comes under the purview of service provider- Explanatory clause to section 79
states that "network service provider" is an intermediary.
Section 2(W) of this Act defines an intermediary. It states that an intermediary
with respect to any particular electronic message means any person who on behalf
of another person receives stores or transmits that message or provides any
'service' with respect to that message.
Here for the purpose of the Act the word service in my opinion, should be
construed in the same sense as defined in the Consumer Protection Act, 1986.
Hence it will include both service provider, Cyber-Cafes, and search engines
within the 'intermediary' clause.
Though this immunity is granted to the 'intermediary' is not absolute, but
collateral to the fulfillment of certain requirements -
1. Knowledge
2. Intention
The first important ingredient is knowledge. The commission of the act should be
beyond the knowledge or perception of the 'intermediary' and inevitable. Further
the 'intermediary' should prove balance of conveyance in his favour. He should
show that he has taken due diligence. He should act in a prudent way to prevent
the commission of the offence.
CONCLUSION:
Obscenity is more of a social evil that crime (i.e. illegal). It is not through
legislation that we can check or curb it. The only possible way out is by
increasing and spreading awareness among the masses. Further I would still
insist on my point that 'Pornography' per se is not obscene and illegal, but
'pornography' which is obscene is illegal and immoral. There is a dire need to
change our outlook & try to understand this very basic demarcation between
'pornography' and 'obscene'. I feel that this is what the root problem is and it
is here only where the solution to this problem lies.
P.A.S.Pati
Contact Address:
Parthasarathi Pati
7 C, Ashok Nagar, Road No 1, Ranchi,
Jharkhand
885/4/1 Bandarkar Road, Deccan
Gymkhana, Pune 4
E-Mail