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THE NUISANCE OF ELECTRONIC OBSCENITY BY PRAVEEN DALAL* The aim of this article is to evaluate the law governing obscenity and pornography in India. The article further aims at furnishing an insight into the application and amalgamation of the provisions of the Information Technology Act, 2000 vis-à-vis obscenity and pornography, created by the use of information technology and its parallels. I. Introduction The art, morals and law's manacles on aesthetics are sensitive subject where jurisprudence meets other social sciences and never goes alone to bark and bite because State-made strait-jacket is an inhibitive prescription for a free country unless enlightened society actively participates in the administration of justice to esthetics. The world's greatest paintings, sculptures, songs and dances, India's lustrous heritage, the Konaraks and Khajurahos, lofty epics, luscious in patches, may be asphyxiated by law, if prudes and prigs and State moralists prescribe paradigms and prescribe heterodoxies[1]. These words were though gifted to us in the year 1980, but they are apposite for the present era as well. The present requirement and efforts are on preserving genuine artistic works and arts on the on hand and to weed out the wild, obscene and pornographic works on the other hand. The situation, however, is not as complacent as it seems to be when it comes to commission of offences involving information technology and its parallels[2]. Honeymooning couples in cheap hotels, lovers in parks, unsuspected young women bathing in the privacy of their bathrooms are shot either through hidden video cameras or by youngsters through their camera mobiles. There is hardly any cost involved in it, but each can fetch anything between Rs 50 to 500[3]. There is an emergent requirement on the part of the government and the law enforcement machinery to check and eliminate this menace of pornography facilitated by the use of information technology or its parallels. To meet this objective we can safely rely upon the provisions of the traditional Indian Penal Code, 1860 and the Information Technology Act, 2000. A close look at these sources of protection would reveal that the protection against corruption of mind and character has its origin from a long time back and it has taken new dimensions keeping in mind the requirements of the modern technological world[4]. The Constitution of India provides protection to individuals, who are victims of this menace, in the form of Article 21 by protecting their privacy rights. The law of privacy is the recognition of the individual’s right to be let alone and to have his personal space inviolate. The term ‘privacy’ denotes the rightful claim of the individual to determine the extent to which he wishes to share of himself with others and his control over the time, place and circumstances to communicate with others. It means his right to withdraw or to participate as he thinks fit. It also means the individual’s right to control dissemination of information about himself as it is his own personal possession. The right to privacy as an independent and distinctive concept originated in the field of Tort law, under which a new cause of action for damages resulting from unlawful invasion of privacy was recognised. In recent times, however, this right has acquired a constitutional status[5], the violation of which attracts both civil as well as criminal consequences under the respective laws[6]. The intensity and complexity of life have rendered necessary some retreat from the world. Man under the refining influence of culture, has become sensitive to publicity, so that solitude and privacy have become essential to the individual. Modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury[7]. II. Works in conflict with law The artistic merit or their social value of a work may overshadow their offending character. A work of art is not necessarily obscene if it is dealing with sex or even with nudity and a work of art or a book of literary merit should not be destroyed if the interest of society requires that it be preserved. It should be viewed as a whole, and its artistic or literary merits should be weighed against the so-called obscenity, the context in which the obscenity occurs and the purpose it seeks to serve. If on a fair consideration’ of these opposite aspects the interest of society is not adversely affected then the work of art or the book must be preserved, for then the obscenity is overborne. If the work in question has no social value and its culpable part is socially, legally and morally undesirable, then the same will be dealt with stringent penal provisions. If a work is devoid of any artistic value and is obscene or pornographic in nature, the law will tackle it profoundly. To take care of the menace of obscenity and pornography, we have two major laws. These are:
These statutes are adequate to take care of the problems associated with obscenity and pornography. They aptly cover the real space and cyber space obscenity and pornographic offences and contraventions. (1) The traditional I.P.C The traditional law dealing with obscenity is contained in section 292 of I.P.C. Section 293 of the Code provides for enhanced sentence where the obscene objects are sold, etc, to persons under the age of twenty years. By Act XXXVI of 1969 the punishment for the offence is further enhanced. The judiciary in India has always considered obscenity a serious threat to the society at large and took it very seriously. At the same time it encouraged genuine works having artistic value where the objectionable contents of those works were considerably overshadowed by their intrinsic value to the society at large. In Ranjit .D. Udeshi v State of Maharashtra[8] the appellant, a bookseller, sold a copy of the unexpurgated edition of "Lady Chatterley's Lover". He was convicted under section 292, Indian Penal Code. On an appeal the Supreme Court observed: “The section embodies a reasonable restriction upon the freedom of speech and expression guaranteed by Art.19 and does not fall outside the limits of restriction permitted by cl. (2) of the Article. The section seeks no more than the promotion of public decency and morality, which are the words of that clause. The book must be declared obscene within the meaning of section 292, Indian Penal Code. The word "obscene” in the section is not limited to writings, pictures etc. intended to arouse sexual desire. At the same time the mere treating with sex and nudity in art and literature is not per se evidence of obscenity. Though the work as a whole must be considered, the obscene matter must be considered by itself and separately to find out whether it is so gross and its obscenity so decided that it is likely to deprave and corrupt those whose minds are open to influences of this sort. In this connection the interests of contemporary society and particularly the influence of the impugned book on it must not be overlooked. The section does not make the bookseller's knowledge of obscenity an ingredient of the offence and the prosecution need not establish it. Absence of knowledge may be taken in mitigation but does not take the case out of the section. But the prosecution must prove the ordinary mens rea in the second part of the guilty act and it must be proved that he had actually sold or kept for sale the offending article. Such mens rea may be established by circumstantial evidence”. This shows that the element of “guilty intention” is fulfilled the moment the offending act of obscenity or pornography is committed. In Pawan kumar v State of Haryana[9] the Supreme Court observed: “In order to secure a conviction the provision (Section 294, I.P.C) requires two particulars to be proved by the prosecution, i.e. (i) the offender has done any obscene act in any public place or has sung, recited or uttered any obscene songs or words in or near any public place; and (ii) has so caused annoyance to others. If the act complained of is not obscene, or is not done in any public place, or the song recited or uttered is not obscene, or is not sung, recited or uttered in or near any public place, or that it causes no annoyance to others, the offence is not committed”[10]. These decisions of the Supreme Court have direct relevance under the Information Technology Act, particularly regarding the liability of the web site owners and the “Internet service providers” (ISPs). For instance, the former case may make the web site owners and ISPs liable for any “offensive material” posted on their web site even if they have not posted it on the site. This may happen when the web site owner/ISP has been made aware about the contents of the same and he fails to remove the offensive material. Similarly, the second case equally make them liable because a web site or/and a server owned and controlled by an ISP are undoubtedly “public places” where the public has virtually unlimited access. Thus, if despite bringing to the notice of a web site owner or/and ISP he/they negligently fail to remove the offensive material, they will be held liable for the same. It must be noted that an offence may be committed not only by active commission of the same but equally by a “wrongful, illegal and negligent omission” to prevent its further perpetuation. (2) Information Technology Act, 2000 The Internet is a paradox. It is everywhere, yet, at the same time, it is nowhere. It is “a worldwide entity whose nature cannot be easily or simply defined. Because the Internet “is a cooperative venture not owned by a single entity or government, there are no centralized rules or laws governing its use. In the Indian context, section 1(2) r/w section 75 of the Information Technology Act, 2000 (ITA) empowers the courts with a “long arm jurisdiction” which is absolutely necessary for meeting the challenges posed by the information technology. It must be noted that by virtue of sections 1(2), 75 and 81 the Act applies to offences or contraventions committed outside India as well. The Act applies to an offence or contravention committed outside India by any person if the act or conduct constituting the offence or contravention involves a computer, computer system or computer network located in India. The power becomes more aggressive with the support of the overriding provisions of section 81 of the Act. Thus, jurisdictions available under other laws will give way to the provisions of the Act in case of conflict and inconsistency. In case where there is no conflict or inconsistency between various jurisdictional powers there is nothing that restricts the courts from combining them together to meet the ends of justice. Thus, the provisions of section 1(2), 75 and 81 of the Act read with sections 292/294 of I.P.C can provide a viable solution to the jurisdiction problems arising in cases of obscenity and pornography within the meaning of section 67 of the Act. As mentioned earlier, an ISP[11] shall be liable for violation of privacy of a third party if he makes available any third party information or data to a person for the commission of an offence or contravention. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing and education among other matters. None can publish anything concerning the above matters without his consent, whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages[12]. However, a network service provider will not be liable if he proves that the offence or contravention was committed without his knowledge or he had exercised all due diligence to prevent such commission[13]. Thus, the mandates of “constructive knowledge” and “due diligence” require the web site owner and an ISP to take immediate action by removing the offensive material from the source, as soon as he/it becomes aware of the same. If he/it fails to do so, he/it can be booked under the provisions of IPC and ITA. The “designated authority” can also block the contents on the web site or server. It must be noted that the Indian Computer Emergency Response Team (CERT-In) has been designated as the single authority for issuing of instructions in the context of blocking of web sites[14]. CERT-In has to instruct the Department of Telecommunications to block the web sites after verifying the authenticity of the complaint and satisfying that action of blocking of website is absolutely essential. There is no explicit provision in the IT Act, 2000 for blocking of websites. In fact, blocking is considered to be censorship; hence it can be challenged if it restricts the freedom of speech and expression. But websites promoting hate, contempt, slander or defamation of others, promoting gambling, promoting racism, violence and terrorism, pornography and violent sex can reasonably be blocked since all such websites cannot claim the Fundamental Right of free speech and expression. The blocking of such website may be equated to “balanced flow of information” and not censorship[15]. The business of running and maintaining a web site or server has its own legal challenges, which may have serious penal ramifications. Thus, web site owners and ISP should be well versed with the consequences of posting offensive material on their sites/servers. The definition of “intermediary” u/s 2(1) (w) makes any person who receives, stores or transmit a message or provide any service with respect to that message liable for punishment if the same is obscene or/and pornographic in nature[16]. They must be very cautious while dealing with materials containing obscene and pornographic contents; otherwise they may find themselves in the clutches of law. III. Conclusion The law regulates the social interests, arbitrates conflicting claims and demands security of persons and property of the people and is an essential function of the state. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of the law, which must be achieved by imposing appropriate sentence. Therefore, law as a corner stone of the edifice of “order” should meet the challenges confronting the society[17]. The Legislature, Executive and the Judiciary have taken “violence against women” in any of its form very seriously and the Supreme Court has upheld the tough stand taken by the government in various cases in this regard[18]. This trend will be followed in future as well, though with more stringent provisions and greater punitive tamper. This situation endorses the aphorism that “ knowledge is power” and “prevention is better than cure”. They must be aware of the laws preventing obscenity and pornography and should take all precautionary steps to avoid any criminal liability. The web site/server owners must either take clue from these maxims or they may face the “music of criminal law”. © Praveen Dalal. All rights reserved with the author. * Consultant and Advocate, Delhi High Court Contact at: pd37@rediffmail.com/ perry4law@yahoo.com [1] Krishna Iyer, J in Raj Kapoor v State, AIR 1980 SC 258. [2] The author believes that mobile phones and devices of similar nature can conveniently be included within the legal scrutiny ambits of the Information Technology Act, 2000 by virtue of Sections 2(1) (i) and 2(1) (l). [3] Bonita Baruah: “ Sex, lives and videotapes”, Sunday Times of India (Delhi edition), page 6, Dated 05-12-04. [4] Praveen Dalal; “Confronting obscenity and pornography seriously” (Under publication). [5] Rajagopal Vs State of TN [(1994) 6 SCC 632]. [6] Praveen Dalal and Shruti Gupta; “ The unexplored dimensions of right to privacy”, IJCL, V-III No 2, P 45 (May 2004). [7] Samuel D. Warren and Louis D. Brandies, “The Right to Privacy”, 4 Harv. L. Rev.5, (1890). [8] AIR 1965 SC 881. [9] 1996 (4) SCALE 480. [10] Praveen Dalal; “Confronting obscenity and pornography seriously” (Under publication). [11] These provisions can be made applicable, with necessary modifications, to web site owners as well. [12] Rajagopal Vs State of TN, (1994) 6 SCC 632. [13] Sec.79 of IT Act, 2000 [14] Gazette Notification (Extraordinary) No.G.S.R.181 (E), Dated: 09-07-2003, pp 4-7, No 309. [15] Praveen Dalal; “ The limits of electronic surveillance powers of the State”, (Under publication). [16] Section 67 read with section2 (1)(w). [17] State of M.P v G.Singh, AIR 2003 SC 3191. [18] Sanabona v Govt of A.P, AIR 2003 SC 3074.
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