In a case involving an MMS showing two schoolchildren engaged in an intimate act being uploaded on to a website, Justice Muralidhar of the Delhi High Court pointed out that ‘since the IPC does not recognise the concept of an automatic criminal liability attaching to the Director where the company is an accused not even a prima facie case for offence under sections 292 and 294 is made out [against Mr Bajaj, the MD of the company at the time].’

Justice S Muralidhar went on to drop charges under the Indian Penal Code against Avinash Bajaj, the former Manging Director of Bazee.com (now Ebay India Pvt. Ltd.). Mr Bajaj had been charged with offences under IPC as well as with offences under the Information and Technology Act.

Pornography is easily available in India (just as it is in the rest of the world). In fact, any discussion about the availability of pornography is ludicrous in the Age of Online Porn. And, whether or not one wants to admit it, it is closely linked to prostitution and to trafficking: ‘today, the hunt for cheap, easy prey has been made significantly easier because the prowlers know exactly where to click’.

There are provisions in the Penal Code, the Information Technology Act and the Indecent Representation of Women Act to deal with porn and other forms of indecent representation though.

The Indian Penal Code says:

Any book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, is deemed to be obscene under Section 292 of the Indian Penal Code ‘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.

Under Section 292 (2), whoever

1. sells, lets to hire, distributes, publicly exhibits or in any manner, puts into circulation or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever or
2. imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowing or having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation or
3. takes part in or receives profits from any business in the course of which he knows or has reason to believe that any such obscene objects are, for any of the purposes aforesaid, made, produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any manner put into circulation or
4. advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this Section or that any such obscene object can be procured from or through any person or
5. offers or attempts to do any act which is an offence under this Section, shall be punished on first conviction with imprisonment of either description for a term which may extend to two years, and with fine 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.

This Section does not extend to:

• any book, pamphlet, paper, writing, drawing, painting, representation or figure
  1. the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern or
  2. which is kept or used bonafide for religious purposes

• any representation sculptured, engraved, painted or otherwise represented on or in
  1. any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 or
  2. any temple or on any car used for the conveyance of idols or kept or used for any religious purpose.

And under Section 293 which deals with the punishment of an act listed in Section 292, ‘whoever sells, lets to hire, distributes, exhibits or circulates to any person under the age of twenty years any such obscene object as is referred to in the last preceding Section or offers or attempts so to do, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and with fine 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 seven years, and also with fine which may extend to five thousand rupees.’

The Indian Penal Code does not define obscenity itself. In Ranjit D Udeshi v/s State of Maharashtra, 1965,² the Supreme Court, however, accepted the test formulated over a century ago in R v/s Hicklin, the case under which a bookseller was prosecuted for keeping and selling the supposedly obscene Lady Chatterley’s Lover. Despite the furore which the book created when it was first published, by itself, it simply cannot be considered obscene by contemporary standard and as such, the test in R v/s Hicklin, which quite simply fails either to recognise or to make provision for this change in the perception of obscenity, should not have been accepted.

Parliament passed the Indecent Representation of Women (Prohibition) Act in 1986. It extends to the whole of India except the State of Jammu and Kashmir and is meant to ‘prohibit indecent representation of women through advertisements or in publications, writings, paintings, figures’.

‘Indecent representation of women’ means the depiction in any manner of the figure of a woman; her form or body or any part thereof in such way as to have the effect of being indecent or derogatory to or denigrating women or as is likely to deprave, corrupt or injure public morality or morals. ³

Further, there is a provision in the Information Technology Act, 2000 which deals with the publishing of information which is obscene in electronic form.

The Information Technology Act was passed by Parliament in 2000 primarily to provide legal recognition to eCommerce and is based on UNCITRAL’s Model Law for Electronic Commerce which the UN General Assembly adopted on January 30, 1997. Section 67 of the Act says:

Whoever publishes or transmits or causes to be published in electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all the relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on 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 with fine which may extend to two lakh rupees.

Apart from online porn, recently, a large number of men have been morphing photos of women who either dump them or simply reject their advances and posting them on the Net. There doesn’t seem to be very much that can be done about it – once the photos are on the Net, the damage has usually already been done as far as the woman involved is concerned.

Moving away from relationships which have gone sour (assuming they existed in the first place) though, another form of indecent representation which has been much talked about is that which is on TV. Apart from a large number of PILs being filed against various actresses for wearing supposedly indecent clothes in performances, in January 2007, the Government temporarily banned the AXN Channel for showing supposedly indecent content.

While the judiciary has been trying to curtail instances of frivolous public interest litigation being filed by persons suffering from bouts of self-righteousness, the Government has increasingly been making forays into realm of morality although, as Jug Suraiya⁴ pointed out, “A perverse politics of pornography seems to prevail. A State apparatus which cannot grant its citizens the most basic of life enhancing requirements – primary healthcare, education, gainful employment, safety from violence – shows compensatory zeal in protecting its people from the ill-effects of moral pollutants in their most ingenious of Avatars… even as the regular police turns a blind eye, or worse and acts as an accomplice to rape, murder torture and other obscenities of violence.”

In Bobby Art International v/s Om Pal Singh Hoon, 1996,⁵ the Supreme Court did not quash the certificate of exhibition of a film which told the story of a tribal girl – Phoolan Devi – whose being exposed to various forms of brutality shown in the film (including gang-rape) turned her into a dreaded dacoit known as the ‘Bandit Queen’. The Court held that the film had to be judged in its entirety and that nakedness did not always arouse a baser instinct.

References:
1. Malarek, Victor; The Natashas; Arcade Publishing; 2003
2. AIR 1965 SC 881
3. Section 2; Indecent Representation of Women (Prohibition) Act, 1986
4. Suraiya, Jug; Risque and Porn: Can I& B tell the difference?; The Times of India; 21.1.2007
5. (1996) 4 SCC 1
6. Indian Women: A Socio Legal Perspective; Saikia, N