Pornography has emerged as one of the largest and biggest business threat for society nowadays and this is all because of globalization and urbanization. It is true that development of a country is important but not at the cost of youth internet addiction. It can be termed as a termite to the society as it is effecting the youth to the largest extent. It is not only effecting the adult‘s but is very popular among children of all age groups. A child of two years knows how to operate smart phones in today’s time. Students are the most important group in the society because they would be building the future of the society. It is true that internet has made life easy by opening doors for virtual online offices, earning money , entertainment , to gain knowledge , social media applications, jobs, to sell old items, buy goods and services and to send and receive messages through email etc. but at the same time it has resulted in lack of face to face communication , lack of creativity, cyber bullying, waste of time, abandonment of family ,privacy disruption , physical inactivity , internet addiction and moral corruption. The use and accessibility to the internet growing every single second has resulted in the spectators of porn not necessitate any better place than internet to satisfy the desires of their enjoyment.
Extreme porn addiction or dependence has risen because of this sheer and easier accessibility. In India, if we talk about the penal provisions then under Information Technology (Amendment) Act, Section 67, 67A and 67B covers the substances relating to pornography and under Indian Penal code under Section 293, prohibits the Sale of obscene objects to young person. Internet has given birth to Cyber Criminals which operate through different electronic devices in various countries. The problem of jurisdiction arises when they are committed outside India, effecting Indian citizen or Indian property. This is because of disparities between the rules and regulations of different nations as the situation can be that what one nation may consider it as a crime, and the other nation may not consider it as a crime. In pornography, suspects may not host or may host a website on the network located outside India and in countries where pornography is allowed.
Mr. Pavan Duggal , known as the Cyber Law Expert cited in a Newspaper Clipping ―Evolving technology is the reason porn sites are difficult to track down. It acts as a shield against the authorities trying to figure out ways to put ban in India. Moreover, due to globalisation and restrictive internet jurisdiction, combating the issue of pornography is no longer solely under the control of the Government of India.
The debate over the jurisdiction of Indian Courts in combating cyber-crimes, committed by outsider effecting Indian cyber space located in India has been witnessed as an ongoing process. For example , if we consider this situation wherein the website which is offering pornographic materials has set up its server in America, where there is no ban or prohibition on selling of obscene material above legal age, the owner of which resides in France and the customer from India buys some material from the same, which forbids such transmission and distribution of such material. Now, arises the question on the jurisdiction that where the transaction has taken place and who will be liable. The endless outreach or we can say such easy access of Internet use has made it difficult rather we can say impossible to limit the use pornography; it has even get hold of children of very small age that too on a large scale effecting their lives miserably. It becomes very difficult on the part of Indian Police finding itself in a dilemma, on how to arrest the person, located outside India. Child pornography is not prohibited or banned in many countries. My paper will elucidate mainly on the jurisdiction of Indian Courts on matters relating to pornography, effect of pornography on youth, finding out the statutory provisions effecting pornography , role of judiciary and what solution can be initiated to curb such an evil to the society in India.
The hypothesis of my paper is that in cases relating to pornography, the Indian courts have a limited jurisdiction. The solution to the problem of cyber pornography can be by educating them rather than by protecting them.
The word ‘Pornography’ is derived from the Greek words ‘Porne’ means prostitute ‘graphein’ means to write. It further means that the purpose is not mutual love or any kind love at all, but is supremacy and violence against women. It involves the representation of erotic or sensual conduct or behavior in writing or pictures envisioned to cause sexual excitement and pleasure or the depiction of acts in a sensational manner so as to stimulate a speedy intense emotional reaction. Printed or visual material containing the explicit description or display of sexual organs or activity, intended to stimulate sexual excitement. Pornography being an international problem has been in debate as there are various problem in describing or defining the term pornography. Even in the I.T. Act, 2000 of India the term has not been defined. Pornography not only comprises of the female sex workers but also adult male workers and also Children both male and female who are sometimes doing it under pressure or under any economic constraint without their free consent .Therefore, there is no specific category titled as pornography in law. It is also regarded as a more aggravated form of Obscenity. The obscenity laws usually regulate pornography. Consequently, there is no unanimous agreement upon definition of pornography among different eminent scholars. Courts have also set back themselves on attempting to solve the debate on defining pornography.
Cyber pornography refers to exciting sexual, sensual, or other erotic activity over the internet. It can include pornographic websites, magazines produced and using computers in order to publish and print the material and the Internet to download and transmit pornographic pictures, photos, writing, etc. The reason for such high rise in Cyber Pornography is mainly because the technological development has reached to such an extent that life without such communication devices is not possible. This has led to the fast and easy access to these technologies, making it more and more effortless as compared to the traditional form. This has resulted in availability of the pornographic material online. A person can view such content at free of cost in the privacy of his own home.
It is true that it is very difficult to buy this type of content in the printed form, especially by the youth and the children. There is a fear among them when it comes to buy any such pornographic materials or there is also fear of embarrassment of being caught with it. Such hurdles or we can say that such fear is now no more present in them as it is now available in a matter of seconds that too in privacy.
Coming to the legality of Pornography in our country, the laws of our country do not prohibit or ban watching pornography privately i.e., consumption of pornography is no offence. The law forbids its publication, transmission, distribution or production in any form. However, keeping section 377 of IPC, the law can be turned against anybody. Nonetheless, it is advisable to be silent when the law is vague or is having lacunae and can be invoked for anything even remotely controversial. For example watching animal porn might be considered illegal in India. In India, under the Information Technology Act, 2000, Cyber pornography is a grey area of the law, where it is neither prohibited , nor legalized either.
Section 67 of the IT Act states that publishing any information, which is obscene in electronic form, is an offence and the person committing 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 also with fine which may extend to two lakh rupees.
Section 67A of the Information Technology Act makes publication, transmission and causing to be transmitted and published in electronic form any material containing sexually explicit act or conduct , punishable with imprisonment upto 5 years and fine upto 10 lakhs.
Section 67B – Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc. in electronic form.- Whoever,-
(a) publishes or transmits or causes to be published or transmitted material in any electronic form which depicts children engaged in sexually explicit act or conduct or
(b) creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner or
(c) cultivates, entices or induces children to online relationship with one or more children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource or
(d) facilitates abusing children online or
(e) records in any electronic form own abuse or that of others pertaining to sexually explicit act with children, shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with a fine which may extend to ten lakh rupees and in the event of 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 ten lakh rupees:
Provided that the provisions of section 67, section 67A and this section does not extend to any book, pamphlet, paper, writing, drawing, painting, representation or figure in electronic form-
(i) 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
(ii) which is kept or used for bonafide heritage or religious purposes
Explanation: For the purposes of this section, “children” means a person who has not completed the age of 18 years.
Section 292 of Indian Penal Code states that 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 person, who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.
(a) 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
(b) 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
(c) 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
(d) 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
(e) 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].
The test of obscenity in of Section 67 of I.T. Act is same that of Section 292 of Indian Penal Code, 1860 which was introduced in Samaresh Bose v. Amal Mitra.
Section 293 states that 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.
However it is important to keep in mind section 377 of Indian penal code, 1860 which talks about unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
This act was enacted with the aim of prohibiting indecent representation of women through the means of advertising or publication, writing, figure or in any other manner and for matters connected therewith or incidental thereto. Section 2 (c) of this act defines “Indecent representation of women” means the depiction in any, in manner of the figure of a woman, her form or body or any part thereof in such a way as to have effect of being indecent, or derogatory to or denigrating, women, or is likely to deprave, corrupt or injure the public morality or morals.
Section 6 states on the Penalty, fine which may extend to two thousand rupees’ which may extend to ten thousand rupees’ and the words ‘in the event of a second or subsequent conviction with imprisonment for a term of not less than six months but which may extend to five years and also with a fine not less than ten thousand rupees but which may extend to one lakh rupees’ shall be substituted with the words ‘in the event of second or subsequent conviction with imprisonment for a term of not less than six months but which may extend to five years and also with a fine not less than fifty thousand rupees but which may extend to five lakh rupees’.
This act covers and provides protection against pornography that portrays sexual violence against women and children exposing rape, sexual; assault and like crimes. Section 2 (a) of the act defines “harmful publication “means any book, magazine, pamphlet, leaflet, newspaper or other like publication which consists of stories told with the aid of pictures or without the aid of pictures or wholly in pictures, being stories portraying wholly or mainly-
(i) the commission of offences; or
(ii) acts of violence or cruelty; or
(iii) incidents of a repulsive or horrible nature;
in such a way that the publication as a whole would tend to corrupt a young person into whose hands it might fall, whether by inciting or encouraging him to commit offences or acts of violence or cruelty or in any other manner whatsoever;
There have been various cases where the courts have set an example for cyber criminals ,the acts of which have harmed the youth at large mentally, physically as well as emotionally. One such case is of Avnish Bajaj vs. State (N.C.T.) of Delhi, where Avnish Bajaj (Appellants), CEO of Baazee.com, an online auction website, was convicted for distributing cyber pornography. The charges were put as someone sold copies of a pornographic CD through the Baazee.com website. The item was descripted as “DPS Girl having fun” which resulted in raising alarm .
It was held by the court that the court granted bail to Mr. Bajaj subject to furnishing two sureties of Rs. 1 lakh each. The court ordered Mr. Bajaj to surrender his passport and not to leave India without the permission of the Court. The court also ordered Mr. Bajaj to participate and assist in the investigation.
Dr L. Prakash vs. State Of Tamil Nadu And Ors was the landmark case in which Dr L. Prakash was sentenced to life imprisonment in a case concerning to online obscenity. This case was also landmark in a variety of ways since it demonstrated the resolve of the law enforcement and the judiciary not to let off the hook one of the very educated and sophisticated professionals of India.
State of Tamil Nadu v. Suhas Katti, this is the case where obscene, defamatory and annoying message about a divorcee woman was put on Yahoo message group. The E-mails were circulated and forwarded to the victim for the knowledge and information by the accused through a false e- mail account opened by him in the name of the victim. This resulted into too many annoying phone calls to that woman which gave her a lot of mental trauma. The woman complained to the police and the accused was put behind bars. Later on, it was discovered that he was a known family friend of the victim and was interested in marrying her. The victim was married to another person, but that marriage was ruined and resulted in divorce and the accused then started contacting her once again. The woman was not interested in marrying him so then, he started harassing her through the internet. The court held that the accused is guilty of offences under section 469, 509 IPC and 67 of IT Act 2000 and the accused is convicted and is sentenced for the offence to undergo RI for 2 years under 469 IPC and to pay fine of Rs.500/-and for the offence u/s 509 IPC sentenced to undergo 1 year Simple imprisonment and to pay fine of Rs.500/- and for the offence u/s 67 of IT Act 2000 to undergo RI for 2 years and to pay fine of Rs.4000/- All sentences to run concurrently. The accused paid fine amount and he was lodged at Central Prison, Chennai. This was the first case which was convicted under section 67 of Information Technology Act 2000 in India.
The accused in the following case faces punishment for violation of provisions under Section 67 of the Information Technology Act, 2000 for indecent portrayal of women and men and using it to make pornographic content and selling it to various websites.
The court held that the painting, “Bharat Mata,” by Maqbool Fida Husain is not obscene under section 292 of the Indian Penal Code. It is not lascivious, does not appeal to the prurient interest, and has no tendency to deprave and corrupt persons who are likely to see it. Its artistic expression overrides any obscenity that may arise on account of the nudity depicted therein.
The petitioner in this case was a Non Governmental Organisation called Janhit Manch.Via in this petition they seeked to put a cover on all the pornographic sites and restrict them because the websites having sexually explicit content tended to have an adverse effect on the minds of youth.
“Pornography is influencing everything from how teens language and frame sexuality to how and why they pierce certain body parts to what they expect to give and receive in intimate relationships….after all, how bad can it be if the larger culture around you finds abusive and demeaning acts a turn on?” – Jill Manning, PhD, Witherspoon Institute, 2008.17
The recent proliferation of Internet-enabled technology has significantly changed the way adolescents encounter and consume sexually explicit material. Once confined to a personal computer attached to a telephone line, the Internet is now available on laptops, mobile phones, video game consoles, and other electronic devices. With the growth of the Internet has come easier and ubiquitous access to pornography. Pornography exposure contributes to sexual aggression in some users. The increase in number of rape cases can be considered to be the result of such easy access to aggravated pornography material. The best example can be of the Nirbhaya case where a juvenile was involved in such heinous crime of gang rape amounting to murder .The juvenile was the one who was the most active offender. According to me, pornography plays a very important role in increase of rape cases in India. In, India the laws do not prohibit or ban watching pornography privately i.e., consumption of pornography is no offence. The law forbids its publication, transmission, distribution or production in any form. Under the Information Technology Act, 2000, Cyber pornography is a grey area of the law, where it is neither prohibited but nor legalized either. The judiciary has played a very active role in providing protection against cyber pornography and has provided precedents where the law has been silent or lacking by applying principles of natural justice. Now the biggest question, which comes before the society, is that what is the solution for such problem, either to protect or to educate?
When youngsters are old enough to be interested in sex, they are competent enough to find ways to access Internet porn .Therefore, according to me the solution can be that the youth should be educated and not protected. For example, one educational effort could be to counsel teens that online porn is one very specific notion of sex and sexuality and should be educated about its ill effects on their health. They should be told that the frequent exposure might erode their ability to see the opposite sex in a wholesome way. It is suspected that exposure to, say, 10, 20, 30,000 pages of pornography may bias a young person in terms of what they consider a normal relationship.
Parents play a very significant role in protecting their children from the effects of cyber pornography. Parents should talk about sex or porn, early without waiting for the right time, in fact should become their friends and talk to them personally making them understand by giving true examples what is right and what is wrong for them. Parents should give them information regarding the laws framed for cyber pornography. Parents should not consume sexual media themselves. Should not watch movies with sex scenes, pornographic magazines, erotic novels and porn on the computer etc. Children should not be given unrestrained access to the Internet. Parental controls on all computers and cell phones should be done. Parents should monitor what their kids do online. Be conscious of what they are exposed to on the Internet. Teach them how to make good online choices. The school also plays a very important role too in shaping the young minds. School should provide sex education to the children for their protection. Sex education should be the part of their syllabus.The government can also initiate certain awareness programs or advertisements with the help of NGO’s in providing sex or porn education. Recently, the government took a bold step by banning certain porn sites under section 79 of the IT Act, which was a great step in preventing further youth exploitation by these porn sites. Children shape the future of the country and therefore protection to them should be our first and foremost priority.