Tuesday, August 25, 2009

The Indian I.T. Act, Section 67-A


Pornography and Obscenity

The term ‘pornography’ when used in relation to an offence is not defined in any statutes in India but the term ‘obscenity’ has been effectively explained in two statutes in India, and these legislations prescribe that ‘obscenity’ in certain circumstances constitutes an offence. These legislations are
(i) The Indian Penal Code, 1860 (‘IPC’) and
(ii) The Information Technology Act, 2000 (‘IT Act’).

Although neither the IPC nor the IT Act defines what ‘obscenity’ is, section 292 of the IPC and section 67 of the IT Act, (which corresponds to section 292 of the IPC) explain ‘obscenity’ to mean anything which is lascivious or appeals to the prurient interest or if its effect is to deprave and corrupt persons. Therefore according to the law in India, anything that is lascivious or appeals to the prurient interest or if its effect is to deprave and corrupt persons would be considered to be ‘obscene’.

Obscenity as an offence under the Indian Penal Code.

Section 292 of the IPC comprehensively sets out the circumstances in which ‘obscenity’ and / or any ‘obscene’ material is an offence.

According to section 292, (i) whoever 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 (ii) imports, exports or conveys any obscene object for any of the purposes mentioned in (i) above, or knowing or having reason to believe that such obscene object will be sole, let to hire, distributed or publicly exhibited or in any manner out into circulation, or (iii) 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 mentioned in (i) above, made, produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any manner put into circulation, or (iv) 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 section 292 or that any such obscene object can be procured from or through any person or (v) offers or attempts to do any act which is an offence under section 292, is punishable with imprisonment and fine. Therefore, obscenity is an offence if it falls within any of the above prescribed purposes.

Obscenity – personal viewing – Is it an offence

Section 292 also sets out the purposes under which obscenity is not deemed to be an offence and these are when any such material is used (i) justifiably for the public good for e.g. interest of science, literature, art or learning or other purposes of general concern (ii) for bona-fide religious purposes and (iii) in any ancient monument within the meaning of the Ancient Monuments and Archeological Sites and Remains Act, 1958 or in any temple, or on any car used for the conveyance of idols.

Obscenity under the Information Technology Act

Section 67 of the IT Act lays down the law that obscenity is an offence when it is published or transmitted or caused to be published in any electronic form. The expressions, ‘publishing’ or ‘transmission’ have not been specifically defined under the IT Act, but in Taxmann’s commentary under the IT Act, ‘publishing means making information available to people’. The commentary also states that ‘transmission’ and not mere possession, of obscene information is an offence. Transmission may be addressed to an intended recipient for his personal use. But that is not relevant. The act of ‘transmission’ is sufficient to constitute an offence under section 67 of the IT Act. Therefore if any obscene material is published or transmitted in any electronic form it is an offence under section 67 of the IT Act.

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