Article 19 provides the citizens, freedom of expression. However, this freedom is not absolute. There are various restrictions to this freedom. One of them is decency and morality, where the government has the agency to control the content of any type.
The Government has an overarching provision in the form of Article 292 of the Indian Penal Code and Section 67 of the Information Technology Act, 2000. There are recent incidents of journalists and activists being booked under this law. These laws are used to politically censor content in the name of ‘obscenity.’
This Section 67 of the IT Act has a resemblance to Section 66(A) of the IT Act, which was struck down by the Supreme Court, in Shreya Singhal v. Union of India, for being vague and failing to provide ‘manageable standards’ of imposed restrictions. Section 67 promotes harassment and causes deep harm to the freedom of expression.
What Is Section 67 Of The IT Act?
Section 67 of the IT Act deals with the publication and transmission of obscene material in electrical media and digital media. It says,
“Whoever publishes or transmits or causes to be published or transmitted in the 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 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 three years and
with fine which may extend to five lakh rupees and
in the event of 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 ten lakh rupees.”
Whereas part A of section 67 of the IT Act criminalizes the publication and transmission of any sexually explicit content. It says,
“Whoever publishes or transmits any
material containing any sexually explicit act in the electronic form
any material which contains sexually explicit act or conduct
will be punished with
imprisonment of either description for a term which may extend to five years and
with fine which may extend to ten lakh rupees and
in the event of second or subsequent conviction with imprisonment for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.”
There have been several inadequacies in the act. Firstly, it does not define obscenity, and it is entirely subjective to interpretation. Also, it criminalizes consensual conduct and endangers the privacy of individuals.
Several reports have found that the people are booked under Section 67(A) more than Section 67, and the laws are used interchangeably. The word ‘publishing’ and ‘transmission’ are not defined clearly.
There is no definite distinction between sexually explicit and obscene content. These loopholes lead to the chances of misuse and misinterpretation of the laws.
Definition And Scope Of Obscenity
The origin of obscenity dates back to the Greek theatre that refrained from depicting violent and sexual scenes on the stage. Later, the Regina v. Hicklin (1868), or the Hicklin test, became a defining marker of what constitutes obscenity.
The Hicklin test for obscenity was accepted by the Supreme Court as a standard in the case of Ranjit Udeshi vs the State of Maharastra. According to the English case, this test confirms the material to be obscene if the test depraves and corrupts those who are likely to read it. This test was discarded in its own country before it was adopted by the Indian court.
However, the test was eventually dropped, and a new three-prong test was introduced, which was similar to the community standards test adopted by the US Supreme Court. The three-prong test required material to be ‘patently offensive,’ possess ‘no redeeming social value,’ and be evaluated as per the ‘contemporary community standards.’
But the experts argue that the last stage of the test- ‘the contemporary community standards’ is vague and manipulable. This might echo the concerns of majoritarian views of the public regarding morality.
The courts have made sure that popular sentiments do not drive the judgments, and hence the basis for any judgment should be wholly based on the legality of the Constitution.
The Court in Navtej Singh Johar explicitly stated that “It is expected from the Courts as the final arbiter of the Constitution to uphold the cherished principles of the Constitution and not to be remotely guided by the majoritarian view or popular perception. The Court has to be guided by the conception of constitutional morality and not by societal morality.”
Similarity And Difference Between Article 292 Of IPC And Section 67 Of IT Act
In the offline scenario, Article 292 stands for its counterpart, Section 67. Both the laws are misinterpreted and misused because of the undefined and vague term ‘obscenity.’ Because of the vagueness, the laws are leading to indiscriminate arrests.
Article 292 of the IPC provides exceptions for religious, scientific, literary, or artistic purposes, but Section 67 does not have these exceptions. The jail term and fine under IPC Section 292 for first-time offenders are two years and Rs. 2000, respectively.
Under Section 67, the jail term is five years, and a fine of Rs. 5 lakh is imposed on first-time offenders. The jail term and fine on a second conviction are three years and Rs. 5000 under IPC Section 292, but five years and Rs 10 lakh under Section 67.
Misuse And Inadequacy Of The Provision
The 2017 report, ‘Guavas and Genitals,’ analyses National Crime Records Bureau data as well as media reports on cases of obscenity.
This study was carried forward by a non-profit organization, Point of View, which works on gender rights, sexual violence, and the digital rights of women. This report drew attention to the indiscriminate and increasing use of Section 67 of the IT Act by the police across India.
Bishakha Datta of Point of View said, “Rape videos are booked under the anti-obscenity provision but not for violation of the victim’s consent.
The primary harm when a nude picture of a woman gets taken and distributed without her knowledge is not of obscenity but of violation of her privacy. The Delhi Public School MMS case is a classic case of violation of consent, but there seems to be no legal resonance with consent.”
In July 2016, Ajay Hatewar was booked for a “defamatory” comment against Maharastra Chief Minister Devendra Fadnavis’s picture with his family on a yacht. A person from Tamil Nadu was arrested under Section 67, in 2017, for allegedly making “filthy” comments about Prime Minister Narendra Modi in a private Facebook conversation.
The police arrested freelance journalist Prashant Kanojia for making objectionable comments against Uttar Pradesh’s Chief Minister Yogi Adityanath.
Journalist Prabhat Singh was arrested, in Chhattisgarh, for making comments on WhatsApp against the Samajik Ekta Manch, a vigilante group with close links to the Bastar police. These incidents show that Section 67 is being used as a weapon for harassment by the Government for its defense.
The vagueness of the obscenity law in India gives discretionary power to the government to frame people in intense cases, which eventually leads the people to lose their freedom of expression. This has a chilling effect on people as they do not know the extent to which the law can affect them.
The sexually explicit content’s definition is extremely dubious. The LGBTQ content, or even kissing with consent, can be dubbed as sexually explicit and lead to arrests that are being policed not by the Constitution but by the morals of the majority.
This also leads people to have self-regulation and a spiral of silence as they do not know when and where the surveillance can have them arrested. This law breaches the privacy of individuals and legitimizes the illegitimate intrusion into the personal space of the people.
The draconian provisions of some laws have breached individual rights instead of safeguarding them. It is the responsibility of the media and the judiciary to create awareness and strike off such laws that are vague and gives unlimited power to the executive.
The dissent maintains the democratic structure of the country, and dissent only arises if there’s awareness and the right to raise a voice.
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