Law relating to Cyber Pornography in India

September 4, 2011, by | Start Discussion

Pornography or obscenity is very sensitive issue all over the world yet there is no settled definition of the word under any law. What is nude art or sexually explicit thing for one person may be obscene or porn for another. Hence, it is very difficult to define “What is porn?”

There have been many attempts to limit the availability of pornographic content on the Internet by governments and law enforcement bodies all around the world but with little effect. Classic example is a website, www.incometaxpune.com, prima facie, it looks a website of Income tax department of Pune City, but actually it’s a porn site. Though it was blocked many times by law enforcement agencies in India, it is still available with obscene contains.
 
Pornography on the Internet is available in different formats. These range from pictures and short animated movies, to sound files and stories (remember “Savitabhabhi”!!!). The Internet also makes it possible to discuss sex, see live sex acts, and arrange sexual activities from computer screens. Although the Indian Constitution guarantees the fundamental right of freedom of speech and expression; it has been held that a law against obscenity is constitutional. The Supreme Court has defined obscene as “offensive to modesty or decency; lewd, filthy, repulsive”.
 
Section 67 of the Information Technology Act, 2000 penalizes cyber pornography. Other Indian laws that deal with pornography include the Indecent Representation of Women (Prohibition) Act and the Indian Penal Code.
 
Section 67 reads as under:-
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.
 
This section explains what is considered to be obscene and also lists the acts in relation to such obscenity that are illegal.
 
Explanation
Any material in the context of this section would include video files, audio files, text files, images, animations etc. These may be stored on CDs, websites, computers, cell phones etc.
 
Lascivious is something that tends to excite lust.
Appeals to, in this context, means “arouses interest”.
Prurient interest is characterized by lustful thoughts.
Effect means to produce or cause some change or event.
Tend to deprave and corrupt in the context of this section means “to lead someone to become morally bad”.
Persons here refers to natural persons (men, women, children) and not artificial persons (such as companies, societies etc).
 
To be considered obscene for the purpose of this section, the matter must satisfy at least one of the following conditions:-
 
  • it must tend to excite lust, or
  • it must arouse interest in lustful thoughts, or
  • it must cause a person to become morally bad.
 
The above conditions must be satisfied in respect of a person who is the likely target of the material.
 
Illustration 
Sameer launches a website that contains information on sex education. The website is targeted at higher secondary school students. Pooja is one such student who is browsing the said website. Her illiterate young maid servant happens to see some explicit photographs on the website and is filled with lustful thoughts.
This website would not be considered obscene. This is because it is most likely to be seen by educated youngsters who appreciate the knowledge sought to be imparted through the photographs. It is under very rare circumstances that an illiterate person would see these explicit images.
 
Acts those are punishable in respect of obscenity:-
Publishing” means “to make known to others”. It is essential that at least one natural person (man, woman or child) becomes aware or understands the information that is published. Simply putting up a website that is never visited by any person does not amount to publishing.
 
Transmitting” means to pass along convey or spread. It is not necessary that the “transmitter” actually understands the information being transmitted.
 
Information in the electronic form includes websites, songs on a CD, movies on a DVD, jokes on a cell phone, photo sent as an email attachment etc.
 
The punishment provided under this section is as under:-
 
First offence: Simple or rigorous imprisonment up to 3 years and fine up to Rs 5 lakh.
 
Subsequent offence: Simple or rigorous imprisonment up to 5 years and fine up to Rs 10 lakh.
 
Amendments of 2008 introduced new Section on Cyber pornography i.e. Section 67A.
 
The Section makes publishing or transmitting of sexually explicit act or conduct illegal with a punishment of imprisonment upto five years and with fine which may extend to ten lakh rupees for first offence and seven years for subsequent offences.
 
Hence, the Section makes publishing or transmission of blue films, audio sex clips, pictures, magazines and any other material in the electronic form involving sexually explicit acts illegal.


Sagar is a Law graduate. He is Head at Asian School of Cyber Laws(Maharashtra). He specializes in Cyber Law, Intellectual Property Law and Corporate Law. He teaches at numerous educational institutions across India.

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