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Priyanka JadhavMedia LawSocial Media Disruption of the Media Law Landscape in India:
The use of Internet has been growing; it is not just used for welfare of people, but misused too. The different types of crimes that are committed through internet are hacking, cyber stalking, cyber defamation, cyber fraud and forgery, cyber obscenity, etc. The Internet has given rise to a new industry that publishes and consumes obscene materials online. Millions of people around the world visit websites catering to service of such materials. Such sites represent the largest growth sector of digital economy. Obscenity is a very sensitive issue around the world and yet, there is no settle definition of the word under law. No one is sure what one can find as obscene and the other can find the same as art.
What is obscene in India?Media in India has remained free and independent until the Emergency. The post-independence time has witnessed differences of opinions on what can be disseminated through media. The interesting point to note here is that of the results produced when the processes of law met materials that certain group of society considered as ‘obscene’. Actors, writers, painters and various other artists have at various times faced prosecution for circulation of so called obscene materials. ‘She is humiliated, stripped naked, paraded, made to draw water from the well, within the circle of a hundred men. The exposure of breasts and genitalia to those men is intended by those who strip her to demean her.’ The portrayal of the tragic story of dacoit Phoolan Devi in Bandit Queen fell in a legal battle when a criminal case of obscenity was filed against the makers. The petitioners objected to some scenes depicting nudity and violence in the movie and claimed that they were obscene, lascivious, and would corrupt and deprave the minds of the viewers and hence, a criminal act under Section 292 of the Indian Penal Code.
Section 292 of IPC states that any 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 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 to read, see or hear the matter contained or embodied in it, under any circumstances. The second sub-section of 292 further elaborates it by saying that whoever is in the possession of, or sells, distributes, publicly exhibits, or produces any of the materials listed above and are considered obscene or even imports, exports or conveys, or takes part in or receives profits of, or advertises or does an act that is an offence under this section shall be punished. This excludes any material that is of public good or of religious purpose, like ancient monuments.
One should understand that the quest of unanswered questions related to what is obscene and what is not involves the quest for identifying the limits of one of our main freedoms: freedom of speech. Obscenity is not given any protection under freedom of speech, the first amendment of our constitution. When the Supreme Court struck down section 66 A in the Shreya Singhal case, the verdict hailed as a landmark milestone in Indian free speech jurisprudence. The court found merit in her argument that words used in Section 66 A were rather vague, and because of the same reason, neither the accused nor the authorities could be clear of what the offence really was and what kind of charges should the accused be charged with. Here is what Section 66 A says: Punishment for sending offensive messages through communication services. This includes any information that is grossly offensive or is false, but causes annoyance, inconvenience, danger, criminal intimidation, hatred, ill-will, etc. The message could be in form of attachment in text, images, videos or audio or any other electronic record. Petitioner Shreya Singhal challenged the constitutional validity of the act of following grounds. Firstly, it infringes the fundamental right to freedom of speech and expression. Secondly, it is an ‘insidious form of censorship’ that impairs a core value in Article 19 (1) (A). Thirdly, it infringes the rights of individuals under the Articles 14 and 21. But don’t you think Section 66 A has failed as merely scrapping a law does not in any way ends abuse, right?In 2015, more than four thousand people were charged under Section 66 A. The police officials continue to implement the IT Act judiciously, this is due to the ineffective information that Section 66 A has. Even though declared unconstitutional by Supreme Court in 2015, there were whiffs in the air in 2016, according to Newslaundry that it might come back as portions of it were proposed in a report on Functioning of Delhi Police.
Through this case, doesn’t a question rise within you about how India views obscenity on social networking sites and applications?
This year began with WhatsApp getting a legal notice from Gurmeet Singh, a lawyer, asking the popular app to remove the middle finger emoji on the grounds that the gesture is obscene and illegal in India. The middle finger represents the male reproductive organ and thus, ‘insults the modesty’ of whomever it is shown to. Facebook has high rates of troubling cases under Section 66 A of the Information Technology Act. The contentious section has been in the eye of storm for a while now. There are few cases that have made to the news in past years under Section 66 A. One of them being Aseem Trivedi, the cartoonist who was arrested by the Mumbai Police for displaying cartoons on his website and Facebook page that mocked parliament and corruption in high places. The second case that came to light could also be because it led to Shreya Singhal fighting for the lousy laws and sections of India was of two young girls who lived in Mumbai. They were arrested for hurling religious sentiments when the city was shut down for Bal Thackeray’s funeral. Despite having cyber laws for 15 years, and amid numerous complaints of stalking and bullying, online harassment usually goes unpunished in India. The first ever cyber-stalking case in India was that of Manish Kathuria in 2005. He impersonated a woman he met in a chat room. He would pretend to be her, use obscene language, give out her home phone number and invite callers. Online harassment cases like this usually go unreported as police usually blame the victim and the lousy laws do not help much either. The most visible of cyber-crime cases are the vicious trolling that is not tolerated by some like the followers of Prime Minister Narendra Modi. His fans are known for their low tolerance against criticism. Police is reluctant to act against people in power, so such attacks usually are not punished for. Police in India are more likely to take action when they see threats that are physical. The IT Act needs to be amended and take into account cyber stalking and cyber bullying. Experts and victims both agree that without the law strengthening and officials taking strict actions against cyber-crimes, it’d be challenging to do anything about it. When obscenity charges are in context, any question related to it in India goes unanswered many a times. India is yet to go a long way to reach a universal standard of obscenity observed in the world at large especially the western world. India needs to come out of its conservative shell & have a much broader outlook towards judging any content as obscene. But that does not mean that materials that degrade someone or is indecent, offensive and vile are supposed to be given a pass. There is a thin difference between what is obscene and what is not. The kind of feature films, short documentaries or small clippings of ads that are been banned or referred to as obscene in India is a clear revelation that India needs to grow more aware that world is changing and becoming accepting. Speech that doesn’t harm religious sentiments or trolls that aren’t so vicious that it harms reputation is not considered obscene.
The Supreme Court of India has watered down the Hicklin Test, introducing exceptions and qualifications. Supreme Court adopted the test of ‘obscenity, without a preponderant social purpose or profit cannot have the constitutional protection of free speech and expression.’ India leaves the judge to decide what is obscene and whether he should bring his personal convictions in the process or not. Indian courts believe that what is usually seen as obscene or what can easily corrupt minds is the ‘tendency of the matter.’ It can be defined as whether the obscenity of the matter can be decided objectively or people’s fundamental rights to freedom of speech and expression should be kept in view justly. The judiciary lays emphasis on the readers – especially the young adults – as such contents tend to corrupt their mind more than as compared to adults. Here the intention, inclination and motivation of the author or the publisher are immaterial. Obscenity is a globally recognized complex and sensitive issue which has attracted attention of many. What is immoral and obscene for one, shouldn’t necessarily be the same for another. The latest technologies has driven people to become more power-oriented, granting them access to different websites that are not restricted to what to put up and thus people are fully conscious of their freedom rather than their duties to maintain decency and moral standards and not disregard someone’s sentiments. Even though the misuse of multi-media technology has been growing, the judiciary should know its function to make peace and orders maintained in society and have full knowledge on how to deal with obscenity in society.