Decoding “Obscenity”, legally
Anmol Kaur Bawa
A young feminist and lawyer-in-the-making explores the meaning of “Obscenity”.
Do your facebook posts dare to voice your political inclinations ? Love face-swapping on snapchat? Or enjoy the simple pleasures out of viewing porn? If your answer to all or any the questions is a yes, then my friend, you’re apparently a criminal under the very “instrumental” section 67 of the Information Technology Act,2000. Furthermore, if you somehow managed to gulp down the aforementioned, it shall be brought to your notice that the said section deals with “obscenity”. So now you’re a legally acknowledged “ASHLEEL” in the broadest sense of the term!
The Substantive (f)Laws: What is Obscenity?
The basic minimum threshold of any legal claim and reference is embedded in the statutory clause that intends to codify the rule and the objective behind the regulation of the same. This branch of law is called ‘substantive law’ which codes, defines and states the legal terms and rule. Classic instances include the Indian Penal Code, the Constitution of India or any Statutory Act that lays down the initial provisions of the larger objective.
The key agenda of substantive laws is to objectify the legal terms to leave no room for subjectivity. In common law, certainty and specificity of terms is of primary importance while construing the law and giving judgements therefore it is important to precisely define the terms under each section. In this light, the sections under Information Technology Act,2000 are considered as both substantive and procedural laws as they contain definitions of crimes along with the consequently prescribed punishments of the same.
A fantastic observation brought by “Legally Obscene” throws light on the poor framing of section 67. The section is stated as follows -
“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.”
The problem with such a flowery embracement of words is that they are too vague and victorian for any government official to understand in a linear sense of the term. Perhaps when laws are made, they aren’t just for the governmental organs to refer to but also for the public to explore and understand. Terms like “lascivious”, “prurient”, “deprave” and “corrupt” need a proper definition for them to constitute a definition for obscenity. Hence, this leaves space for cyber crime officers, police officers and even the judges to implement the law as per their own interpretation of what is lascivious or prurient and “corrupts” persons.
The research explains how the section has been misused in a plethora of cases. Out of the ninety-nine cases, the researchers examined, nearly all of them are instances where the situations leading to the said act of “obscenity” are very different making it difficult to determine what exactly constitutes as an obscene act. The cases range from Tanmay Bhatt snapchat filter rage to a casual comment on maharashtra CM’s vacation pictures to the heinous rape videos recorded by the rapists as token of their shameful “victory”.
How obscene is obscenity ?
The historical background provided by the research shows the genesis of obscenity to be traced back to the 17th century where obscenity was equivalent to a sin in the theological rule and censorship was seen as the only purification. This was also the time for print media to flourish, a time where freedom of speech and expression was in its initial stages of experimentation. Print soon became a weapon for the protestants to express their dissent through controversial pamphlets, highlighting lesbianism, slavery and catholic orthodoxy. This movement threatened the ruling clergy that in turn came to tag any attempt to encourage open sexuality as “obscene” the primary aim of such censors was to restrain bodily exploration and openness towards sex.
Perhaps, the journey of turning obscenity into a crime from a sin has stretched from the victorian era of bodily morality to the 20th century of bustling sexual literature.
In the Indian context, Section 292 of the IPC, the 19th century statute states the archaic words as those reflected in Section 67. One can say that the wordings of a 19th century law have been recklessly picked and thrown at during the framing of a supposedly reformed Act of 2000. What is crucial is that neither section 292 nor 67 define what exactly is meant by obscenity, it has been used over centuries first by the British and now by the Indian Govt. at the behest of their own cultural and colorable understanding of the same.
The notion of “obscenity” has more to do with the changing cultural and socio-psychological dynamics of a society. What might be obscene in one society may not be seen as the same in the other. In addition to this, Section 67 has failed to draw a distinction between sexual rights and sexual vulgarity. As a result of which any usual act of personal satisfaction has also been slapped with this barbaric law of “obscenity” .
66E v.s 67 :
The most observed mistake as to the charging of sections in this regard has been the frivolous attempt to club section 66 E of the IT Act along with 67. I rather call it frivolous for the intent behind such an arbitrary charging of cases is not because the situations in the said case match the objectives laid under the sections but because such a clubbing would yield higher imprisonment terms and exemplary damages. This is a dangerous tangent to duck through! Firstly, this promotes a retributive role of the law rather than a reformative one, that too when most of such cases are filed by either ruling party members or politically muscular men . Secondly, in cases of viral rape videos and similar cases of harassment , the slapping of section 67 along with 66 E is unjust to the dignity of the rape survivor/harassed victim. Section 66 E is stated as follows :
“Whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or with both.”
By the wordings of the section, the main objective of the law is punish the wrongdoer for any act in contravention to bodily privacy of a person (as exemplified in the section). The nuances of section 67 of the IT Act 2000, have been beautifully analysed and demystified by the NGO- “Point of View”. Under the aegis of Journalist Bishakha Datta,the research launch titled “Legally Obscene” highlights the burning question of whether the blindly adapted colonial laws should be done away with. The research focuses on the issue of “legality” of obscenity and reveals the major fallouts in very spirit of the 67th section of the IT act.
The problem arises when the police refuses to consider the “rape” video heinous enough to be an “actual rape” video and declare the victim as voluntarily “consenting” to the videography. Section 67 which should ideally punish the rapists/harassers to viral such a satanic act “lascivious” enough to “deprave” the image of the victim in the society in turn ends up charging the victim with crime of obscenity along with the rapists.
Furthermore, while section 66E intends to protect the interests of the victim whereas the loopholes in section 67 give way to violate and trap the victim in her own dilemma. The recommendations made by the research staunchly press for the deletion of section 67 which is not only meaningless but also obsolete in the growing times.
To conclude, “legally obscene” tackles not only the gruesome issue of misconstruing the section but also gives an insight of the mechanics of data collection by the National Crime Records Bureau. The research recommends the Bureau to enhance the quality of data collection by making more definite and comprehensive modules to store the raw data. Categories such as “computer geeks”, “perverts”, “mentally disabled”, “friends, relatives and neighbours” under which past cases are organised somewhat attempt to label the guilty on pre-determined notions which in turn hampers the goal of an unbiased deduction of data. Furthermore, cyber crime officers need to be educated in realms of the objectives and implementation of the various sections concerning cyber laws as many officers fail to make a distinction between section 67 and other sections which again traps the victims into their own cause.
Resource: As per Point of View, Mumbai’s research titled “Legally Obscene”.
About Our Writer: Anmol Kaur Bawa is the granddaughter of the witches they weren’t able to burn. She’s all of 18 and a law student at SLS, Pune.