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INTRODUCTION
‘The term "obscene" refers to content that can be restricted or outlawed because it depicts sexual activity
or bodily functions in a way that is obviously offensive and has no aesthetic or educational value.’
Cyber obscenity and pornography are the cyber crimes where computer is used as a weapon. Obscenity
and pornography have been a crime since ages but with the evolution of Internet the perpetrators got a
weapon in their hands to commit their crimes with lesser risk of getting caught. Obscenity’ is the utterance
or act that strongly offends the prevalent morality of the time. It is derived from the Latin obscaena
(offstage) a cognate of the Ancient Greek root skene, because some potentially offensive content, such as
murder and sex was depicted offstage in classical drama. The word ‘porne’ stands for prostitute and
“graphein” stands for documentary. Pornography literally means documenting a prostitute or depictions of
acts of prostitutes (Kant, 2015). The most common definition of pornography is sexually explicit material
(verbal or pictorial) that is prmiarily designed to produce sexual arousal in viewers. In India, sex is a
socially immoral topic to discuss or even mention so pornography and obscenity is culturally and morally
incorrect and unacceptable in our society. Therefore, pornography and obscenity in India is more immoral
than illegal. In India, pornography is seen as an aggravated form of obscenity.
2. Cyber Obscenity and Pornography
According to Wall (2007), interest was fuelled for an increased search for pornographic material on internet
because of introduction of new types of materials like cam-girls. The online hard core pornography was
said to be operated by cyberpimps, who resourced these websites and linked them to cam girl networks and
sexportals. The virtual sex trade slowly turned into sexual information service and this encouraged the
technological advancement (Wall, 2007).
According to Viano (2017), “Cyber pornography and obscenity encompasses the range of sexual
expressions enabled by information and computer technologies (ICT); computer mediated communications
(CMC) and the distribution of sexually explicit materials online.” ICT and CMC have given way to
expansion of the sexual fetishes in the virtual world.
Viewing and producing pornography specially child pornography has also seen an increasing trend since,
the ICT and CMC have an anonymous nature and the perpetrators can do things which otherwise they could
not take part in. cyber pornography and the availability of obscene materials online had initially helped in
the establishment of cyber world or the virtual world of Internet (Viano, 2017). The content available on
the internet may be obscene and with the advancement of technology and the availability of internet on
smart phones and ipads have made the distribution or sale of obscene materials easier and more convenient
and risk free due to the anonymous nature.
Pornography means showing sexual acts in order to cause sexual excitements. It is available in the form of
pornographic websites; pornographic magazines published using the computer and pornographic materials
which is easily distributed over the mobiles. Cyber pornography is any pornographic material available
over the internet. Pornographic material may be available in different formats like MEG, WMV which are
streaming videos; JPEG are generally pictures which have been uploaded either through scanning or
produced with the help of digital cameras. GIF is the new format where the picture moves and may be
animated as well. Webcam chat is one another format where live chats can be done privately on pay per
view basis. Pornographic material is available online in text formats as stories as well.
Child pornography is a crime whereas adult pornography is not legally banned in India. It is a form of child
sexual exploitation and defined as “any visual depiction including any photograph, film, video, picture, or
computer or computer-generated image or picture whether made or produced by electronic, mechanical, or
other means of sexually explicit conduct where the production of the visual depiction involves the use of a
minor engaging in sexually explicit conduct” (Cyber Obscenity, 2012).
The paedophiles lure children to chat rooms and take advantage using or producing sexual images or videos.
The paedophiles join the chat rooms faking their age and later make friends with children. They slowly
start with sex chats to help the children shed their inhibitions related to sex. Then they start sharing sexual
images or videos and later personal information to meet outside where these paedophiles take advantage of
children by making their videos or clicking their nude photos to be used later as pornographic material.
This way many teenagers or children fall prey to many violent crimes like rape or sexual abuse. Many times
the perpetrators take advantage of people in the habit of posting their images frequently on the internet.
The images of children and women or other adults are morphed to appear pornographic by perpetrators for
their benefits. In addition children are exposed to pornography which creates a deep impact on their
understanding towards sexuality and sexual behavior.
3. Tests for Obscenity
In Regina v. Hicklin (Regina v. Hicklin, 1868), the word obscene was defined by Lord Cocklin as “any
matter which has the tendency to deprave or corrupt those whose minds are open to immoral influence and
into whose hands a publication of this sort may fall.” This led to the establishment of Hicklin test.
It is a legal test for obscenity. U.S. Supreme Court set out the Miller Standard for obscenity test. Chief
Justice Berger stated the Supreme Court’s definition of obscenity in the 1973 Miller v. Callifornia Decision
as:
“a) would the average person, applying contemporary community standards find the material as a whole,
appeals to the prurient interest?
b)Does the material depict or describe in a patently offensive manner, sexual conduct specifically defined
by applicable state law?
c) Does the material, taken as a whole, lack serious literary, artistic, political or scientific clue?”
The Supreme Court of the United States provided the fundamental criteria and three point standards to
determine obscenity in the work in Miller v. California20 .
1. That the average person, using current "community standards," would find that the work, taken as a
whole, appeals to the prurient interest.
2. The depiction or description of sexual activity or excretory functions, as expressly defined by applicable
state law or applicable law, in a manner that is offensive.
3. Whether the work lacks significant literary, aesthetic, political, or scientific worth when regarded as a
whole.
Prior to the Miller case, the Supreme Court of the United States ruled in Roth v. United States21 that
"obscene material was not protected by the First Amendment and could be regulated by the States rather
than by a single, Federal standard and also a new judicial standard for defining obscenity that invoked the
average person's application of contemporary community standards to judge whether or not the dominant
theme of the material taken as a whole was obscene or not. The Supreme Court further stated that in order
to determine how obscenity was derived, the following five factors must be taken into account:
(1) The evaluation was conducted from the viewpoint of a typical, reasonable individual.
(2) The level of obscenity was to be determined by accepted social norms.
(3) Only the works with the in issue theme shall be subject to obscenity law.
(4) A work has to be read in its whole in order to be evaluated for indecency.
(5) An indecent composition was one that was intended to pique people's voyeuristic curiosity.
The “contemporary community standard” embodied in prongs one and two, varies with locality and
time. The Court reasoned that “people in different states vary in their tastes and attitudes, and this diversity
is not to be strangled by the absolutism of imposed uniformity.” Consequently widely varied standards
from state to state may ensue.(H.Kim, 1995)
This test applied in India. The Community Standards Test says that the art or any gesture or content is
obscene only if the dominant theme taken as a whole is opposed to contemporary community standards.
Contrast to Hicklin Test: Bombay High Court in its landmark judgement in Ranjit Udeshi and Ors. v.
State of Maharshtra laid down a test to identify what material, work or content shall amount to being
obscene by interpreting the word obscene as that, which is “offensive to modesty or decency, lewd, filthy
and repulsive.” It was also stated that section 292 of the Indian Penal Code (IPC) was a reasonable
restriction on the right of freedom of speech and expression under Article 19 (2) of the Constitution. (Ranjit
D. Udeshi vs. state of Maharashtra, 1964)
the Supreme Court has ruled on several obscenityrelated issues. Even if people have different opinions on
what is and is not obscene, the supreme court believes that obscenity is a term that is broadly known.
According to the Supreme Court, "Stress should not be placed on a word here and a phrase there, or a
paragraph here and a passage there, in judging a work. Although the entire work must be taken into
consideration, the obscenity must also be looked at separately to determine whether it is so vile and
deliberate as to deprave and corrupt individuals whose brains are susceptible to such effects. In this context,
it's important to keep in mind the interests of modern society, in particular how the contested book has
affected it.
When obscenity and art coexist, the art must be so dominant as to obscure the obscenity, or the obscenity
must be so minor and unimportant as to be irrelevant and possibly overlooked. A balance between "freedom
of speech and expression" and "public decency or morality" must be preserved; nevertheless, when the
latter is materially violated, the former must yield.
The Supreme Court of India laid down the ‘likely audience test’ for obscenity in the Chandrakant Kalyan
case(Chandrakant Kalyandas Kakodar v. State of Maharashtra, 1969): “
What is obscenity has not been defined either in section 292 of IPC or in any of the statutes prohibiting or
penalizing, mailing, importing, exporting, publishing and selling of obscene matters. It is the duty of the
Court to consider the obscene passages are so likely to deprave and corrupt those whose minds are open to
influences of this sort and into whose hands the book is likely to fall and in doing so one must not overlook
the influence of the book on the social morality of our contemporary society.”
In another case Samaresh Bose v. Amal Mitra, the Supreme Court noted that; “the concept of obscenity
would differ from country to country depending on the standards of morals of contemporary society.”
However these tests have loopholes when applied to obscenity in electronic environment or cyber obscenity
thus, Dr. A.R. Lakshamanan, J. in the Ajay Goswami case (Ajay Goswami vs. Union of India, 2005) ,
while referring to the contemporary day and age of internet, laid down “responsible reader test”. The
Supreme Court observed that out the older “community standard based test” was obsolete since the Internet
had surpassed all kinds of geographical boundaries and also because the Court felt that the restriction on
selling or publishing of obscene materials was violation of the Fundamental Right to Freedom of Speech
and Expression guaranteed under Article 19 of the Indian Constitution. Thus, the Court separated art and
literature from obscenity definition
The scope of obscenity has been significantly reduced by the judiciary over the years.
In the Aveek Sarkar v. the State of West Bengal (2014) the Supreme Court did not apply the British
Hicklin test and used the American Roth test instead. As per this test, obscenity was to be evaluated from
an average person's perspective, applying prevailing community standards. The contemporary community
standards test takes into account the changing values in society and how something which could be
considered obscene ten years back would not be considered obscene today.
The Hicklin test was toppled in United State v. One Book Called Ulysses (see here), in 1933, which was
taken from an English case which a district judge permitted to allow James Joyce's "Ulysses" to be sold in
America. Judge John M. Woosley focused on the Literary value of the entire work and its effects on a
person with average sex instincts. At that time, the word obscene defined as tending to stir the sex impulsion
or to lead to sexually impure and salacious thoughts. The government of the U.S appealed Woolesy's
decision, but the U.S Court upheld his finding that Ulysses book did not come under obscene material.
Community standards test
LEGISLATIONS
Obscenity is not defined in any legislature in India, the legislations prescribe that obscenity in certain
circumstances constitute an offence. And Whereas freedom of speech and expression is a Fundamental
right guaranteed by the Constitution of India, the Supreme Court of India has held that a law against
obscenity is constitutional.
Though there was no specific section in the Indian Penal Code 1860 (IPC), section 292 deals with obscenity
that imposes criminal liability for sale, distribution etc of obscene material. The section was introduced by
the Obscene Publications Act, 1925 to give effect to Art. I of the International Convention for the
Suppression of the Circulation of and Traffic in Obscene Publications signed by India in 1923 at Geneva.
IT Act
The IT Act reveals that obscenity on internet or in electronic form following three elements:
i. Acts which publishes transmits, causes to be published
ii. Any material, video files, audio files, text files, images, animations and even CDs, Web sites,
Computer, Cell phones etc.
iii. Which is lascivious, appeals to deprave or corrupt minds of the persons.
Section 67 of the old Act was amended to reduce the term of imprisonment for publishing or transmitting
obscene material in electronic form from 5 years to 3 years and increase the fine thereof from Indian
Rs.100,000 to Indian Rs.500,000. By the virtue of this section ones who create such materials are eligible
for punishment as well as café owners and managers may also be liable if they knowingly allow their
customers to access pornographic websites
It should be mentioned here that cyber obscenity or cyber pornography has specific definition and what is
simply sexually explicit but not obscene in USA may well be considered obscene in India. Pornography on
internet is available in different formats, which ranges from pictures and short animated movies to sounds
files stories. The internet has also made possible for people to discuss and perform live sex and also arrange
for sexual activities online. These things may not be illegal but is immoral in Indian context
67A and 67B
79
IPC
IPC 292 and 293 prohibits publication, sale of obscene books, pamphlets, inter alia representation which
shall be deemed to be lascivious or appeals to the prurient interests, which can include obscene
advertisements
Section 294 (see here) prohibits obscene acts and songs. Whoever, to the annoyance of others:
• Does any obscene act in any public premises, or
• Signs, recites or utters any obscene song, vulgar words, in or near any public place.
shall be punished with the confinement of either description for a term which may extend to three months,
or with fine, or with both.
Any offense related to obscenity in electronic form can be tried under the IT Act and not under the
IPC as Section 81 of the IT Act clearly states its overriding effect. But as per the facts and circumstances
of the case, provisions of both the IT Act as well as IPC could be attracted, as done in the case of Avnish
Bajaj v. the State (NCT of Delhi), 2008.
Section 354D was added to the IPC via the Criminal Law Amendment Act, 2013 after the heinous gang
rape and murder of victim Jyoti Singh, commonly referred to as the Nirbhaya case. It includes an
individual's monitoring a woman's internet history like their email or any other form of communication.
Therefore, collecting pictures of girls from their social media profiles would come under the ambit of this
section. The offender would be punished for three years and would also have to pay a fine upon conviction.
Section 463 defines forgery, wherein any individual who makes any false documents or false electronic
record or part of a document or electronic record, with intent to cause damage or injury would be said to
have committed the offense of forgery. Section 465 provides punishment for forgery, which is
imprisonment of up to two years or fine, or both. Further, Section 471 talks about the usage of forged
documents or electronic records as genuine and imposes the same penalty on forging such a document.
Digitally altering a picture would fall within the purview of making false electronic records.
Section 509 deals with words, gestures, or acts committed with the intention to insult the modesty of a
woman. Outraging of the modesty of a woman is a section that is frequently used along with other sections
of IPC involving sexual assault. Messages passinginappropriate comments upon the body or physique of
the girls whose images were circulated in the group would come under the purview of this section. The
punishment provided under this section is imprisonment up to one year, or fine, or both.
The Indecent Representation of Women (Prohibition Act), 1986
The act punishes the coarse representation of women, which means "the illustration in any other manner
of the figure of women; her from or any other part thereof in such way as to have the effect of being
indecent, or outrageous to, or denigrating women, or is likely to deprive, corrupt or injure the public virtue
or morals.
Punishment
First Offence: Imprisonment upto two years and a fine of two thousand.
Repeat Offence : Imprisonment upto five years and fine of ten thousand to one lakh.
Young Person's (Harmful Publications) Acts, 1956
If any person advertises or makes known by any means whatsoever that harmful publications can be
procured from or through any person, shall be punishable.
Punishment
Imprisonment which may extend to 6 months or fine or with both.
National Human Rights Commission
NHRC, doing with the State Human Rights Commission, has the power to look into the protecting dignity
of women in advertisements.
Section 2(d) of NHRC Act (see here) states that human right means the rights relating to life, liberty,
equality and dignity of the individual guaranteed by the Constitution or embodied in the International
Covenants and applying by courts in India.
Exploitation of minors
Sexting a minor or sending them obscene content in the form of pictures, videos, films etc is an offense
under the Protection of Children from Sexual Offences Act, 2012 (POCSO).
Section 11 of POSCO defines and lays down the extent of sexual harassment. Sections 13,14 and 15 of the
POCSO Act state the punishment for using children for pornographic purposes.
Under Section 14, the use of a child or children for pornographic purposes is punishable with imprisonment
up to five years along with a fine.
Further, under Section 15 storage of pornographic material involving a child with the intention of
distributing it ispunishable by imprisonment of up to three years or with a fine or both.
POCSO was enacted with the objective of protecting children under 18 years against offenses such as
sexual assault, sexual harassment, and pornography.
Suhas Katti v. the State of Tamil Nadu (2004), was the first landmark case in Indianhistory pertaining to
cybercrimes. The case was filed by a divorced woman against a man who used to send her unwanted explicit
photos and messages. He was keenly interested in marrying her. He regularly sends her vulgar and obscene
messages and photos through a false email account made with the intention of harassing the victim. The
victim filed a complaint and the police subsequently investigated the matter and arrested him. It was later
found that the man was a family member of the woman and started harassing her after she denied his
proposal to marry him. The accused was found guilty under Section 469, 509 of IPC as well as Section 67
of the IT Act. The accused was compelled to pay a fine and was held up at central imprisonment.
In Chandrakant Kalyandas Kakodkar v. Province of Maharashtra (1970), the Court held that although
the term obscenity is used several times, there is no exact meaning of the word given in the statutes.
Obscenity restricts or punishes the individual mailing, granting, distributing, and sharing obscene content
and must understand the grave nature of the offense and give a verdict accordingly.
In the case of Ajay Goswami v. the UOI (2006), the Supreme Court proposed a new test known as the
responsible reader test wherein a reader should exercise due care and caution in this era of technology.
Suggestions
Pornography is the aggravated form of obscenity. In cyberspace obscenity or pornography are synonyms.
Cyber pornography is different from other types of cyber crimes in the fact that where other types of crimes
like IPR theft and cyber stalking threaten the credibility of the internet and demoralise people from using
the internet, cyber pornography encourages its users and promotes internet usage.
It also dishonours the integrity of persons who are physically, sexually or mentally harassed by the
perpetrators whose images, videos or names are used to do this business of obscenity. Many people are
misled and raped or sexually harassed by certain perpetrators who succeed in luring the others in chat rooms
to meet them in person
A better legislation with a clear definition of obscenity and pornography can help fight this kind of crime.
Awareness programmes to enlighten the common people about the side effects of such types of crimes is
also required.
Sex education among children in schools can also help the children understand the pros and cons of this
kind of entertainment industry. It can therefore be concluded that turning a blind eye and a deaf ear cannot
change the fact that cyber obscenity and pornography have become an integral part of our society. For some
it is their livelihood while for others it is a means of entertainment. For youngsters it is a source of adventure
and an answer to their curiosity about sex which just misleads them towards an immoral life.
