Khajuraho Sculpture

People carrying pornographic or other indecent material on their phones can end up getting prison terms of up to three years under a new law proposed by the ministry of women and child development headed by Maneka Gandhi.

Under the ‘Indecent Representation of Women Act’, anyone possessing printed content, drawings and films “which contains indecent representation of women in any form” can be punished with up to five years of imprisonment.

So far, the law was applicable only to printed material or drawings, but Maneka Gandhi’s ministry has decided to extend the law to digital content as well.

Nearly all forms of pornography, except male homosexual depictions, come under the purview of the Act.

According to the law, a first-time offender can be punished with up to 2 years in prison, while a repeat offender must be given at least six months and can be given up to 5 years in prison. However, the term will be brought down to up to three years under the amended law, the ministry said.

In case the content is produced or distributed by a company, such as an app provider, the executives of the company will be liable for imprisonment.

IMPLEMENTATION

The law, as it stands, gives gazetted government officers the power to search for and seize such material, including from private homes.

However, to enter a private home and conduct a search, the officer must get a warrant.

On the other hand, the officer does not need any warrant for searching any property or device in a public place as long as he “has reason to believe that an offence under this Act has been or is being committed.”

If the law is extended to digital content as is, it would give government officials the power to seize mobile phones, laptops and other electronic equipment from citizens on mere suspicion that they may contain indecent material.

GOING DIGITAL

The Indecent Representation of Women Act, applicable to printed material, was passed in 1986.

The ministry feels that it needs to be updated, given that ‘content’ is increasingly being consumed in the digital format.

“Since the enactment of the Act, technological revolution has resulted in the development of new forms of communication, such as internet, multi-media messaging, cable television, over-the-top (OTT) services and applications e.g. Skype, Viber, WhatsApp, Chat On, Snapchat, Instagram etc,” it said in a statement.

“Keeping in mind these technological advancements, it has been decided to widen the scope of the law so as to cover such forms of media on one hand and to strengthen the existing safeguards to prevent indecent representation of women through any media form on the other,” it said.

CHANGES

To update the law, the ministry will replace the words “produce or cause to be produced, sell, let to hire, distribute, circulate or send by post” by “publish or distribute or cause to be published or cause to be distributed by any means,” thus bringing all devices and content into its ambit.

The government said it will also tweak the definition of the word ‘publish’ to further enhance the scope of the law.

Typically, person-to-person exchange — such as a letter sent by one person to another by post — is not considered an act of publication as the ‘public’ is not involved.

As such, a video chat — for example from a wife or girlfriend to her husband or boyfriend — would not come under the traditional meaning of ‘publish’ as it is one-to-one communication, in a way that uploading a video to Youtube is not.

However, the ministry seems intent on changing this. “The reformulated bill proposes.. (the) insertion of a new definition to define the term publish“, it said.

If a citizen feels that he or she has been wrongly prosecuted under the new law, they can approach a committee set up under the ministry, it added.

A STEP BACKWARDS?

However, the new law is likely to come into conflict with the recent Supreme Court judgement that citizens enjoy a fundamental right to privacy.

For example, to implement the new law, police officers and other government officers will have to search the mobile phones, PCs, pen-drives and other devices of citizens to check if they contain “indecent representation of women”.

However, such checks would also be an intrusion into the citizens’ privacy.

The move would also go against the Supreme Court’s recent stand that an individual has the right to watch pornographic content in the privacy of his or her home.

Nudity and depictions of sexual acts are a part of Indian culture and can be found in many public places, including temples.

However, these became taboo subjects when India was subjected to the cultural domination of foreign powers, especially the British, who viewed sex as a sin in keeping with their Christian religious heritage.

The majority of Indian laws, inherited from the times of the British, carry forward this legacy of foreign cultural imposition and reflect the sensibilities of the 19th century British officials who framed them.

In recent years, most countries including Britain, have rejected 19th century concepts of morality and moved to norms that are more in keeping with traditional Indian ideals.

However, Indian lawmakers are yet to bring local laws in conformity with either modern Western concepts or with traditional Indian culture.

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