“Section 67 A in The Information Technology Act, 2000
77 [67 Punishment for publishing or transmitting obscene material in electronic form. -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 INDECENT REPRESENTATION OF WOMEN (PROHIBITION) ACT, 1986 (NO. 60 OF 1986)
An Act to prohibit indecent representation of women through advertisements or in publications, writings, paintings, figures or in any other manner and for matters connected therewith or incidental thereto.
Penalty: Any person who contravenes the provisions of Sec 3 or Sec 4 shall be punishable on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and in the event of a second or subsequent conviction with imprisonment for term of not less than six months but which may extend to five years and also with a fine not less than ten thousand rupees but which may extend to one lakh rupees.
[Section 292. In the Indian Penal Code – Sale, etc., of obscene books, etc.— 261 ]
(1) For the purposes of sub-section (2), a 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 (where it comprises two or more distinct items) 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, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.] [(2) ] Whoever—
(a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever, or
(b) imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowing or having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation, or
(c) takes part in or receives profits from any business in the course of which he knows or has reason to believe that any such obscene objects are for any of the purposes aforesaid, made, produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any manner put into circulation, or
(d) advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person, or
(e) offers or attempts to do any act which is an offence under this section, shall be punished 263 [on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and, in the event of a 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 five thousand rupees].
Section 293 in the Indian Penal Code
265 [293. Sale, etc., of obscene objects to young person.—Whoever sells, lets to hire, distributes, exhibits or circulates to any person under the age of twenty years any such obscene object as is referred to in the last preceding section, or offers or attempts so to do, shall be punished 2[on first conviction with imprisonment of either description for a term which may extend to three years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to seven years, and also with fine which may extend to five thousand rupees].]
R. Basu v. National Capital Territory of Delhi and Another
Citation: 2007CriLJ4245
Judges: A.K. Sikri J
Facts: Mr. Arun Aggarwal, a practising advocate, filed a complaint before the learned Chief Metropolitan Magistrate (CMM) against Star TV, Star Movies and Channel V, naming persons responsible for the day-to-day affairs of these channels or the various cable operators transmitting these channels. According to the complainant, the obscene and vulgar TV films shown and transmitted through various cable operators amounted to obscenity and, therefore, the accused persons had committed offences under Sections 292/293/294 IPC and under Section 6 read with Section 7 of the Indecent Representation of Women (Prohibition) Act, 1986.
Acting on this complaint, the CMM viewed these films and, on 9 April 1997, ordered a police inquiry into who was responsible for the exhibition of the films. After the police report was received, the complainant was examined on 17 July. After hearing arguments, the CMM passed an order on 24 September 1997, prima facie finding that the four films shown on these TV channels were obscene. The accused persons were summoned under Section 292 IPC, Section 4 read with Sections 6 & 7 of the Indecent Representation of Women (Prohibition) Act, 1986 and Section 5A read with Section 7 of the Cinematograph Act, 1952. The accused filed this petition before the Delhi High Court challenging this summoning order. The High Court judges quoted the CMM’s order, in which he refers to each of the four movies in question, explaining their contents and why he finds them obscene. The CMM mentions the haphazard mushrooming of cable television networks all over the country, resulting in the availability of signals of foreign television networks via satellites. According to the CMM, “The programmes available on these satellite channels are predominantly western and totally alien to our culture and way of life. Such programmes play havoc with the moral fabric of society and need to be regulated.” The CMM observed that viewing of these movies by the public at large would not have been possible without Cable Operators.
Issues: Did the accused persons violate Sections 292, 293, and 294 of the Indian Penal Code (relating to obscenity), and Section 6 read with Section 7 of the Indecent Representation of Women (Prohibition) Act?7
Arguments: The petitioners argued that two of the movies had been awarded “A”certificates by the CBFC and therefore were immune from being prosecuted for obscenity under Section 292 of the IPC and the Indecent Representation of Women Act. With regard to the other two movies it was admitted that they have no censor certificates.
However, they stated that with respect to the movie, “Big Bad Mama,” the application for certification had been made to the CBFC. They argued that these movies are telecast from other countries via satellite and broadcasters comply with various strict internal codes as well as the statutory codes prescribed by the Broadcasting Authority of the place of uplink. In respect of some of the individual accused persons, it was argued that they were not responsible for the telecast of these movies.
Decision: The High Court held that for the two films without censor certificates the petitioners could not claim immunity from Section 292 IPC. For the other two films, also, the Court said that, since the petitioners had not produced CBFC certificates, they could not claim immunity from prosecution.
The Court observed that the legislature had enacted the Cable Television Network (Regulation Act) to tackle the “problem” of obscenity, and a Programme Code had also been introduced. “Various statutory safeguards for regulating transmission on cable television networks in India have been provided therein. The petitioners have to abide by these guidelines and laws relating to the electronic media, keeping in mind the sentiments and social value of the Indian society, while relaying its programmes.”
The Court observed that, in view of this development, a joint application was moved by the petitioners and the complainant, in which the complainant agreed not to press his complaint in view of the aforesaid statutory provisions and other provisions now in place.
Mr. R. Basu vs National Capital Territory Of Delhi on 4 June, 2007
https://indiankanoon.org/doc/661900/