Obscenity laws - POLITY

Obscenity laws - POLITY

NEWS: The Supreme Court of India granted interim protection from arrest to podcaster Ranveer Allahbadia in connection with multiple FIRs filed against him for allegedly making inappropriate remarks on the YouTube show India’s Got Latent.

 

WHAT’S IN THE NEWS?

Legal Provisions Under Bharatiya Nyaya Sanhita (BNS), 2023

  • The Bharatiya Nyaya Sanhita (BNS), 2023, which replaced the Indian Penal Code (IPC), includes specific provisions addressing obscenity in public and digital spaces.
  • Section 294 of the BNS criminalizes individuals who engage in activities such as:

·         Selling, importing, exporting, or advertising obscene materials in any form.

·         Profiting from materials that are lascivious or appeal to prurient interest (i.e., content that is overtly sexual or corrupts moral sensibilities).

·         Displaying or disseminating obscene content in electronic form, thereby extending legal accountability to digital platforms.

  • The law considers content obscene if it is likely to deprave and corrupt individuals who consume it.
  • Under this provision, a first-time offense can result in imprisonment of up to two years and a fine of ₹5,000.

 

Legal Provisions Under the Information Technology (IT) Act, 2000

  • With the rise of the internet and social media, India’s legal framework expanded to address digital obscenity.
  • Section 67 of the Information Technology (IT) Act, 2000 penalizes individuals who publish, share, or transmit obscene material electronically.
  • The law is considered stricter than traditional obscenity laws, as it applies directly to online content creators, social media influencers, and digital media platforms.
  • For first-time offenders, the law prescribes a punishment of up to three years in prison along with a fine of up to ₹5 lakh.
  • The provision aims to regulate online speech and content while maintaining a balance between digital free expression and moral standards.

 

Evolution of Obscenity Standards in Judiciary

A. The Hicklin Test (1868 - 2014)

  • Until 2014, the Indian judiciary followed the Hicklin Test, which was established in the Regina vs Hicklin (1868) case in England.
  • According to this test, content was deemed obscene if any portion of it was found to deprave or corrupt vulnerable individuals who were exposed to it.
  • The Hicklin Test was applied in India in 1964, when the Supreme Court used it to ban DH Lawrence’s novel Lady Chatterley’s Lover in the landmark case Ranjit D. Udeshi vs State of Maharashtra.
  • However, critics argued that the test was too restrictive, as it focused on isolated passages of content rather than evaluating the work as a whole.
  • In contrast, legal standards in the United Kingdom and the United States had already evolved by the 1950s and 1960s, moving towards a more holistic approach to judging obscenity.

B. Shift to the Roth Test (1957, Adopted in 2014 by Indian Judiciary)

  • The Hicklin Test was replaced by the Roth Test, which was introduced in the Roth vs United States (1957) case.
  • The Roth Test held that obscenity must be judged using contemporary community standards rather than the lowest moral denominator.
  • In 2014, the Indian Supreme Court adopted the Roth Test in the case of Aveek Sarkar vs State of West Bengal, which involved the publication of a semi-nude photograph of Boris Becker and his fiancée.
  • The judgment emphasized that:

·         Obscenity should be determined based on national contemporary moral standards rather than the opinions of particularly sensitive individuals.

·         A work must be evaluated as a whole, rather than focusing on specific words or images.

 

Free Speech vs. Obscenity Laws

  • Article 19(1)(a) of the Indian Constitution guarantees freedom of speech and expression, but this right is not absolute.
  • The Constitution allows for reasonable restrictions on free speech, including those based on decency and morality.
  • This means that speech that is deemed obscene, offensive, or against public morality can be legally restricted.
  • The judiciary has attempted to balance free expression with evolving social norms, ensuring that obscenity laws do not unduly infringe upon artistic and individual expression.

 

Past Controversies Related to Obscenity Laws

A. Urfi Javed Controversy (2023)

  • In 2023, actress and social media influencer Urfi Javed faced legal action after a BJP leader, Chitra Wagh, filed a complaint against her.
  • Javed was accused of wearing indecent clothing in public places, allegedly violating Indian obscenity laws.

B. Ranveer Singh’s Nude Photoshoot (2022)

  • Bollywood actor Ranveer Singh faced legal complaints after posing nude for a photoshoot with Paper Magazine.
  • He was booked under Sections 292, 293, and 509 of the IPC along with Section 67A of the IT Act, which criminalizes sexually explicit content.

C. Milind Soman’s Beach Photograph (2020)

  • Model and actor Milind Soman was booked by the Goa Police in 2020 for sharing a photograph of himself running nude on a beach.
  • He was charged under obscenity laws for allegedly violating public decency norms.

D. Historical Cases of Obscenity Allegations

  • Writers such as Saadat Hasan Manto and Ismat Chughtai were prosecuted during colonial India for writing about sexuality and female desire.
  • Other instances of obscenity allegations include:

·         The banning of Lady Chatterley’s Lover.

·         Richard Gere’s arrest warrant for kissing actress Shilpa Shetty during an AIDS awareness event (2007).

·         The Kiss of Love Campaign (2014), where young people protested moral policing by staging public kisses, which faced government backlash under obscenity laws.

 

What are the Key IT Rules, 2021?

  • Mandates social media to Exercise Greater Diligence:

·         Broadly, the IT Rules (2021) mandate social media platforms to exercise greater diligence with respect to the content on their platforms.

  • Ensuring Online Safety and Dignity of Users:

·         Intermediaries shall remove or disable access withing 24 hours of receipt of complaints of contents that exposes the private areas of individuals, show such individuals in full or partial nudity or in sexual act or is in the nature of impersonation including morphed images etc.

  • Educating Users about the Privacy Policies:

·         The privacy policies of the social media platforms must ensure that users are educated about not circulating copyrighted material and anything that can be construed as defamatory, racially or ethnically objectionable, paedophilic, threatening the unity, integrity, defence, security or sovereignty of India or friendly relations with foreign states, or violative of any contemporary law.

 

Features of IT Act 2000 and IT Rules 2021

Features of IT Act 2000

  • Legal Recognition of Electronic Transactions: Grants validity to electronic records, signatures, and contracts in business and legal proceedings.
  • E-Governance: Facilitates filing and managing records electronically in government offices.
  • Cybercrime Prevention: Defines cybercrimes like hacking, identity theft, and virus attacks with prescribed penalties.
  • Data Protection: Provides guidelines for securing personal and sensitive information.
  • Digital Signatures: Establishes the legality of digital signatures for secure electronic communication.
  • Certifying Authorities: Regulates certifying authorities for issuing digital certificates.
  • Liability of Intermediaries: Limits the liability of intermediaries like ISPs, provided they follow due diligence.

 

Features of IT Rules 2021

  • Grievance Redressal Mechanism: Requires intermediaries to appoint grievance officers to address user complaints.
  • Content Moderation: Mandates platforms to remove harmful or unlawful content within a specified timeframe.
  • Compliance Officers: Platforms must appoint Chief Compliance Officers to ensure adherence to the rules.
  • Traceability of Messages: Messaging platforms are required to identify the originator of certain messages for law enforcement.
  • User Empowerment: Introduces measures like user verification to curb misuse of platforms.
  • Digital Media Ethics Code: Establishes a code of conduct for online news and OTT platforms.
  • Significant Social Media Intermediaries (SSMIs): Platforms with large user bases must follow additional compliance and reporting norms.

These frameworks together aim to create a safer, more accountable digital environment in India.

 

Significance of IT Act, 2000 and IT Rules, 2021

Significance of IT Act, 2000

  • Legal Recognition for Digital Transactions: The Act legitimizes electronic records and signatures, enabling the growth of e-commerce and online services.
  • Cybercrime Regulation: It addresses issues like hacking, identity theft, and data breaches, providing a legal framework to penalize offenders and ensure cybersecurity.
  • Promotion of E-Governance: Facilitates the digitization of government services, enhancing efficiency and transparency.
  • Encourages Innovation: By creating a legal foundation for IT-based solutions, the Act fosters technological growth and digital transformation in India.
  • Framework for Digital Security: It establishes protocols for protecting sensitive personal and corporate data from misuse.

 

Significance of IT Rules, 2021

  • User Safety and Empowerment: Enhances transparency and user protection by mandating grievance redressal mechanisms and faster removal of harmful content.
  • Platform Accountability: Holds social media and OTT platforms accountable for unlawful or harmful content, ensuring compliance with Indian laws.
  • Data Privacy: Introduces safeguards for user data by mandating responsible handling by digital platforms.
  • Content Moderation: Helps curb misinformation, hate speech, and unlawful content, fostering a safer online environment.
  • Digital Media Regulation: Brings online news portals and OTT platforms under a structured code of ethics, promoting responsible content dissemination.
  • Traceability Requirement: Assists law enforcement in identifying the source of malicious or illegal content, enhancing public safety.

Together, the IT Act and IT Rules form the cornerstone of India’s digital governance, ensuring a secure, innovative, and user-focused digital ecosystem.

 

Drawbacks In IT Act, 2000 and IT Rules, 2021

Drawbacks of the IT Act, 2000

  • Ambiguity in Cybercrime Definitions: Certain offenses like hacking and identity theft lack precise definitions, leading to inconsistent enforcement.
  • Inadequate Focus on Privacy: The Act does not comprehensively address modern privacy concerns or data protection, requiring supplementary legislation.
  • Weak Enforcement Mechanisms: Enforcement of penalties and monitoring cybercrimes remain inefficient due to limited technical infrastructure and trained personnel.
  • Intermediary Liability Loopholes: Over-reliance on “due diligence” allows intermediaries to avoid accountability in certain situations.
  • Outdated Provisions: The Act has not kept pace with advancements in technology like artificial intelligence, cryptocurrency, and IoT.
  • No Provisions for Emerging Crimes: Offenses like cyberbullying, revenge pornography, and deepfakes are not adequately covered.

 

Drawbacks of IT Rules, 2021

  • Traceability and Privacy Concerns: The requirement to trace the originator of messages on encrypted platforms may compromise user privacy and encryption standards.
  • Compliance Burden: Stringent regulations place a heavy compliance burden on startups and smaller intermediaries.
  • Vague Content Moderation Norms: Broad guidelines for content removal may lead to over-censorship and stifle free speech.
  • Lack of Clear Accountability: The distinction between significant and non-significant intermediaries creates uneven enforcement.
  • Potential Misuse of Powers: Critics argue that some provisions could be misused for political or personal gains, leading to censorship or harassment.
  • Impact on Innovation: Over-regulation of intermediaries and platforms could discourage innovation and deter foreign investment in the digital space.

 

What are Information Technology Amendment Rules, 2023?

  • Obligatory for Intermediaries:

·         No platform can allow harmful unapproved online games and their advertisements.

·         They should not share false information about the Indian government, as confirmed by a fact-checking unit.

·         An online intermediary – including social media platforms like Facebook, YouTube and Twitter and internet service providers like Airtel, Jio and Vodafone Idea – should make “reasonable efforts” to not host content related to the Central Government that is “identified as fake or misleading” by a “fact check unit” that may be notified by the IT Ministry.

  • Self-Regulatory Bodies:

·         Platforms providing online gaming will have to register with a Self-Regulatory Body (SRB) that will determine whether or not the game is "permissible."

·         The platform should ensure that online games do not involve any gambling or betting elements. They should also comply with legal requirements, standards, and safety precautions such as parental controls.

  • Losing Safe Harbour:

·         If any piece of information is marked as fake by the upcoming fact check unit, intermediaries will be required to take it down, failing which they would risk losing their safe harbour, which protects them from litigation against third-party content.

·         Social media sites will have to take down such posts, and internet service providers will have to block URLs of such content.

 

Conclusion

  • The Ranveer Allahbadia controversy highlights India’s ongoing struggle to define the boundaries between free speech and obscenity.
  • Over the years, the judiciary has evolved its approach, moving from the restrictive Hicklin Test to a more balanced community standards approach.
  • The case also underscores the complexities of regulating online speech, especially in the age of social media and digital content creation.
  • As societal norms shift, debates over freedom of expression, public morality, and the enforcement of obscenity laws are likely to continue.

 

Source: https://indianexpress.com/article/upsc-current-affairs/upsc-essentials/knowledge-nugget-ranveer-allahbadia-samay-raina-obscenity-laws-upsc-9836364/