INTRODUCTION

Human trafficking, also known as trafficking in persons or modern-day slavery, is a crime that involves the exploitation of a person for compelled labour or a commercial sex act. The initial consent by a person will be irrelevant if it was obtained employing fraud, deception or coercion. A child cannot consent to be trafficked. Transporting a child into exploitative conditions constitutes trafficking. Trafficked women are typically acquired by kidnapping, purchase, or lured with false incentives for jobs and a better life. Once caught up in the sex trafficking industry, women and children find themselves in situations of forced prostitution, sweatshop labour, or exploitative domestic servitude. Trafficking in persons should be understood as a process rather than as a single offence. It need not involve the crossing of borders it can occur within a country.

Reasons and Impact of Human Trafficking

POVERTY Makes people more desperate and vulnerable to exploitation.
DEMAND For commercial sex in Ireland; ‘sex tourism’, often involving children, in other countries
PORNOGRAPHY Desensitises people to sexual objectification dehumanises women and distorts men’s attitudes towards, and expectations of, sex.
PROFIT One of the most lucrative illegal trades, along with drugs and weapons.
GENDER INEQUALITY Sexual objectification of women and girls in our society. The ‘girl-child’ seen as less valuable in some cultures. Selling of girls by parents.

Impacts of sex trafficking on the victim

Lack of trust; anger; sadness; fear; insecurity; shame; guilt; confusion; depression; terror; a sense of helplessness; Post Traumatic Stress Disorders (PTSD) – flashbacks, reminders, poor sleep patterns, etc.
Sexually transmitted diseases
Pregnancy

Constitutional and Legislative Provision in India

Trafficking in Human Beings or Persons is prohibited under the Constitution of India

Article 23– Protects against exploitation, prohibits traffic in humans and beggar and makes this practice punishable under law.

Article 24– protects children below age 14 from working in factories, mines or other hazardous employment.

The Immoral Traffic (Prevention) Act, 1956 (ITPA) is the premier legislation for prevention of trafficking for commercial sexual exploitation.

Criminal Law (Amendment) Act 2013 has come into force wherein Section 370 of the Indian Penal Code has been substituted with Section 370 and 370A IPC which provide for comprehensive measures to counter the menace of human trafficking including trafficking of children for exploitation in any form including physical exploitation or any form of sexual exploitation, slavery, servitude, or the forced removal of organs.

Information Technology Act, 2000

The act penalises transmission of any such material in electronic form which is inappropriate and lascivious. This act also addresses the problem of pornography.

Section 67A– Punishes publication or transmission of material containing sexually explicit act in electronic form.

Section 68B– Punishes publication or transmission of material depicting children in the sexually explicit act in electronic form.

Juvenile Justice (Care and Protection of Children) Act, 2000

The law is relevant for children who are vulnerable and are therefore likely to be the victim of trafficking. It protects juveniles in need of care and protection.

Goa Children’s Act, 2003

This act is defined precisely in trafficking and it includes every type of sexual exploitation in the definition of sexual assault. Manager and owner of the premises are responsible for the safety of minors or children in hotel premises. There are strict laws on about the safety of children and publishing pornographic materials.

Protection of Children from Sexual Offences (POCSO) Act, 2012

POCSO Act, 2012, which has come into effect from 14th November 2012 is a special law to protect children from sexual abuse and exploitation. It provides precise definitions for different forms of sexual abuse, including penetrative and non-penetrative sexual assault, sexual harassment.

There are other specific legislation enacted relating to trafficking in women and children Prohibition of Child Marriage Act, 2006, Bonded Labour System (Abolition) Act, 1976, Child Labour (Prohibition and Regulation) Act, 1986, Transplantation of Human Organs Act, 1994, apart from specific Sections in the IPC, e.g. Sections 372 and 373 dealing with selling and buying of girls for prostitution.

State Governments have also enacted specific legislation to deal with the issue. (The Punjab Prevention of Human Smuggling Act, 2012).

Measures taken by the Indian Government

Intending to tackle the menace of human trafficking, Ministry of Home Affairs, Government of India has undertaken several measures such as:

Administrative measures and interventions

Anti-Trafficking Cell (ATC)

It was set up in the Ministry of Home Affairs (MHA) in 2006 to act as a focal point for communicating various decisions and follow up on action taken by the State Governments to combat the crime of Human Trafficking.

Advisories

To improve the effectiveness in tackling the crime of human trafficking and to increase the responsiveness of the law enforcement machinery, MHA has issued comprehensive advisories to all States/UTs:

Ministry of Home Affairs’ scheme

Ministry of Home Affairs under a Comprehensive Scheme strengthening law enforcement response in India against Trafficking in Persons through Training and Capacity Building has released fund for the establishment of Anti Human Trafficking Units for 270 districts of the country.

Strengthening the capacity building

To enhance the capacity building of law enforcement agencies and generate awareness among them, various Training of Trainers (TOT) workshops on combating Trafficking in Human Beings for Police officers and Prosecutors at Regional level, State level and District level were held throughout the country.

Judicial Colloquium

To train and sensitize the trial court judicial officers, Judicial Colloquium on human trafficking are held at the High court level to sensitize the judicial officers about the various issues concerning human trafficking and to ensure speedy court process. So far, 11Judicial Colloquiums have been held.

CONCLUSION

Human Trafficking happens in nearly every country in the world, developing or developed countries. We are now living in a world where human trafficking is the fastest-growing criminal offence. 75% of human trafficking is for sexual exploitation and are female. And over 50% of all its victims are children. These individuals are forced to work every single day without pay, under threat of violence, and they’re unable to walk away. It is a violation of the fundamental human rights of the victim and affects the normal functioning of people in society. It is a global issue that must be addressed by all. We should do our bit as individuals, families, communities and the larger society to fight and eliminate this evil in our society and the world.

This article is written by Gaurav Lall pursuing BBA LL.B. (Hons.) at United World School of Law.

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INTRODUCTION

Both Cheating and Forgery are considered as crimes against the property of a person. They might sound similar to a layman but they are not the same. But, before highlighting the differences, it is important to analyse the offences of cheating and forgery independently.

Cheating under the Indian Penal Code

Cheating is defined in Section 415, Chapter XVII of The IPC as –
“Whoever, by deceiving a person, fraudulently or dishonestly induces the person so deceived to deliver any property to a person, or to consent that a person shall retain any property, or intentionally induces that person so deceived to try and do or omit to do anything which he wouldn’t do or omit if he were no so deceived, and which act or omission causes or is probably going to cause damage or harm to a person in body, mind, reputation or property, is claimed to ‘cheat’.”
To hold an individual guilty of cheating as defined under section 415 of the IPC, it’s necessary to point out that he had the fraudulent or dishonest intention at the time of creating the promise with an intention to retain the property.
In other words, section 415 requires deception of a person

1. Inducing that person to:

(i) To deliver any property to a person, or
(ii) To consent that a person shall retain any property

intentionally inducing that person to try and do or omit to do anything which he wouldn’t do or omit if weren’t so deceived and which act or omission causes or is probably going to cause damage or harm to a person, anybody’s mind, reputation or property.

The second class of acts set forth within the section is that the doing or omitting to do anything which the person deceived wouldn’t do or omit to do if he weren’t so deceived. Within the first-class of cases, the inducing must be fraudulent or dishonest. With the second class of acts, the inducing must be intentional but not fraudulent or dishonest – Hira Lal Hari Lal Bhagwati v. CBI, 2003 (5) SCC 257

The ingredients of an offence of cheating are:

(i) There should be fraudulent or dishonest inducement of an individual by deceiving him,
(ii) (a) the person who is deceived should be induced to deliver any property to any person, or to consent that a person shall retain any property; or
(b) the person so deceived should be intentionally induced to try and do or omit to do anything which he wouldn’t do or omit if he weren’t so deceived;
(iii) In cases under (ii)(b), the act or omission should be one which causes or is probably going to cause damage or harm to the person induced in body, mind, reputation or property – S.W. Palanitkar v. State of Bihar, (2002) 1 SCC 241.

The following illustrations will help in further understanding the nuances of this section.

(a) A, falsely pretends to be within the government officials, and intentionally deceives Z, and thus dishonestly induces Z to let him wear credit goods that he doesn’t mean to pay. A, cheats.

(b) A, by putting a counterfeit mark on a piece of writing, intentionally deceives Z into a belief that this text was made by a particular celebrated manufacturer, and thus dishonestly induces Z to shop for and buy the article. A, cheats.

(c) A, intentionally deceives Z into a belief that he means to deliver to Z a particular quantity of indigo which he doesn’t intend to shall deliver, and thereby dishonestly induces Z to advance money upon reliance of such delivery. A, cheats; but if A, at the time of obtaining the cash, intends to deliver the indigo, and afterwards breaks his contract and doesn’t deliver it, he doesn’t cheat, but is liable only to legal action for breach of contract.

Forgery under the Indian Penal Code (IPC)

Forgery is defined in Section 463, Chapter XVIII of The IPC as –
“Whoever makes any false document or false electronic record or a part of a document or electronic record, with intent to cause damage or injury, to the general public or a person, or to support any claim or title, or to cause a person to give up property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud could also be committed, commits forgery.”

The Supreme Court within the case of Sheila Sebastian v. R. Jawaharaj, (2018) 7 SCC 581 had observed that Section 464 defines one among the ingredients of forgery i.e. making of a false document and so as to sustain a conviction under Section 465 (Punishment for Forgery), first it’s to be proved that forgery was committed under Section 463, implying that ingredients under Section 464 should even be satisfied.

The Ingredients of an offence of Forgery are:

Section 464 explains what constitutes a false document. As per the section, an individual is claimed to form false document or false electronic record –

1.First. – Who dishonestly or fraudulently –

a. Makes, signs, seals or executes a document or a part of a document;

b. Makes or transmits any electronic record or a part of any electronic record;

c. Attaches any electronic signature on any electronic record;

d. Makes nay mark denoting the execution of a document or the authenticity of the electronic signature,

With the intent of causing to be believed that such document or a part of a document, electronic record or electronic signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of an individual by whom or by whose authority he knows that it had not been made, signed, sealed, executed or affixed; or

Secondly. – Whoever, in the absence of lawful authority, by dishonesty or fraud, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it’s been made, executed or affixed with electronic signature either by himself or the other person, whether such person be living or dead at the time of such alteration; or

Thirdly. – Who by dishonest or fraudulent intentions causes a person to sign, seal, perform or alter a document or an electronic record or to affix his electronic signature on any electronic record being aware of the fact that such person due to his unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he doesn’t know the contents of the document or electronic record or the character of the alteration.

2. Fraud. – The Supreme Court within the case of India Bank v. Satyam Fibres (India) Pvt. Ltd., (1996) 5 SCC 550 had held that forgery is that the false making of any written instrument for the aim of fraud or deceit. So, fraud is an important ingredient of forgery.

The following examples will help in further understanding the offence of Forgery.

(a) A, signs his own name to a bill of exchange, intending that it’s going to be believed that the bill was drawn by another person of an equivalent name. A has committed forgery.

(b) A, draws a bill of exchange upon a fictitious person, and fraudulently accepts the bill within the name of such a fictitious person with the intent to barter it. A commits forgery.

Difference between Cheating and Forgery

From the above analysis, we get the subsequent differences between the offences of Cheating and Forgery.

Cheating is roofed under Section 415-420 of the IPC. Forgery is roofed under Section 463-477 of the IPC.
Cheating carries a punishment of seven years and/or fine. Forgery carries a punishment of two years and/or fine
Cheating could also be caused by oral statements or documents. Forgery is usually caused on a document
In cheating, the wrong-doer deceives an individual and obtains property or other profit whereas forgery could also be committed by drawing a sum of cash from a checking account and other properties, to say it as of right basing it upon the concocted or forged documents
Cheating may cause damage or harm to the body, mind, reputation or property. Forgery may cause damage or harm to the title deeds and property only
The offence of cheating is related to the ‘offences against property’ while forgery is an offence associated with ‘documents and property marks’
Cheating relates to entire property while forgery relates to the title of the property and is indirectly related to property
Cheating can be said to be committed with or without the awareness of the owner of the property that he is being cheated, by inducing the owner of the property, who delivers the property to accused. Forgery is said to be committed without the owner being aware
Cheating is considered to be a wide offence which incorporates forgery under its ambit while forgery is often committed for the aim of cheating

The author, Nadeem Siddiqui, is a 2nd-year student of B.L.S. L.L.B. at Government Law College, Mumbai, Maharashtra. He is currently interning withLexpeeps.in.

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This article is written by Mohit Bhardwaj. A 2nd year Law student, currently pursuing BBA-LL.B(Hons.) from Unitedworld School of Law, Karnavati University. In this article, the author discusses the defence for negligence i.e. Contributory negligence. To substantiate the concept, reference is made to all the statutes covered by the topic, with relevant illustrations and case laws.

INTRODUCTION

The expression Contributory negligence means an act of negligence in which both the defendant and the plaintiff are contributors. In other words, Contributory negligence means failure to take reasonable care of one own self.

Contributory negligence is the plaintiff’s failure to exercise reasonable care for their safety. A plaintiff is a party who brings a case against another party (the defendant). Contributory negligence can bar recovery or reduce the amount of compensation a plaintiff receives if their actions increased the likelihood that an incident occurred. Often, defendants use contributory negligence as a defence.

For example- A bus driver(defendant) is driving his bus at a very fast speed and one of the passengers of that bus is waving his hand outside the window of the bus and he (plaintiff) got injured due to some object on the road by this action the plaintiff also contributed in the negligence so he will not be entitled to get compensation from the defendant.

Generally, in case of negligence, the defendant is held liable for his wrong act but if the plaintiff contributes in that act by not taken the due care and caution which he could have taken. Hence he is liable for his own loss and can not recover damages from the defendant.

Important points

Plaintiff has contributed to the negligence of the defendant
Negligence of the plaintiff in not avoiding the consequences arising from the negligence of the defendant
Here plaintiff is considered to be the author of his own wrong.

CASE LAWS

In the case of Shelton Vs L & W Railway(1946), while the plaintiff was crossing a railway line, a servant of the railway company who was in charge of crossing shouted a warning to him. Due to the plaintiff being deaf, he was unable to hear the warning and was consequently injured. The court held that this amounted to contributory negligence by him.

Understanding Contributory Negligence

Determining fault in an accident may be a critical aspect of insurance. An insurance policyholder may file an insurance claim seeking compensation for a loss or event that’s covered under the insurance policy. Insurance companies litigate to ensure that they are only liable for damages caused by their insured clients. As well, defence lawyers of the insurance companies typically plan to limit responsibility to the littlest extent possible.

Reviewing actions that led to an accident, insurers and therefore the courts determine the way to assign fault. The determination of fault will ultimately lead to deciding how much the insurer must pay as a result of the insurance claim. Insurers seek to pay as little as possible for a claim so as not to affect the company’s profitability.

In some cases, the party initiating a claim for damages may be found blameless. For example, if the insured’s property is up to code but damaged by a catastrophic event, the policyholder is likely to receive full compensation up to the coverage limit. In other cases, the individual filing a claim may be found to have contributed to the damages. As an example, a claim for property lost to fire after the insured was informed of faulty wiring but chose not to repair it may be considered negligent. Courts must decide how much damage was caused by the policyholder’s behaviour–which is the essence of contributory negligence–and payment could be reduced or denied.

The plaintiff is not entitled to recover from the defendant if it is proved that-

1)The plaintiff by the exercise of due care could have avoided the consequence of the defendant’s negligence.
2)The defendant could not have avoided the consequence of the plaintiff’s negligence by an exercise of ordinary care
3)There has been as much want of reasonable care on the plaintiffs part as on the defendants part and the former cannot sue the latter for the same.

The burden of proving negligence rests on the defendant within the first instance and within the absence of such evidence, it is not binding on the plaintiff to prove its non-existence

State Laws

Some states allow contributory negligence if it’s a substantial factor in producing the plaintiff’s injury. State law determines how this negligence impacts a victim’s ability to receive compensation after an accident or loss. Some states allow the reduction of benefit if the victim is partially responsible, while others deny payment if the victim has any fault in an accident.

Contributory Negligence vs. Comparative Negligence

Comparative negligence is employed to assign fault or blame during a claim by determining what proportion fault lies between the defendant and plaintiff. With negligence, the fault is assigned, and damages awarded proportionately supported the degrees of determining negligence. The amount rewarded in an insurance claim might be calculated as follows: Plaintiff’s recovery = (Defendant’s % of fault X Plaintiff’s proven damages).

While Contributory negligence reduces the quantity of compensation a plaintiff receives, Comparative negligence looks to assign financial responsibility in the proportion of the parties involved in causing the incident. Most U.S. states have adopted Comparative negligence over Contributory negligence either by statute or judgment.

Example of Contributory Negligence
As an example, let’s say a construction worker subject to long-term exposure to asbestos develops lung cancer. Subsequently, he dies, and the family files a lawsuit against his employer for not employing proper safety measures according to industry standards. The defendant argues contributory negligence citing that the deceased worker smoked 10 packs of unfiltered cigarettes daily for over 20 years, which could have caused or contributed to his cancer. After determining fault and awarding damages, the court reduced the amount payable by the defendant based on the plaintiff’s negligence in protecting himself from lung cancer.

CONCLUSION

Thus this defence of negligence should be distinguished from several other doctrines often applied in negligence cases: the assumption of risk, which relieves the defendant of an obligation of due care toward the plaintiff when the latter voluntarily exposes himself to certain dangers; last clear chance, which allows the plaintiff to recover albeit contributorily negligent—if the defendant had the last clear chance to avoid the mishap.

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This article has been written by Parul Sharma, pursuing BBA LLB from Centre for legal studies Gitarattan International Business School GGSIPU. In this article, she has tried to explain Cyber Pornography.

INTRODUCTION

Cyber-crime is a very broad term which includes the offences that are related to computers or the computers network for the use of communication and to send the information to another person easily and quickly. The use of internet and computers are getting people more closure in the modern society for business and e-commerce purposes, hence we understand that there are many advantages for the utilization of computers and internet and our society cannot even function properly without them.

Cyber-crime is defined as a crime in which a computer through which crime is committed like in hacking, spamming, etc or is used as a tool to commit an offence like in child pornography, etc. Cybercriminals might use computer technology to get personal information, business secrets or use internet technology for exploitative or vicious purposes. Criminals might as well use computers for the purpose of communication and storage of data or document. These people are usually referred to as hackers and cyber-crime is also called computer crime.

The Internet gives the facility to the people to connect worldwide i.e. to communicate with any person irrespective of any place, time. the internet and the computers do not bound any person with the territorial limits and give access to any person in any of the jurisdiction. It allows the people to think of and share their creativity, views and take knowledge about anything they are interested in. The way in which people share their ideas, communicate, do online transactions is one of the big reasons that the internet will continue to contour the world.

These kinds of freedom also enable computer experts to indulge in other unlawful cybercriminal activities such as hacking, bugging, cheating, fraud, etc. With the regular use of the internet in the mould of websites and blogging, people engage themselves in chatting on the internet without knowing the other person. There are many elements that have given birth to the sources concerning the society where Pornography has been a major issue in society.

Porn today is more freely and widely available on the Internet than ever before. The younger generation is, therefore, able to access it very easily and quickly than ever. This leads to the mentality of unemotional sex. And the reason behind is that we have grown up in a culture where parents feel flustered, they aren’t comfortable to have a healthy conversation about sex with their children. Well, then it’s time to open up and come out of the comfort zone to talk about the most this silent topic i.e. Pornography.

Pornography

Pornography is defined as the sexual portrayal of persons, in either words or images, created with the basic, direct aim and reasonable hope, of evoking significant sexual arousal on the part of the consumer of the material.

There hasn’t been only one definition of the law of the word pornography applied all over the world. The pornography or the pornographic material changes according to the vision and understanding of the people of various culture across the world and it has been a difficult task to define the material/content to be a pornographic content/material.

Basically, pornography is nothing but marketing of man or woman sex, shown as an object for those who get involved in sexual acts. Pornographers utilize the internet to sell their material to sex addicts and to the interested parties. Watching and keeping of these kinds of materials is illegal in India. Nowadays pornography has become a kind of a business to the society as people indulge themselves to gain the economic benefits from them.

They even put the hidden cameras and violates the privacy of the society ex: hotels, paying guest, hostels, changing rooms in the shopping complex etc. It has been a market for near about $1 trillion. Pornography existed since the pre-historic time as it was seen in the painting or rock arts.

Therefore, with emerging of time, there was an invention of photography which gave rise to pornography. The very first law which criminalized pornography was the English Obscene Publications Act 1857. The Act was applied to the UK and Ireland, and it made the sale of obscene material a statutory offence and gave the courts power to seize and destroy offending material. Pornographic film production commenced after the invention of the motion picture in 1895. Sexually explicit films exposed the producers and distributors to prosecution.

Pornography is the literature of art which have the portrait of sexuality emphasizing upon emotions and feelings. Pornography is of 2 types that is Softcore and Hardcore, where the pornography work is referred to as the hardcore content and the softcore pornography consists of nudity or partial nudity in sexual situations. Perhaps, both kinds of pornography involve nudity.

Child Pornography in India

Child pornography is an illegal act in India. Information Technology Act, 2000 & Indian Penal Code, 1860 gives protection against child pornography. Child refers to the person who is below the age of 18 years. The internet has been highly used by the abusers who reach out and abuse children sexually, globally. The internet has become a household commodity in India and its explosion has made children a feasible victim to the cybercrime.

As more homes have access to the internet, more children would be using the internet and more are the chances of falling victim to the aggression of paedophiles. The availability of easy access to the contents of pornography quickly and freely over the internet has lowered the inhibitions of the children.

Paedophiles attract the children by sharing pornographic material, and then they try to meet them for sex or to take nude photographs containing their engagement in sexual positions. Sometimes Paedophiles communicate with children in the chat room where they pretend to be teenagers or a child same age as theirs, and then they become friendlier with them to win their confidence and trust.

Then slowly paedophiles start sexual chat to help children shed their inhibitions about sex and then call them out for personal interaction. The Information Technology Act is a set of rules which made the transmission or creation of child pornography in electronic form illegal and even to surf it was made illegal. The phrase electronic form covers websites, graphics files, SMS, MMS, digital photographs etc.

The punishment prescribed for the offence of publishing, creating, sharing, downloading or browsing any electronic portrayal of children in obscene or sexually explicit manner is imprisonment for 5 years and 10 lakhs fine. Section 67 of the Information and Technology Act deals with publishing obscene information in electronic form.

Sec 67 and Sec 67A doesn’t apply on any book, paper, pamphlet, drawing, painting, writing, representation or figure in electronic form which is utilized for religious purposes or is in the concern of science, literature, art or learning. It is generally that it does not specifically define pornography or make it an offence, and does not mention child pornography. Section 67B lays down the punishment for involving in sexual explicates electronic or online contents that depict children. Inducement of children in sexual acts or into online relationships is also illegal.

The Act criminalizes online child pornography in the following situations:

Publication or transmission of any material portraying children in explicit sexual act or conduct by utilizing any computer source and communication device.
Where the user uses a computer or any communication source for watching or collecting or creating digital images or texts or promoting or downloading etc any material in any electronic form portraying children in an obscene or inappropriate or sexually explicit manner.
Growing, engaging or inducing children in online relationships with one or more children for and on a sexually explicit act or in a manner which might offend a reasonable adult on the computer resource.
Progressing abusing children online.
Recording in any electronic form is also abuse or that of pertaining to sexually explicit activities with children.

Obscenity

It has not been defined under any law/statute which penalizes, prohibits, publishing, importing, emailing, exporting and selling such obscene material or matter. The Court has the duty to analyse whether the alleged obscene content consists of obscene matter which is likely to intrigue the people and corrupt those minds who are open to such influences.

Section 292 deals with the selling of obscene books, magazines etc. Whoever sells, shares or publicly exhibits or in any manner distributes, or imports or exports any obscene book, paper, pamphlet, art, painting, drawing, representation or figure or any other obscene object which is in his/ her possession.

This section, tells that the knowledge of obscenity is not essential for the constitution of an offence. It provides punishment on first conviction with imprisonment of either description for a term which may extend to 2years and fine of 2,000 rupees, and in the subsequent conviction with imprisonment which may extend to 5 years and also fine which may extend to 5,000 rupees. Excluding the physical contact, demanding or requesting for sexual favours, displaying pornography or making sexually coloured remarks shall constitute grounds for sexual harassment and he/she shall be punished with imprisonment which may range from to 3years or fine or both, in first three cases and in fourth case imprisonment which may extend to 1 year or with fine or with both.

The punishment prescribed for the offence of any man who sees or captures the image of any women who is engaged in a private act within her private space is imprisonment of not less than a year which might exceed to three years and also with a fine and on 2nd conviction imprisonment not less than three years which might exceed to seven years including a fine.

If any person with the intent to induces a girl, who is a minor (below 18 years of age), to move from any place or force her to do any act, of which he has information that the minor girl will be forced to perform illegal intercourse with another person, shall be punishable with imprisonment which may exceed to ten years and fine for obtaining a minor girl. And if imports any girl of 21 years of age from outside the territory of India (now including Jammu & Kashmir) for the same will be punishable with 10years imprisonment and fine on such importation of girl.

In the leading case Avinash Bajaj v. State (N.C.T.) of Delhi ^[1], popularly known as Bazee.com case, an IIT Kharagpur student named Ravi Raj placed on bazee.com a listing offering an obscene MMS video clip for sale for Rs 125 per video with the username Alice-elec. Fortunately, bazee.com had a filter for posting such questionable content. Despite that the listing never took place with the description, Item 2787748- DPS Girl having fun!!! Full video + Bazee points.

An F.I.R was also filed against the bazee.com for selling such obscene material on sale. Avinash Bajaj, CEO of bazee.com was arrested by the police under Section 67 of the IT Act. Since Ravi Raj (the user who uploaded the MMS) absconded, Avinash Bajaj file a petition, seeking the quashing of criminal proceedings.

Legality of Pornography

Now let’s discuss the legality details of Pornography, our law doesn’t stop from watching pornography privately. All the law mentioned above prohibits its production, distribution, transmission, publication.

Section 67 of the IT Act 2000

Punishment for publicizing or spreading obscene material in electronic form
Imprisonment for 3years or fine of 5,00,000.
For subsequent conviction imprisonment for 5years and with 10,00,000 rupees fine

Section 293 of the Indian Penal Code (IPC) 1860

Sale, etc., of obscene objects to a young person
Imprisonment for 3years or Fine of 2,000 rupees
For subsequent conviction imprisonment for 7 years and also with 5,000 rupees fine.

Suggestions

Some of the suggestions that might be helpful are as follows:

Sex education should be made part of higher education syllabus.
Arranging sex education conferences and seminars at school, work pace and other forums for awareness.
Legislature needs to form a separate law/statute for the prohibition of pornography.

Conclusion

Cyber pornography has proven to be a threat to the whole world. It triggers the thoughts of sexual nature in an unhealthy manner in the young generation. This could be easily repressed by providing appropriate sexual education to the young generation. Pornographic content tends to influence the minds of the young generation in a manner which is unhealthy and not desirable by society as a whole.

The problem around the globe is how to restrict the children from cyber pornography and at the same time uphold the rights of adults to reach to such material. It is submitted that since the lawmakers struck down as unconstitutional, Governments all over the world can do very little to resolve. The Indian Govt. banned 800 porn sites by the year 2018.

Provisions laid down in legislation relating to cyberporn are punitive in nature. People are not given the freedom to learn and explore sexuality and due to lack of education and access to information from appropriate sources, they are the target of getting information from immoral and illegal sources. In the present situations, the best solution to this problem is education and the role of parents who must understand the responsibility of acting as teachers, friends and policeman to minor and adolescents as in many of the cases victims themselves do not have the knowledge of the ground they have been trapped into illegal acts

Citation

^[1]2005 (79) DRJ 576

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This article is written by Ishika Gupta pursuing BBA L.LB from Gitarattan International Business School. This article aims to classify the law into different heads and also tells the need for such classification.

INTRODUCTION

‘Lag’, a Teutonic word means ‘specific’ in general. Law has been derived from the same word. In simple words, a code of conduct which is specific in nature and regulates human relations and demeanour is the law. It is equally applicable to all the people of a particular state.

In a society, human beings do various activities for their livelihood, some of which are bad and some are good for the society and to control and regulate such behaviour that there is set of rules and regulations and such set is called law. Almost all aspects of life are regulated by law. Terms like human rights and fundamental rights are of great use when there are laws behind them to define, execute and implement them. If there are no such laws these terms will be meaningless. Symbol of the law indicates that justice should be impartial without and regardless of money, wealth, power and identity.

As per John Austin law as a whole is a set of those rules and regulations which are made by those men who are socially or politically of high status. In other words, a system which contains rules and regulation that the social and governmental bodies enforce in order to control human behaviour is the law. It is an amorphous set of regulations.

Need for Classification

To understand the law properly it is necessary to classify it. After classification, it becomes easy to understand the nature, scope and meaning of a particular law. The areas covered by that law can be easily identified and its enforceability can also be measured. The rules can be arranged systematically and not only it helps in the codification of law but also helps in understanding the relationship between different laws.

In India there are two main categories of law namely international law and national law, further, the national law is divided into public and private law and the chain goes so on.

Types of Law

Law can be classified into the following parts:

1. International Law and Municipal Law

International law is based upon the international agreement of treaties. It regulates the relation between different states and international persons. It tends to form a set of regulations and framework to guide states on various things like diplomacy, war, trade, human rights etc. For example, Mexico and the USA’s NAFTA is a matter of international law and so are many human rights.

Municipal laws are those which are enforceable within the boundaries of the country. it maintains the relations between citizens and also between citizens and the state. These laws can be based upon the parliamentary acts, customs or religious practices of the people of that place.

2. Public and Private Law

Public law governs the relationship between people and state. The objective of public law is to maintain the objectives of the state as mentioned in the preamble. The sources for public law include Magna Carta, natural law, bill of rights etc. Examples of public law can be constitutional law, administrative law etc. If there is any breach of law the aggrieved person may approach the court by PIL, writs etc.

Private law defines the rights and duties of people in regard to their day to day transaction i.e. it guides the legal relationship between private individuals. It is a part of the civil law system. The main objective of this law is to regulate the behaviour of individuals when they indulge with each other. The sources can be the customs, practices, traditions etc. Private law includes the law of torts and law of contracts etc. A suit can be filed if there is a breach of law.

3. Criminal Law and Civil Law

Civil law aims to regulate the relation between individuals, organizations etc. And if anyone is a victim and has suffered he is awarded compensation. In case of a suit, it is the plaintiff who is supposed to prove the offence. For instance, disputes between landlords, divorce proceedings, disputed related to property etc.

On the other hand, criminal law is involved in crimes and punishment for them. The main objective of this law is to punish for those acts which seem to be against the policy of the state. The burden of proof lies on the state. There are various penalty and in rare cases the death penalty. Crimes like theft, murder, rape etc. are covered under criminal law. In India, the Indian Penal Code is the statute for criminal law.

4. Substantive Law and Procedural Law

Substantive law is written or statutory law that regulates the relation between people or between people and state. It basically tells how the facts of the case are to be handled, as well as how to charge the particular case. It is the substance of the case that is to handle. It can function by itself and fate of the case is decided by it only.

Procedural law, on the other hand, sets the framework for the procedure of the case i.e. how the hearing will take place etc. It is a very detailed process that tells what step is to be taken next. For instance, it will decide whether a particular will go under trial or not. It needs other laws to be applied side by side.

CONCLUSION

Therefore, these are the various heads that law can be classified into and every type of law has emerged over a period of time. Since the needs of people change from time to time and the laws are made as per those needs. Hence the law must be classified properly and revised from time to time for better understanding. This also proves that a law that is convenient at present may not be suitable in future.

As per various jurists, the law is classified in order to avoid chaos or confusion in administration of these laws. As told earlier that law guides every aspect of human life and hence it is necessary that it is kept in order and understood properly so that people can apply it for the benefit of the society.

This article is written by Gaurav Lall pursuing BBA LL.B. (Hons.) at United World School of Law. The article speaks the difference between mistake of fact and mistake of law with illustrations and case laws. The provisions of IPC are also specified.

INTRODUCTION

General Defences are a set of defences, which are applied by the defendant in the Court to escape his liability in tort when the plaintiff brings an action against him. The defendant can claim the defence only if his actions fall under the specified set of conditions. If the defendant fails to prove the reason for the act, he cannot escape from his liability. There are some specific defences which are available for the wrongful acts:

Volenti non-fit injuria, or the defence of ‘consent’
Plaintiff, the wrongdoer
Inevitable accident
Act of God.
Private Defence
Mistake
Necessity
Statutory Authority.

Mistake, falling under the general defence of Torts, it can be classified into two sub-heads:

Mistake of facts
Mistake of Law

Mistake of Facts

Mistake of fact arises when any accused incorrectly interprets some fact that negates an element of the crime. This legal weapon can be used, where the accused succeeds to prove that he was mistaken to the existence of some facts or ignorant of the existence of such facts. It is a condition that such mistakes must concern to the fact, not law. Such a mistake must be reasonable and must be of fact and not of law. The legal maxim, “ignorantia facti excusati ignorantia juris non excusat” which means ignorance of fact is an excuse, but ignorance of the law is not an excuse. So it is a basic requirement to be secured under the sphere of this defence that mistake must be of fact.

Thus, it is cleared that an act will not be an offence if it is committed in an authentic manner by a person who by mistake of fact believes himself to be bound by law or who is bound by law. Such belief must be a mistake of fact not the mistake of law and that should be exercised in good faith.

Illustration

A visited B’s house with two boxes of sweets, giving it to B, A specifically mentioned that blue box is for him, whereas the red one is for C, his elder son. Afterwards, B consumed both boxes of sweets, here B cannot take the defence of mistake of fact stating that as both boxes were handed over to him, he assumed it to be his only. As, at the time of delivering the sweets itself, the conditions were specifically mentioned.

Miss X, used to get her Pomeranian dog to walk every morning. On one fine morning, while talking on the phone with her friend Miss X lost hold of her dog. While looking for her dog, she found another dog of the same breed, assuming it to be her own dog, she took it home. While later she noticed that the mark her dog had was not there and she mistakenly took another’s dog. Here, Miss X will not be liable as it was a mistake of facts.

At the same time, the mistake of fact cannot be used as a defence when it has been done knowingly, despite knowledge

Case Laws

In the case of Ayekam Angahal Singh v. Union of India, an auction was held for the sale of fishery rights, where the plaintiff made the highest bid of Rs. 40,000. The rent was 40,000 per year and the plaintiff sought to avoid the contract on the ground that he under mistake thought of Rs. 40,000 being the rent for 3 years, in this case, it was held that since the mistake was unilateral, the contract was not affected thereby the same could not be avoided.

In the case of Morrison V. Ritchie & Co., a statement was published by the defendant that the plaintiff had given birth to twins, even if the defendant had done it in good faith, he was held liable, on the ground that the plaintiff was married 2 months ago only and the defendant was held liable for the offence of defamation and element of good faith was held immaterial in this case.

Mistake of Law

Mistake of law is a legal principle referring to one or more errors that were made by a person in understanding how the applicable law applied to their past activity that is under analysis by a Court. It is no defence that the criminal defendant misunderstood or was ignorant of the law as it existed at the time. The burden is generally placed on individuals to be aware of the laws of their state or community, and thus this defence only applies in very limited circumstances. For instance, while a defendant will not be able to claim that he was not aware that murder was a crime, he may be able to argue that he was not aware of the uncertain traffic law. Specifically, the mistake of law can be used as a defence in four limited circumstances:

When the law has not been published;
When the defendant relied upon law or statute that was later overturned or deemed unconstitutional;
When the defendant relied upon a judicial decision that was later overruled; or
When the defendant relied upon an interpretation by an applicable official.

Additionally, the defendant’s persistence on any of these sources must have been reasonable, much like the mistake of fact. Thus, a defendant cannot claim that he was relying on a case from 200 years ago when it is recognized that there have been subsequent developments in the law.

Illustration

Mr S at crossing did not stop his car at a red signal. Traffic police charged him for breaking the traffic rules, here Mr S cannot plead that he was not aware of the law.

Case Laws

In the case, Grant v. Borg (1982), the person was charged under the Immigration Act 1971, for staying beyond the time limit by the leave. Here, he cannot apply for the defence i.e. mistake of law.

Provisions under IPC

“Ignorance of the Law is no excuse” but where the motive is an important ingredient, it can be used as a defence. Section 76 and 79 of the IPC deals with the general exceptions under chapter IV. Section 76 (Act done by a person bound, or by mistake of fact believing himself bound, by law)and Section 79 (Act done by a person justified, or by mistake of fact believing himself justified, by law).

CONCLUSION

In general, the mistake of fact can be used as a defence to escape the liabilities, taking the absence of mens-rea as one of the important essentials; it must have to be honest, reasonable and authentic in nature. The mistake of law is no defence to a violation of the law. It is presumed that all people know and understand the law of the land, except minors, lunatics or insane. There are few other rare exceptions to this rule.

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This article is written by PRANIT BHAGAT pursuing B.A LLB from ILS Law College, Pune. In this article, he has discussed combating cyber obscenity in India and did a comparative analysis with that of the United States of America.

INTRODUCTION

WITH THE ADVENT of the technological revolution, the concept of cyberspace also became popular with the people. The development of Information Technology is the mother of cyberspace wherein the internet provides many opportunities to the people equally for accessing any data storage and information etc. by use of high technology. New inventions and discoveries have widened the scientific scope as well as brought new challenges for the legal world. The widespread growth of these technologies has to lead to the commission of new types of crimes in cyberspace and has also become a matter of global concern. Cybercrimes are like the attack on secured information of individuals, corporations, or governments, etc. The popularity of social networking sites is increasing day by day. Due to this one can express his or her feelings very well, connect to old friends, and also make new friends. But there is a misuse of these sites by the cybercriminals for fulfilling their illegal purposes. In today’s world, teenagers are in habit of watching live sex, video clip, MMS clip, etc. Side by side the people have started to spend more and more time on networking sites because of the people’s addiction to them. Most of the time the end-users of the internet view, download, transmit, save and take a printout of obscene materials for themselves and also transmit the same to others. In modern times, the development of Information Technology affects the life of people all around the world.

Concept of Obscenity

Cyber obscenity is a very sensitive issue. The concept of obscenity changes with time and place. We cannot judge obscenity in isolation. It needs a broader perspective to understand the notion of obscenity. The obscenity is directly related to morality and decency. We can define obscenity with the help of the historical development of ‘test of obscenity’ in various countries. In Regina v. Hicklin case, the court observed that the material which has the likelihood to corrupt and deprave the minds of those persons whose minds are open to such immoral influences and who may read the publication of this type. The U.S Supreme Court in Miller v. California, given three tests for obscenity. But in Pope v. Illinois, it was held that there should be proper inquiry whether the community whose case is in the hand have serious value in that obscene material or whether a common person would find such values in it if taken as a whole. Thus, it can be said that the standards and factors for obscenity vary greatly depending on the norms and values of the state, town, or city for that matter of foreign countries. The term pornography means to describe or to show sexual acts to cause sexual excitement through obscene websites or obscene material produced by using computers, internet and also includes downloading, transmitting pornographic videos, writings, photos, and pictures, etc. Obscenity in cyberspace may be of various forms. The essential characteristics of pornography are the downloading of obscene material by using a computer and internet through the website so it also includes the hosting of websites that contain prohibited and obscene material. The pornographic material is very harmful to the young generation because it can corrupt and deprave the minds of the future of the country. There is no well-settled definition of obscenity. Material considered as a piece of artistic expression or literature in the United States of America may be considered obscene in India. The Government and law enforcement machinery have been trying to restrict the availability of this type of material but the results have not been satisfactory.

Statutory Provisions in India

Article 19 (2) of the Indian Constitution provides that the state has the power to impose reasonable limitations on freedom of expression to maintain morality and decency. To tackle the problem of obscenity and pornography, we have four major laws. The Indian Penal Code under section 292 comprehensively discusses the circumstances under which ‘obscenity’ may be an offence. In the case of Ranjit D. Udeshi v. the State of Maharastra, Honourable Apex Court interpreted the word “obscene” and stated that obscene may be defined as “offensive to modesty or decency, lewd, filthy and repulsive.” The Court further observed that it constitutes the reasonable limitation on the right of freedom of expression guaranteed by Article 19, clause 2 of the Constitution of India in the interest of morality or decency. Further, the Court in Samaresh Bose v. Amal Mitra held that the standards of morals of the society, the concept of “obscenity” may differ from one country to another country. In this case, the court also differentiated between the term “vulgarity” and “obscenity” by stating that vulgar writing is not always obscene. Indecent Representation of Woman (Prohibition) Act, 1986 prohibits the indecent representation of women by writings, painting, or through publication. It is an offence under this Act and punishable. Indian Parliament enacted The Protection of Children from Sexual Offences Act, 2012. This Act protects the children against offences of pornography, sexual harassment and sexual assault, etc. The case of Kamlesh Vaswani v. Union of India is presently pending in the Indian Supreme Court. The Apex Court has directed State to file a detailed affidavit and posed a question whether the Department of Telecom (DOT hereinafter) or any other department of Indian Government is competent to issue directions to Internet Service Providers Association of India (ISPAI hereinafter) to call off sites showing pornography. In India, the Information Technology Act, 2000 (IT Act hereinafter) contains the issue of online obscenity. Under the Act, storing or a private viewing of obscene material is legal as it does not specifically restrict it. On the other hand, transmitting or publishing obscene material is illegal. Before 2008, section 67 was the only provision of the Information Technology Act which prohibited the publication of obscene information including child pornography and obscenity. Section 67A of the IT Act, 2000 restricts the publication of sexually explicit or obscene material and section 67B of the Act specifically prohibits child pornography. This section only criminalizes the publication and transmission of sexually explicit or obscene material in an electronic form but viewing, downloading, possession, etc. is not an offence as per the provisions of the Act. The main essentials of section 67 of the IT Act are (a) transmission of the information in electronic form and (b) that publication appeals to prurient and lascivious interest. This offence is bailable, cognizable, and triable by the court of Judicial Magistrate of First Class. An explanation clause is also added with this section which states the meaning of the word used in section 67. Section 67-A was added in the Information Technology in the year of 2008. It prohibits publication and transmission of sexually explicit material in electronic form. And this section contains some exceptions on the line of section 292 of the Indian Penal Code, 1860. As we know, India is a signatory to the Convention on the Right of the Child (CRC hereinafter) and ratify the optional protocol on the state of children, child prostitution, and child pornography. So, section 67-B was added to the IT Act, 2000. Section 67-B criminalizes every type of pornography. Section 67A and 67B are the only sections that are non-bailable as per section 77B of the Act, whereas others are bailable. We also have section 69-A of Information Technology Act, 2000 where the Central Government or its officer appointed can issue directions to other government agencies and intermediaries to block such information for public access if it is in the interest of the State.

Obscenity: Under American Laws

The legislative development regarding child pornography in the USA is the Child Pornography Prevention Act, 1996 (CPPA hereinafter), and the Child Online Protection Act, 1998 (COPA hereinafter). In the United States of America, the Act of 1996 banned child pornography material which is produced by the computer technology that is a representation of sexually explicit conduct involving or appearing to involve minors. The latter Act deals with commercial site operators who offer material deemed too harmful to minors to use bonafide methods to establish the identity of visitors to their site. The Communication Decency Act 1996 (CDA hereinafter), was also passed to protect minors from pornography. The CDA states that any person, who knowingly distributes, through the use of interactive computer service or transports obscene material for sale in foreign or interstate commerce shall be liable to imprisonment up to five years for a first offence and up to ten years for each subsequent offence. In reaction to CDA, a case was filed by the American Civil Liberties Union for challenging the validity of the CDA. It was held by the Court that the Communication Decency Act placed the heavy burden on the speech which is protected. Further, in Reno v. ACLU, it was held that CDA suppresses a large amount of speech. The CPPA amended the definition of child pornography as defined under the Child Protection Act, 1984 by stating to include that which depicts the sexual conduct of child and also which appears to be a depiction of children who are engaged in sexual conduct. The depiction may include any kind of photograph, picture, video, film, or computer or computer-generated picture or images. Such depiction may be made or produced by mechanical, electronic, or other means and may be promoted, advertised, described, presented, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct. After this, COPA was enacted. It provides that minors have the opportunities for accessing any material by using the web and protects minors physically and psychologically. It imposes the restriction on a minor’s access to harmful materials, prohibits its distribution and also provides protection to children from being exposed by it on the website or internet. Then the Protection of Children from Sexual Predators Act was passed in 1998 with the purpose to expand the liability of those persons who attempts to make use of internet with the intention to spread child pornography on cyberspace. This Act specifically targets and criminalizes the knowing pornography by using the internet for commercial purposes which is harmful to minors. Minors may include children up to 16 years of age and younger. On the very next day of signing COPA, a suit was filed by ACLU in the Court with the purpose to prevent the enforcement of COPA. At last, this case reached the US Supreme Court. It was held by the court that COPA’s dependence on the standards of community with the purpose of identifying harmful material to minors does not itself render the statute substantially overbroad for the purpose of the first amount. The government was enjoined from enforcing COPA. The US judiciary has played an important role to overcome cyber pornography. In the United State v. Kufrovich case, a charge was made against the defendant for knowingly using a means of Interstate Commerce with the intention to instigate a child for engaging in sexual activity under title 18 U.S.C. $ 2422(b) and $ 2423(b). It was found by the court that the Communications Decency Act’s parts violated the First Amendment and were not according to the Constitution. The defendant contended that he had interacted through the internet with the victim as protected in the Constitution. That’s why it could not be taken as evidence against him. But the court by rejecting his contention held that the charges which were made under the statutes don’t impermissibly limit the speech. It was also held that it is a criminal offence of using means of interstate commerce with the intention to lure a child into sexual activities. In the United States v. Hilton case, Hilton was charged by a federal grand jury for violation of 18 U.S.C. $ 2252A (A)(5)(B) for criminal possession of computer disks which contains three or more pictures of child pornography. He challenged the state without denying the charges. He contended to dismiss the charges on grounds that the act was unconstitutional under the First Amendment. The U.S. District Court was also agreed with his contention regarding the vagueness of the definition of child pornography but in this case, the issue was raised whether the CPPA poses substantial problems of overbreadth and it would be sufficient to justify the decision of the lawmaking branches. In US v. Mathews, it was held by the court that under federal law each transfer of child pornographic images by email is a separate offence. The defendant contended that the successive email transmissions were also part of an online conversation that is single by nature. But his contention was rejected by the court. Later on, this decision was affirmed by the Appellate Court. In the case of Davis v. Gracey, the CD-ROMs which were obscene by nature were sold to an undercover officer by the accused. After this, a search was made on his business premises on the basis of a warrant and those CD-ROM files could be accessed by the police officers through the bulletin board and could seize the computer equipment which was used to operate it. Then a case was filed against the officers who made the search by Davis who was the related businessmen of the accused and several other users of email on his bulletin board. In this case, they alleged that there was a violation of constitutional and statutory provisions through a seizure of the email and computer equipment. It was held by the court that the original warrant was not against the constitution and the seizure of bulletin board email user files did not invalidate it. In the case of Hedeemer v. Haun, Utah’s sex offender notification statute was challenged by the plaintiff. This would make available on the internet, the sex offender registry information without any restriction to the general public. In the end, the Hon’ble court held that the registry information on the web site which is available globally will have no risk of encountering the offender and that was not related to the non-punitive goal of preventing additional sex offences with proper grounds. So it is liable to violate both clauses of Double Jeopardy and Ex Post Facto but not the Equal Protection Clause which rationally guards against the sexual offences and the Due Process Clause which contains the “non-private” information. Therefore, no cognizable harm to the reputation of the plaintiff was maintainable.

Comparative View

In India, section 292 to 294 of IPC contains the Indian law of obscenity. The IT Act, 2000 was deficient in dealing with obscenity before amendment by IT Amendment Act, 2008. It has improved the Indian law of obscenity to a greater extent. Now, the Information Technology Act, 2000 after amendment provides that storing or a private viewing of obscenity is legal as it does not specifically restrict the same. On the other hand, transmitting or publishing obscene material is illegal. There are some sections of IT Act, 2000 which prohibit cyber obscenity with certain exceptions to Section 67 & 67- A. The combined effect of sections 66E, 67, 67A and 67B is to differentiates between cyber pornography, child pornography, and mainstream pornography and to bring the online pornography within the legal regime. As compared to India, the USA’s first attempt for regulating the pornography on internet was the Communications Decency Act, 1998. Later on, a case was filed by the American Civil Liberties Union (ACLU) in which the legal validity of the provisions of the Act was challenged as against the freedom of speech. In the end, it was held by the US Supreme Court that this Act introduced a heavy burden on protected speech which can’t be accepted. Further, in Reno v. ACLU, it was held that CDA suppresses a large amount of speech, and the Child Online Protection Act, 1998, and the Child Pornography Prevention Act, 1996 contains the child pornography laws. The former Act requires commercial site operators who offer material deemed too harmful to minors to use bonafide methods to establish the identity of visitors to their site and the latter Act makes a prohibition on the knowingly use of computer technology with the intention to make a production of child pornography i.e., to depict sexually explicit conduct which involves or appears to involve minors. The Communication Decency Act, 1996 of the United States of America differentiates between mainstream pornography and child pornography while in India no such difference exists under section 292 of IPC through the IT Act after amendment in 2008 has regarded obscenity as an offence but separately defined child pornography with punishment under section 67B. In the United States of America, mere possession of obscene material is not an offence but publishing or transmission of such obscene material is an offence while in India it is not an offence to merely possess such obscene material. In the United States of America, child accessibility to porn sites is prohibited while in India browsing and downloading child porn images are punishable offences.

Conclusion and Suggestions

Obscenity is a globally recognized complex issue that has attracted the attention of jurists, lawmakers, and society at large. It can be stated that what is immoral for one may not be so for other or other society. Due to the latest technology people are becoming more power-oriented day-by-day with the full consciousness of their freedom rather than their duties to maintain the moral standards, decency, peace and order and to follow the law in the country. Above all, the judiciary is one among three organs of the government which performs the function of maintaining peace and order in the society and it is left to it for maintenance of the reason as well as a prudent repository of moral standard in the society for dealing with obscenity in cyberspace. The use of new multimedia technology is increasing day-by-day which is misused by the criminals in cyberspace. Cyber obscenity is one of those cybercrimes which is growing every day both at national and international level. United States of America and India have enacted several laws for dealing with cyber obscenity; despite this many complicated legal issues still remain unresolved. There are a number of offenses taking place in both countries but only a few cases are lodged as a complaint. But due to this the cybercriminals are day-by-day more encouraged to get involved in such types of criminal activities. It is suggested that punishment needs to be enhanced for dealing with such crimes and there is a need to adopt a specific and comprehensive definition of cyber obscenity in cyberspace. On a priority basis, there is a need to take concert action to stop all forms of obscenity and child pornography specifically. There is also a need for issuance and determination of uniform guidelines for the internet service providers and cyber cafés which expressly mention their liability and accountability such as there must be the provision for keeping the secrecy of the user’s personal information which is provided on the basis of utmost good faith. For combating the problem of publishing obscene information in cyberspace, there is a pressing need of spreading awareness in government as well as the public. It is also highly demanded that the cyber authorities must be technically trained from time to time. There is a need to inculcate the culture of continuous learning education among law enforcement authorities because present knowledge becomes obsolete in a very short time. Society at large must be aware of the fact that they are also encouraging such activities by searching online obscene/pornographic material with the intention to satisfy him/her mentally. Searching online obscene material results in financially supporting those persons who are uploading such obscene information for gaining profit and such profit increases with an increase in the number of subscribers and viewers. So, firstly, we should check ourselves not to provide financial support to cybercriminals indirectly. Involving ISP’s would be a good strategy and it would restrict the supply and may prove to be more beneficial as compared to simply identifying and prosecuting users of child pornography. As we know that prevention is better than cure. The punishment for cyber obscenity must include all the four theories of punishment, i.e. retributive, deterrent, preventive, and reformative theories.

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This article is written by Samridhi Sachdeva pursuing BBA LLB from Gitarattan International Business School, GGSIPU. This article tries to explain about one of the major cyber crimes, i.e. cyber stalking, types of cyberstalking and how to avoid being one of the victims. It also lists some laws that give protection from cyber stalking.

INTRODUCTION

Technology, nowadays, is being updated on a regular basis. From taking help from Google to getting jobs online, technology has developed in many ways. It allows one to open up in front of people and share their emotions and keep their opinions in front of others. It has given us all the advantages to get more aware, educated and confident about everything going on around the world.

But, when you talk about the advantages of one thing, there come the disadvantages attached to it. The technology in today’s world lets people know about each other’s lifestyle, hobbies and much other personal information. And many people, whether known to us or not misuse this and try to threaten or bully us through social media platforms, emails or any websites etc. Such things are known as “cyber crimes” and the Information Technology Act, 2000 and The Indian Penal Code describes these cyber crimes and their punishment.

One of the most committed cyber crimes is “cyber stalking”. In this, the person or the stalker uses any of the electronic means to harass, stalk or threaten the victim to take revenge from the victim, to control the victim or just because of the anger issues. Further, the article provides a clear view of cyber stalking.

Cyber Stalking

Cyber stalking, is a crime that is done using the online platform to stalk, harass or threaten the victim in order to get control over the victim, take revenge or for some financial gains as well. It is a continuous process and it often leads to or is accompanied by offline stalking.

And cyber bullying or cyber trolling is very different from cyber stalking. Cyber trolling and cyber bullying are often taken as jokes or normally. As the celebrities or the semi-celebrities create their social media platforms, they are ready for the negative comments too. But cyber stalking is a repeated process, and the stalker harasses or threatens the victim, in a very negative manner and on a regular basis tries to hack their system or passwords for catfishing.

Catfishing- It is a part of cyber crimes. When a person tries to pose as someone else and create a different profile with those photos and orders something online or copy the existing profiles of the users for all this purpose, then that is known as catfishing.

Factors

False accusation/victimisation: The stalkers usually put false accusations and play the victim role to commit this crime and harass the original victim for the reasons of money basically.
Attempts to gather information about the victim: The stalker tries to take information about the victim through online resources.
Encouraging others to harass or threaten the victim: The stalkers even try to involve the third person by forcing them to harass the main victim.
Monitoring their online activities and attempting to trace their IP address: The stalkers generally, through some sites or social media monitor the victim’s online activities and try to obtain their IP address to look after what all the victim is doing online.
Hacking the data and equipment: The stalkers use different techniques and try to hack the victim’s computer, laptop etc. and get all the data to threaten the victim.
Orders goods and services: The stalkers after hacking the data and email passwords of the victim, orders some goods and services and delivers to the victim’s address only. This goods and services most of the time include pornographic material only.
Defamation: The stalker defames or spoils the image and reputation of the victim by posting negative and false content online.

Types of Cyber Stalking

Stalking by Stranger: There is no particular definition of a stalker. A stalker may share a former or present relationship but most of the time it is done by a stranger who does not know the victim that much but has only known him through an online portal.
Intimate partners: The stalker is sometimes your own partner with whom you share an intimate and romantic relationship. It is a type of domestic violence only. The partners may threat or harass the other partner by sending them threatening emails or using their emails. The stalkers do this to get control over their partner.
Celebrities and public persons: The celebrities and public persons become the victim of cyberstalking too soon. The stalkers do this for being in the public eye and getting fame. The stalkers are usually the fans of the celebrities and may make up fake stories about the celebrities and take the risk of cyber stalking just for fame.
Corporate Cyber Stalking: Some individuals or a group of them threatens or harass an organisation or vice versa. This is done for financial gains and controls.

Laws related to Cyber Stalking

As the stalkers have no particular identity, they have anonymous identities online, so it is sometimes difficult to catch the stalker. Also, the victims should not post any personal information on a public platform. Or else it will be very easy for the stalkers to get control over or defame the victim. The laws on cyber crimes are given under the Indian Penal Code and IT Act, 2000 in India. The laws related to cyber stalking are as follows-

Section 354D, Indian Penal Code: This section deals with stalking and clause(2) of this section talks about cyber stalking. Anyone who commits the crime of cyber stalking fulfilling the conditions under this section shall be punished with an imprisonment of 3 years at first stage and imprisonment of five years at the second stage.
Section 354A, Indian Penal Code: This section provides that if someone comments something fake or negative about the victim, then the person shall be punished with an imprisonment of one year and fine.
Section 354C,.Indian Penal Code: This section provides punishment for voyeurism, when a man posts fake and defaming things about a woman. Cyber stalking is a crime that includes voyeurism too.
Section 66E, IT Act: The guilty person may publish images that can violate the privacy of the victim and is liable to be punished with the punishment of imprisonment for a term of 3 years and with fine of 2 lakhs to 10 lakhs.
Section 67, IT Act: This section particularly deals with cyber crimes and their punishment.

Conclusion

Cyber stalking has laws related to it, which can save the image and reputation of the victims. When the man is harassing or threatening a woman, then the woman can go and report to the National Commission for Women (NCW). Otherwise, they can complain in court. And to avoid stalking, the people should try to keep a low profile online, and maintain their digital hygiene, don’t share your IP address or passwords with anyone and avoid sharing your personal information. If you don’t want to take this to court, then the first step you can do is to block and report the accounts of the stalker.

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This article is authored by Pankhuri Pankaj, a 3rd-year student pursuing BA-LLB (Hons.) from Vivekananda Institute of Professional Studies, affiliated to GGSIPU. She is currently interning with Lexpeeps. This article summarises certain key provisions of “Emergency Provisions” in the Indian Constitution and is qualified in its entirety by reference to the Constitution of India.

INTRODUCTION

Human right laws are the backbone of any constitution and have been given utmost importance to sustain the essence of humanity in the society and they have been given international relevance through the ¨Universal Declaration of Human Rights¨, 1984. Socio-economic rights of a person which deal with the human right to adequate living conditions including food, housing, and clothing, the right to physical and mental health, right to work, right to education, right to a healthy and clean environment, etcetera, are considered a core part of the human rights laws that developed after the World War II.

Socio-economic laws have played a very important role in the development of countries across the world, especially in the developing countries. These laws ensure the growth of a country not at the cost of the humane rights of its citizens.

Comparative Study of Judicial Enforcement of Socio-Economic Rights in Developing Countries

To get a better look at judicial enforcement of socio-economic rights in developing countries, one can draw a good picture by examining judicial social-economic rights in India and South Africa. Divergent jurisprudence has been developed by the Constitutional Court of South Africa and the Supreme Court of India regarding socio-economic rights. On one hand, there is the South African Court with the clearer constitutional mandate for judicial enforcement has afforded deference to legislative and executive policy choices within the bounds of reasonableness reflecting the progressive approach adopted by the Constitutional Assembly, while on the other hand, the Indian Court has read the provision for enforcement of Fundamental Rights expansively to enforce socio-economic rights enumerated under the Directive Principles of State Policy, while simultaneously relaxing procedural and standing barriers to enforcement by individual claimants.

INDIA

The expansion of enforceable socio-economic rights by the India Court´s began after Prime Minister Indira Gandhi sought to weaken judicial review during the period of Emergency Rule from 1975 to 1977. Gandhi declared a state of emergency allowing her to rule by executive decree, suspended habeas corpus, and restricted freedom of the press after she was convicted by the Allahabad High Court in 1975 for election fraud in connection with the 1971 general elections. In the landmark case of Keshvananda Bharati v. State of Kerala (1973), it was held by the hon’ble court that any amendments to the Constitution of India are to be held violative of the ¨basic structure¨ of the Constitution. In response to this, the then Prime Minister, Indira Gandhi, appointed her own nominees, who had dissented Kesavananda, as Chief Justice of the Supreme Court, violating tradition, and further, during the emergency period passed four highly controversial Constitutional Amendments which were designed to limit the judicial scrutiny on the actions of the government.

The 42nd Amendment, which was passed during this catastrophe, aimed at overruling the landmark judgement of Kesavananda Bharati Case by prohibiting the Court from reviewing constitutional amendments, adding a provision which required a two-thirds vote of the Court to invalidate statutes as unconstitutional, and declared the 1971 election to be beyond judicial review altogether. This amendment also gave the socio-economic Directive Principles in Part IV of the Indian Constitution precedence over the Fundamental Rights in Part III of the Constitution, authorizing authoritarian socialism which resulted in the detention of political opponents. Following this utter disaster concerted by the arbitrary usage of vital powers democratic procedures were restored with the election of the Janata Party in 1977 and the controversial constitutional amendments were repealed, while the Court decided a number of landmark cases extending judicial review into the realms of socio-economic rights.

Another case which contributes to perfectly exemplify the judicial enforcement of socio-economic rights in a developing country like India is the case of Maneka Gandhi v. Union of India (1978), where the Court held that Ms. Gandhi´s Fundamental right to personal liberty was directly violated by the state’s action to confiscate her passport without any sufficient procedure established in the law. In continuation to the opinion of the court in this case, in the case of Francis Coralie Mullin v. Union Territory of Delhi (1981), the Court decided to expand the Fundamental Rights of life and personal liberty to include the right of a detainee to “live with human dignity,” which also included the bare necessities of life that a human deserves. Finally in the case of Bandhua Mukti Morcha v. Union of India (1993), the Court explicitly associated the right to life with the socioeconomic Directive Principles and further added that the right to live with human dignity, enshrined in Article 21, derives its life breath from the Directive Principles. In furtherance the Court simultaneously decided to relax procedural and standing barriers to public interest litigation and that the Court was of the belief that these reforms were necessary because the very purpose of the law was undergoing a transformation.

These cases stand testimony to the fact that judicial enforcement of the socio-economic rights in a developing country like India has played a major role in keeping the element of humanity alive in the society, and to successfully keep this key element an embedded party of the society, many times the courts have taken it upon themselves to act as a policymaker as well, for example in the “Right to Food” Litigation (2003), where the court declared a duty on the parts of the states to provide emergency nutrition and issued forty-nine various interim orders between the years 2001 and 2005 implementing its judgment at a detailed level of social policy, touching on everything from school lunches to accountability, altogether taking care of the socio-economic rights of the citizens of the country.

SOUTH AFRICA

The South African courts have given greater discretion to policymakers and demonstrated greater deference to policy choices. The first case the Constitutional Court of South Africa heard was Soobramoney v. Minister of Health where the claimant challenged a hospital policy prioritizing curable cases for publicly-funded dialysis treatment at the expense of terminal cases such as his. It was a case where a private individual sought to enforce constitutional socio-economic rights. It was held by the court that the policy was reasonable in light of the limited resources available for health services, and it did not violate the constitutional right to emergency healthcare, and they further added substantive limits to this deference for reasonable policy choices in the case of Republic of South Africa v. Grootboom (2000), where the Court required the government to implement a ¨coherent program¨ directed towards the progressive realization of the constitutional right within the state’s available means, the Court held that a government housing project violated this obligation because it failed to prioritize assistance to those living in intolerable conditions or crisis situations. Later in Berea Township v. City of Johannesburg (2008), the court added a procedural dimension to the reasonableness standard of review in Occupiers of 51 Olivia Road requiring the government to engage in good-faith consultations with the community before pursuing evictions, and take resulting homelessness into consideration.

The Constitutional Court of South Africa has created an obligation for the government of South Africa to pursue progressive realization rather than achieving individual entitlements by occasionally granting judgements against the state while refusing to award individual remedies to successful litigants which have helped in reinforcing an understanding of socio-economic rights in the country. This element can be better understood by taking into account cases like that of Grootboom where the Court declared a housing policy unconstitutional and required the government to revise it, but denied immediate or direct relief to claimants, the case of Nokoty ana v. Ekurhuleni Metropolitan Municipality (2009), where the court held that the government’s failure to reach a final decision to improve an informal settlement violated residents’ rights to adequate housing, but deferred to the government’s proposed plan to review and remedy the situation and refused to grant monetary relief to individual claimants, the case of Njongi v. Department of Welfare (Eastern Cape (2008)), where the Court held that the cancellation of a disabled woman’s benefits without notice or explanation was severely devoid of all humanity and it ordered the restoration of her benefits, etcetera.

Time and again the Court of South Africa has taken it on itself to safeguard the socio-economic rights of the citizens of the country implementing judicial enforcement of socio-economic rights in the fairly developing country and maintaining the essence of humanity.

CONCLUSION

To conclude the study of judicial enforcement of socio-economic rights in a developing country, a developing country is a dynamic state with a lot to gain and the most to lose. To keep a growing pace it is important for such a state to maintain a peaceful harmony between the state and its subjects, here socio-economic rights play the role of the backbone of the development in the society by keeping the key element of humanity embedded in the society. In a ruthless state driven by ambitions to achieve big judicial enforcement of these socio-economic rights play the most important role in avoiding unnecessary exploitation of the subjects of the nation and contribute to the rather healthy development of the state.

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INTRODUCTION

Reasons and Impact of Human Trafficking

Impacts of sex trafficking on the victim

Constitutional and Legislative Provision in India

Information Technology Act, 2000

Juvenile Justice (Care and Protection of Children) Act, 2000

Goa Children’s Act, 2003

Protection of Children from Sexual Offences (POCSO) Act, 2012

Measures taken by the Indian Government

Administrative measures and interventions

Anti-Trafficking Cell (ATC)

Advisories

Ministry of Home Affairs’ scheme

Strengthening the capacity building

Judicial Colloquium

CONCLUSION

INTRODUCTION

Cheating under the Indian Penal Code

1. Inducing that person to:

The ingredients of an offence of cheating are:

The Ingredients of an offence of Forgery are:

Difference between Cheating and Forgery

INTRODUCTION

Important points

CASE LAWS

Understanding Contributory Negligence

State Laws

Contributory Negligence vs. Comparative Negligence

CONCLUSION

INTRODUCTION

Pornography

Child Pornography in India

Obscenity

Legality of Pornography

Suggestions

Conclusion

INTRODUCTION

Need for Classification

Types of Law

1. International Law and Municipal Law

2. Public and Private Law

3. Criminal Law and Civil Law

4. Substantive Law and Procedural Law

CONCLUSION

INTRODUCTION

Mistake of Facts

Illustration

Case Laws

Mistake of Law

Illustration

Provisions under IPC

CONCLUSION

ABOUT US

NATURE OF INTERNSHIP

LOCATION

DURATION

ELIGIBILITY

INTERNSHIP BENEFITS

APPLICATION PROCEDURE

CONTACT DETAILS

INTRODUCTION

Concept of Obscenity

Statutory Provisions in India

Obscenity: Under American Laws

Comparative View

Conclusion and Suggestions

INTRODUCTION

Cyber Stalking

Factors

Types of Cyber Stalking

Laws related to Cyber Stalking

Conclusion

INTRODUCTION

Comparative Study of Judicial Enforcement of Socio-Economic Rights in Developing Countries

INDIA

SOUTH AFRICA

CONCLUSION

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