Tag: Law of Crime Notes

Cyber Pornography and Laws regulating it

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This post is written by Anushree Tadge, a 3rd-year law student of ILS Law College, Pune, explaining the topic considered to be a taboo but still dealt with, through legislations- Cyber Pornography.

Introduction

Cyber Pornography is a global problem now. The government has been taking crucial steps to ban websites possessing pornographic content following the Courts. However, people have found ways and means like VPN, DNS Server Change, downloading search engines with inbuilt VPN activation, to continue watching cyberporn. Now, this becomes a very controversial issue because can there be any decision as to if a person should be punished for watching such content? Or are the service providers to be held responsible for possessing pornographic content? Are the laws stringent enough to regulate cyberporn? 

Meaning of ‘Pornography’

‘Pornography’ is a Greek origin word, this can be divided into two “Porne” meaning prostitute and “graphos” meaning description. Pornographic content includes any video, pictures or other media that generally contain sexually loud acts considered to be indecent by the public.

The term pornography is used for the publication of the act instead of the act itself, and therefore, this does not cover the ambit of sex shows or striptease. People all over the world have been debating over whether pornographic content is just an artistic expression of the human body and sex as an act or is it an immoral act hurting people’s religious sentiments.

Concept of pornography has never been so broad as it is at this point of time. Pornography as a topic now been divided into softcore and hardcore pornography. The point of difference between the two being the depiction of penetration.

Cyber Pornography as a term means the publication, distribution and designing of pornographic content by using the medium of cyberspace. It is a product of the advancement of technology. Since the Internet has become so easily available in the modern times, people can view different porn on their devices, and even upload such content online. 

Cyber Pornography

Internet covers pornography as much as 30 per cent of its total content. But the catch here is only 10% of this content is on the web, rest can be found on dark work and the deep web. According to the statistics of the year 2005, there were almost 2 billion searches for porn, the revenue generated through this industry is also quite a lot, it is the fastest growing industry and is estimated to generate approximately $60 billion in the year 2007.  The U.S stands as a first ranker in the entire pornography industry. Almost  $12 billion of the U.S revenue is spent on porn followed by the country, Australia, which extracts a total of $1.5 billion revenue from the industry. The easy availability to the Internet has helped a lot of people to view pornographic content even without any hindrance to their privacy and without even disclosing their identity to the site developers.

Legal Aspect

Various legislations are enacted so as to regulate Cyber pornography in our country, India, this includes the Information Technology Act of 2000, the Indian Penal Code, the Indecent Representation of Women’s Act and Young Person’s (Harmful Publication) Act. These are explained briefly below-

Information Technology Act, 2000

Cyber Pornography is not legitimised or even banned under the IT Act of 2000.

  • The IT Act restricts the production and even distribution of cyber pornography but it does not prohibit the viewers to view or download any pornographic content excluding child pornography.
  • Section 67 of the IT Act, 2000 makes the below listed acts punishable, the punishment being imprisonment for a term of three years and fine up to Rs. 5 lakhs

Publication, Transmission, Causing to be published or transmitted

The Intermediary Guidelines provided under the Information Technology Act put the burden on the Intermediary or the Service Provider to exercise accurate due diligence so as to ensure that their portal/ site is not being misused.

So, viewing Cyber pornography is legitimised in India as merely downloading and viewing of content does not lead to an offence. Although publication of such content online is illegal storing the same is not an offence but again, transmitting such cyber pornography via messaging, emails or any other kinds of digital transmission is an offence.

According to Section 67 (B) of the IT Act, 2000, any individual not attained the legal age- 18 years is a child. Child pornography is illegal and below listed acts are considered as an offence-

  • Publication or transmission of any material through electronic means that depict children engaged in a sexually explicit act or similar conduct.
  • Depiction of children in an obscene act or similar in a sexually explicit manner.
  • Normalising and encouraging child abuse online.

Although exceptions like media for religious education, for the study of sexology or even if a photograph of a child is utilised so as to explain the anatomy of a child won’t be considered as an offence.

Indian Penal Code, 1860

Section 292 of the Indian Penal Code, 1860 prohibits the sale of any obscene material or any sexually explicit content. 

Section 292(1) states the meaning of “obscenity” and also states that any content will be deemed as obscene in case it is lascivious or as prurient or even if any part of such content has the intention to probably corrupt people.

Whereas Section 292(2) briefly explains what will be the punishment for sale, distribution, such materials. This would be applicable to any person who sells, distributes, hires, exhibits publicly or puts any obscene material into circulation. This will also cover the imports or exports of such obscene material. A person involved in receiving profits or advertising content from any such business shall also be held responsible. Offers to do or attempts to do any act which is prohibited under the section.

  • On the first conviction, a person may face rigorous imprisonment that may be up to 2 years and a  fine up to  ₹2,000.
  • On the second conviction of such person, he/ she shall be awarded imprisonment for 5 years along with a fine that may extend to ₹5,000.

Section 293 of the Indian Penal Code, 1860, provides for the punishment of a person who is involved in selling, hiring or distributing any obscene material to any other person who is of age below 20 years.

  • On the first conviction, a person shall be imprisoned for 3 years along with the fine up to ₹5,000, and
  • On the subsequent second conviction, imprisonment may extend to 7 years with a fine up to ₹5,000.

Indecent Representation of Women’s Act, 1986

Indecent Representation of Women’s Act, 1986 is a legislation which seeks to prohibit the representation of any women or any of her body part in an indecent manner such that any such representation will hurt the public morality on grounds like indecency, hurting of religious sentiments etc. 

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

The latest and very popular ‘POCSO Act’ also regulates cyber pornography effectively. Actually, The POCSO Act, 2012 was specially enacted so as to prevent children from any kind of sexual offences. But the act also protects children from crimes such as sexual assault, sexual harassment, and child pornography. This act aims and works so as to protect the interests and well-being of minor children. The Act is gender-neutral and considers any individual below 18 years to be protected as a ‘child’ under this legislation. The provisions relating to ‘Cyber Pornography’ listed under the POCSO Act are explained below:

Section 13 of the POCSO (The Protection of Children from Sexual Offences)  Act, 2012, defines the offence of ‘child pornography’, and explains it as whosoever, uses any child in any type/kind/ form of media for purposes of sexual gratification shall be considered as guilty of the offence of child pornography. Also, Section 14 of the same,  POCSO Act, 2012, states the punishment for a person guilty of using any child for pornographic purposes.

Punishment for using a child for pornographic purposes in both POCSO Act, 2012 and the bill of 2018 is listed under-

Offence related to Punishment under POCSO, 2012 Punishment under the 2018 Bill
Child PornographyMaximum – 5 YearsMinimum – 5 Years
Child Pornography with sexual assault, penetrative, etc Minimum – 10 Years; Maximum – Life Same as Act
Child Pornography with extreme and harsh penetrative and sexual assault Only Life ImprisonmentMinimum – 20 Years;
Maximum – Life Imprisonment, Death Penalty
Child Pornography with other sexual assaultsMinimum – 6 Years;
Maximum – 8 Years		Minimum – 3 Years;
Maximum – 5 Years
Child Pornography with extreme sexual assaults other than above mentioned Minimum – 6 Years;
Maximum – 10 Years		Minimum – 5 Years;
Maximum – 7 Years

According to Section 15 of the POCSO (The Protection of Children from Sexual Offences) Act, 2012, provides punishment for a person involved in storing pornography that involves a child, in any kind of form, in that case, he shall be awarded imprisonment up to a period of 3 years or fine or with both.

Conclusion

The regulations in India for cyber pornography are mediocrely stringent and readers should understand that such punishments are fine as ‘porn’ is still a very controversial topic, the most effective and safe method to curb such menace of cyber pornography and the other vices on the Internet is an attempt by the state so as to achieve social maturity by making people aware through education and even after so we live in a state where individual’s choice cannot be controlled, as to what a person wishes to see. Although child pornography resulting in sexual assaults is serious and cannot be neglected no matter what. Parents should be friendly and educate their children the same, that will be the best for under-aged kids curiosity to watch such content.

References

  • https://www.psychologytoday.com/us/blog/all-about-sex/201611/dueling-statistics-how-much-the-internet-is-porn.
  • https://pdfs.semanticscholar.org/d5ac/9d42834942df20b7224d4c45831cd487ce91.pdf
  • https://indiankanoon.org/doc/1318767/
  • https://www.itlaw.in/section-67b-punishment-for-publishing-or-transmitting-of-material-depicting-children-in-sexually-explicit-act-etc-in-electronic-form/
  • https://indiankanoon.org/doc/776798/
  • https://indiankanoon.org/doc/776798/
  • https://www.advocatekhoj.com/library/bareacts/childrenprotection/13.php?Title=Protection%20of%20Children%20from%20Sexual%20Offences%20Act,%202012&STitle=Use%20of%20child%20for%20pornographic%20purposes
  • The Protection of Children from Sexual Offences (Amendment) Bill, 2019; The Protection of Children from Sexual Offences Act, 2012: PRS
  • https://www.advocatekhoj.com/library/bareacts/childrenprotection/15.php?Title=Protection%20of%20Children%20from%20Sexual%20Offences%20Act,%202012&STitle=Punishment%20for%20storage%20of%20pornographic%20material%20involving%20child

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DIFFERENCE BETWEEN KIDNAPPING AND ABDUCTION

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This article is written by Deepika, pursuing BA-LLB from IIMT & School of Law, GGSIPU, Delhi. In this article, she has discussed ‘kidnapping’ and ‘abduction’ which are offences punishable under the Indian Penal Code along with this, she has also discussed the difference between both the offences.

INTRODUCTION

‘Kidnapping’ and ‘Abduction’ are offences which take place all over the world. From North-America to Asia, the governments are working hard in order to deliver justice by prosecuting the perpetrators. Kidnapping and Abduction are mainly done in return for something which could be anything ranging from money to making others do acts which are illegal in nature to save their loved ones and bring them back home safely.

In our country ‘Kidnapping’ and ‘Abduction’ are increasing at an alarming rate creating a concern both for the government and society. The reason for the seriousness of these two crimes is that they lead to various other crimes and in most cases, their common targets are women and children.

Both these offences of kidnapping and abduction are covered under Chapter XVI of IPC titled ‘of offences affecting the human body’. Apart from the general definition, the Indian Penal Code has given a wider spectrum to define the terms.

Kidnapping

Section 359, 360 & 361 of Indian Penal Code deals with ‘Kidnapping’.

  • Section – 359, IPC states that Kidnapping can be classified into two kinds ‘Kidnapping from India’ or ‘Kidnapping from Lawful Guardianship’.
  • Section – 360, IPC states that whoever conveys any person beyond the limits of India without that person’s consent, the person who takes such person is said to kidnap that person from India.
  • Section 361, IPC provides that when a person entices a minor (16 years for male and 18 years for female) or a person of unsound mind, the person so enticing will be held liable for kidnapping such minor or person from lawful guardianship.  

Essential ingredients of the section are

  1. Taking or enticing away a minor or a person of unsound mind by someone
  2. Such a minor must be under the age of sixteen years, if a male, or under eighteen years, if a female;
  3. The taking or enticing must be out of the keeping of lawful guardian of such minor or person of unsound mind,
  4. Such taking or enticing of the minor must be without the consent of the lawful guardian.

Taking or enticing

To prove the presence of taking or enticing element it is required to show some active part played by the accused.

In S Varadarajan v. State of Madras a girl who was on the verge of attaining majority, voluntarily left her father’s house, arranged to meet the accused at a certain place and went to the sub- registrar’s office, where the accused and the girl registered an agreement to marry. In this case, the accused had not  ‘taken’ her out of the lawful guardianship of her parents, as there was no active part played by the accused to persuade the girl to leave the house. It was held that no offence under this section was made out.

The word ‘entice’  embodies the idea of inducement or pursuance by offer of pleasure or some other form of allurement.   

Keeping of lawful guardian

The expression lawful guardian is much wider term than the expression legal guardian. Lawful guardian includes in its meaning not only legal guardians, but also such persons like relatives, teacher who are lawfully entrusted with care and custody of a minor.

In the State of Haryana v. Raja Ram, the court observed that the word keeping connotes the idea of charge, protection, maintenance and control. Out of keeping of lawful guardian means away from parental roof or control.

Age of Minor

As per the section, the age of a minor child at the relevant point of time should be less than 16 in respect of a male, and less than 18 in respect of a female in order to constitute an offence under this section.

In the State of Haryana v. Raja Ram, the prosecutrix was a young girl of 14 years she was constantly persuaded by one Raja Ram to leave the house and come with Jai Narain, who would give her a life full of a lot of material comforts. The question before the Supreme court was whether Raja Ram could be said to have ‘taken’ the minor girl since she willingly accompanied him.

The Supreme court held that persuasion by the accused person which creates willingness on the part of minor to be taken out of the keeping of lawful guardian would be sufficient to attract the section.

Abduction

Section-362, Indian Penal Code deals with ‘Abduction’

  • Section 362 of the Indian Penal Code states that if a person either by force compels a person or induces another person to go from any place is said to abduct such person.

Essential ingredients of this section are

  1. Forcible compulsion or inducement by deceitful means.
  2. The object with which such compulsion or inducement caused must be to make a person go from someplace.

DIFFERENCE BETWEEN KIDNAPPING AND ABDUCTION

Society very frequently uses both the terms ‘Kidnapping’ and ‘Abduction’ synonymously as if they were the same thing. The reason behind the confusion is because there’s a thin line difference between both the terms. Following are the differences between the terms ‘Kidnapping’ and ‘Abduction’, which makes both the terms different from each other:

Age

  • Kidnapping from guardianship is committed only in respect of a minor (16 years old, in case of males and 18 years old, in case of females) or a person of unsound mind.
  • Abduction may be in respect of a person of any age. Any person by force compelled or induced any other person to go from any place irrespective of the age shall be booked with abduction.

Removal From Lawful Guardianship

  • In Kidnapping, a person is taken away from the guardianship of a person who has been authorized by law to take care of the person who has yet not attained the age of majority.
  • In Abduction, concerns the person who has been abducted, there’s no involvement of a lawful guardian.

Means

  • In Kidnapping, the means used are irrelevant.
  • In Abduction, means of force, compulsion and deceitful means are used.

Consent

  • In Kidnapping, the consent of the person taken away has no significance, as the person being kidnapped is a minor, who’s incapable of giving a ‘free consent’
  • In Abduction, person condones the offence of abduction.

Continuity of crime

  • Kidnapping is not a continuing offence. It is complete, the moment a person is removed from India or from the keeping of lawful custody of the guardian.
  • Abduction is a continuing offence. It continues as long as the abducted person is removed from one place to another.

Punishment

  • Kidnapping is substantive offence, punishment for kidnapping is given in Section – 363, where a person shall be punished with imprisonment of either description of a term which may extend to seven years and in addition, he will also be liable to fine.
  • Abduction is an auxiliary act. It becomes punishable only when it is done with either of the intents specified in Section – 364 to 366.

Conclusion

So, after going through all these points, we can say though they are differences between Kidnapping and Abduction. But, both the offences have a detrimental effect upon the society. The victims of such offences goes through a traumatic experience. Though the crime itself may have ended but its manifestation in the mind of the victim remains there for a long time.

Reference

  • PSA Pillai 13th Edition
  • K D Gaur 6th Edition
  • NCRB report 2018

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