To curb the growing adverse effects of indecent material on the internet, various legal provisions have been made in India. There has always been a conflict between the speed of technology and the scope of law. It is essential to understand how our legal framework works to stop these complex crimes in the digital age and what challenges it faces.
17.1 Balance between Freedom of Expression and Social Morality
In any civilized society, maintaining a balance between freedom of expression and social morality is necessary. After the advent of the internet, stopping the spread of indecent material has become the biggest challenge before the law. In India, attempts are made to control such crimes through the Information Technology Act, POCSO, and the new Bharatiya Nyaya Sanhita. These laws are not just for punishing criminals but are created to protect victims and make the digital world safe. However, due to the global nature of cyber crimes and the advanced use of technology by criminals, many obstacles arise in the implementation of these laws. While interpreting the law, courts repeatedly examine individual freedom and public morality. In today’s era, understanding the interpretation of this legal framework has become extremely important for ordinary citizens.
17.2 Analysis of the IT Act 2000: Strengths and Weaknesses
The Information Technology Act (IT Act) 2000 is the primary law regulating the digital sector in India. Sections 67, 67A, and 67B of this Act are primarily related to the publication of obscene material. The main strength of this law is that it first gave legal recognition to digital evidence and provided for punishment for obscenity on the internet. Under Section 67A, publishing material depicting sexual acts in electronic form has been declared a non-bailable offense.
However, there are some major shortcomings in this law as well. When this law was made, the nature of social media and messaging apps was not like today. As a result, this law often falls short in gaining control over apps using encryption. Also, the definition of obscene material in this law is not sufficiently clear, leading to legal complications in distinguishing between art and obscenity. There are limitations in this law for taking action against websites operating from foreign servers. Criminals escape the clutches of the law by exploiting these weaknesses.
17.3 POCSO Act: Implementation in the Digital Domain
The POCSO Act was enacted in 2012 to protect children from sexual exploitation. In the digital age, child pornography is a horrific crime. Under the POCSO Act, not only creating obscene videos of children but also viewing or possessing them is considered a serious offense. The provisions in this law are so strict that bail is not easily granted to the accused, and the punishment is also severe.
The biggest challenge in implementing this law in the digital domain is hiding children’s identities and permanently removing such content from the internet. Often, children themselves are trapped in this web; at such times, treating them as victims rather than criminals is a challenge for the police. The National Crime Records Bureau (NCRB) continuously monitors the internet to search for child pornography material. However, due to the dark web and private channels, full implementation of POCSO becomes difficult. Nevertheless, this law stands as a strong shield for the protection of children.
17.4 Bharatiya Nyaya Sanhita: New Provisions for New Crimes
Bharat has recently replaced the old Bharatiya Penal Code (IPC) with the Bharatiya Nyaya Sanhita (BNS). In this new code, some special provisions have been made considering new crimes in the digital age. Particularly, there are clear provisions for punishment for crimes like making private photos or videos of women viral without their consent (revenge porn). Fraud and exploitation done using technology have been taken more seriously in this.
In the new law, definitions of cyberstalking and harassment have been made broader. There are provisions in this code for strict action against criminals who blackmail using obscene material. The objective of the Bharatiya Nyaya Sanhita is not just to punish but to ensure justice for the victim. Emphasis has been placed on making the process of collecting digital evidence faster and more transparent. Due to these new changes, it is expected that registering and investigating crimes related to obscene material will become easier for the police.
17.5 Judicial Precedents: How Courts Balance Rights and Regulation
Courts have given important judgments on obscene material in various cases. The Supreme Court has clarified that viewing obscene material in private life is not a crime, but viewing child pornography or publishing any type of obscene material is a crime. Courts always try to balance the freedom of expression under Article 19 and the right to live with dignity under Article 21.
In many judicial decisions, tech companies have been instructed to remove obscene content within 24 hours of receiving a complaint. Courts believe that technology companies cannot evade their responsibility by claiming to be mere platforms. In famous cases like ‘Shreya Singhal vs Union of India’, the definition of freedom on the internet was clarified. Courts consistently emphasize that digital freedom is not unlimited and should not harm others’ dignity. These precedents serve as guidelines for the implementation of future laws.
17.6 Indecent Representation of Women (Prohibition) Act: Relevance Today
The Indecent Representation of Women (Prohibition) Act, 1986 was originally created to stop obscenity in advertisements, books, and hoardings. Even in today’s internet era, the relevance of this law remains. It is used to ban material that depicts women merely as objects of consumption. Any portrayal that harms women’s dignity is a crime under this law.
Over time, amendments have been made to this law to include digital media. When indecent representation of women occurs in advertisements on OTT platforms or social media, this law is invoked. Even though we have the IT Act, this special law proves more effective for protecting women’s identity. The main objective of this law is to keep the image of women in society healthy. In today’s era, when obscenity is sold under the guise of expression, this law is extremely important for safeguarding values.
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