Author: Ravishma Sharma, Law Student from Vivekananda Institute of Professional Studies, GGSIPU, New Delhi.
ABSTRACT
In a sociologically led country like India, the stature of women is kept on a pedestal. Women are said to be treated like the female deity and goddesses in our scriptures but the reality is different. What is on paper is much more distinct than what is practised by the masses. The morale of society continues to fall and the obscene representation of women is on the rise. As a result of multiple protests by female organisations concerning how their bodies and their gender were being perceived by society and being published in various forms of media, The Indecent Representation of Woman (Prohibition) Act of 1986 was passed by the Parliament. This act aims to punish those who use derogatory means in any visible form to portray women and their bodies indecently. Earlier, sections 292 to 294 of the Indian Penal Code were the only legislation against obscene acts by persons against women. The lawmakers keeping in mind the Indian social structure, formulated specific legislation to curb the salacious portrayal of women mainly in illustrations, magazines, advertisements and publications.
With the growth and development of our culture, the need to protect the image of women n a culturally diverse society grows tenfold each day. It is imperial to keep in mind the needs of all as well as work towards the eradication of evil and instead project a proactive and empowered state of women.
Background and History of the Legislation
The Indecent Representation of Women (Prohibition) bill was introduced in the Rajya Sabha by Margaret Alva and was later passed by the Parliament on 23rd December 1986. It came into force on 2nd October 1987. This was in response to the women's movement against their depiction in society. There had been no specific legislation in the past to tackle the overgrowing issue of denigrating women before the act was passed.
The act mentions the 'indecent' publication of women in media and its forms. The definition of 'decency' varies from person to person and has evolved keeping in mind the drastic change in the psyche of a person. It is also a concept that depends on the lifestyle, upbringing and values of individuals. The Indian Law System seeks to regulate the portrayal of women in an immoral manner.
Provisions of the Indian Penal Code and Constitution of India
IPC is an act enacted during British rule in 1860. Certain provisions in the act catered towards obscene works and items produced. Sections 292 to 294 discuss the above-mentioned offence. In the past, it was a strict law, but in the year 1969, the sections were amended to fit closely to the current need of society.
Section 292-294 of the Indian Penal Code
According to section 292, the sale of any obscene books, pamphlets, paper, paintings, etc is deemed to be offensive and obscene if it "appeals to prurient interests or its effect tends to deprave and corrupt persons". The legality of this section was challenged in the case of Ranjit Udeshi vs the State of Maharashtra on sale of the book 'Lady Chatterley's Lover' by DH Lawrence. The contention of the party was that section 292 is a violation of Article 19(1)(a) of the Indian Constitution and that the book was not obscene as a whole. The section was upheld by Justice Hidayatullah in his judgement, "That you accused Nos. 1, 2, 3, 4 on or about the 12th day of December 1959 at Bombay being the partners of a book-stall named Happy Book Stall were found in possession for sale copies of an obscene book called Lady Chatterley's Lover (unexpurgated edition) which inter alia contained, obscene matter as detailed separately and attached herewith and thereby committed an offence punishable u/s 292 of the I.P. Code". The judgement also clarified the fact that Article 19(2) puts reasonable restrictions on these rights for public welfare and decency. The Supreme Court in this case used the Hicklin Test which examines whether the matter tends to "deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall."
Under the Hicklin Test, the work is viewed separately from the obscene material to check if it still violates section 292. It was said, "Where art and obscenity coexist, art must so preponderate as to throw the obscenity into a shadow or the obscenity so trivial and insignificant that it can have no effect and may be overlooked." The test was found to be no violation of Article 19. The judge concluded that the word 'Lady Chatterley's Lover' was obscene under Section 292.
Section 293 talks about the "sale, hire, circulation etc of obscene objects as mentioned in section 292, to young persons below the age of twenty years" is punishable under the act. Whereas, section 294 describes the punishment for the act of "causing annoyance via any obscene acts in public places or playing, singing, reciting obscene songs, ballads or words in public places". These provisions were treated as the sole guiding light to protect against display or inappropriate acts in or near public places. But they did not provide relief to women who were suffering from immoral depictions of their bodies in media and elsewhere. The Indecent Representation of Women (Prohibition) Act, of 1986 was passed to resolve such issues.
In the case of Chandra Rajkumari vs Police Commissioner, Hyderabad , the women's group raised the view that beauty pageants were unconstitutional and were against the public morality, decency and dignity of women and opposed the pageant 'Miss Andhra Personality' as they were allegedly involved in unethical tactics and illegal activities to mint money, which does not fall within the scope of welfare activities for the nation's women, especially when it is not certified and is not recognised in the industry as a distinguished or esteemed competition to participate in. The petitioner's arguments were-
“A beauty pageant amounts to an immoral representation of women under the Indecent Representation of Women Act 1986.
A beauty pageant in any form is unconstitutional as it is not included within the spirit of Article 21, Article 14 and Article 51A(e) of the Indian Constitution.
The basis of a beauty pageant does not align with the international conventions and United Nations resolutions on women.
Beauty pageants outrage the modesty of a woman and hence should be punishable under section 364 of the Indian Penal Code.
Beauty contests are not a fundamental right guaranteed under Chapter III of the Indian Constitution.”
The High Court of Andhra Pradesh held that it will be a matter of fact whether a beauty contest is obscene or not, depending on the facts and circumstances of each case, which should be monitored, prevented, checked, controlled, and penalised, and if possible, abolished by legislation. Sections 3 and 4 of the Indecent Representation of Women (Prohibition) Act, 1986, make the violation of Section 2 (c) of the Act completely illegal. Herein, Such a breach is penalised under Sections 6 and 7 of the Act, both in terms of offenders and abettors who directly or indirectly advocate, participate in, or aid in the holding of such contests. The court also observed that the Indecent representation of women in beauty pageants violates Articles 14, 21, and 51(a) of the Indian Constitution and the international covenants accepted by the United Nations, as well as a violation of human rights as defined by the Constitution and any law relating to the protection of human rights, and is punishable under Indian law.
Article 21 and its Correlation to the Act
Article 21 of the Indian Constitution provides every individual with the right to live a life of dignity. This fundamental right is available to all persons, including citizens and non-citizens, and cannot be suspended except in cases of emergency. The Supreme Court has broadened the definition of personal liberty to cover a wide variety of freedoms such as the right to privacy, the right to live with dignity, and the right to physical integrity. This means that people have the freedom to make their own decisions about their lives without intervention from the government or other people.
However, personal liberty is not an absolute right and can be restricted in certain circumstances. In the case of Maneka Gandhi v Union of India , it was decided that the right to life is not limited to physical survival alone, but also includes the right to live with dignity as a human being. This means that individuals have the right to be treated with respect and given opportunities to live a meaningful life. The term "human dignity" refers to the inherent value and worth of every person, regardless of their social status or circumstances.
In the case of Ajay Goswami vs Union of India , a writ petition was filed in the Supreme Court against Article 19(1)(a) pleading that no sexually exploitative content should be published in the press since it is detrimental to children. He went on to say that the right to free expression should not be permitted to override the right to educate and safeguard children. He believed that such items in the papers would affect the child's mental health and fill the child's mind with negative beliefs. He pleaded that publications be given precise rules on what they could and could not print. Furthermore, they must ensure that their content is appropriate for children and that no content is inappropriate for children unless the supervision of a teacher or a parent is required. Newspapers containing such information must be packaged separately and have a disclaimer on the first page, allowing parents to decide whether or not to purchase the paper or allow their children to read it.
In its judgement, SC held that newspaper agencies are already forbidden from printing obscene materials under Section 292 of the IPC. Furthermore, it ruled that there was insufficient evidence presented to justify restricting the freedom of speech and expression guaranteed by Article 19 of the Constitution. In response to the topic of imposing a blanket prohibition, the court stated that in such a case, the newspaper would only contain items that would appeal to children and not adults. Control regulations are already in place, hence the petition was dismissed. The court held that nudity alone does not make material legally obscene. The above judgement shows that the right to personal liberty is a crucial aspect of democracy and human rights. It assures that people can follow their aims and objectives without fear of arbitrary interference.
PRESENT STATUS OF THE LEGISLATION
The Indecent Representation of Women (Prohibition) Act of 1986 was amended in 2021 to reinforce its provisions and make it more effective in preventing women's objectification and sexualization. The revised Act broadens the definition of "indecent representation" to encompass any disparaging, humiliating, or demeaning visual image of a woman. The use of any electronic communication to publish or transmit such material is likewise included.
The Act also introduces stricter penalties for offenders, with imprisonment of up to five years and a fine of up to Rs. 10 lakhs for first-time offenders. Repeat offenders can face imprisonment of up to seven years and a fine of up to Rs. 20 lakhs.
Furthermore, the amended Act also includes provisions for the establishment of an Inter-Ministerial Committee to review and monitor the implementation of the Act.
BLUEPRINT OF THE ACT
The act was passed by the Parliament in the thirty-seventh year of Independence. It aims to prohibit any indecent representation of women in India utilizing advertisements, writings, paintings, figures, publications or any other form. The jurisdiction of the act extends to the whole of India, including Jammu and Kashmir. The act aims to prevent the objectification and sexualization of women in media and other visual representations. The act also seeks to promote gender equality and protect the dignity of women.
PROVISIONS OF THE ACT
Section 2 of the Act defines various terms used in the Act. Some of the definitions are-
Advertisement, includes any form of notice, wrapper, label, document or any visual representation through light, smoke or gas.
Indecent representation of women is defined as the portrayal of women, their form or body or part of it in a manner that is derogatory and inappropriate and corrupts or injures morality or public order.
Label, means any written, marked, printed matter affixed upon a package.
Distribution, includes the distribution of samples free or paid.
Section 4 of the Act is a restrictive provision that prohibits the hiring, selling, and circulation of books, paper, writings, paintings, drawings etc that are indecent or obscenely represent women. These also have certain exceptions such as material published in good faith for public interest, education or religious purposes. It also includes sculptures, paintings or idols that have archaeological or religious value.
Section 5 grants powers to an officer authorized by State Government under jurisdictions. These powers include the search of premises at any reasonable time, seizure of any material that contravenes the Act, and examination of records and documents. This provision comes with certain exceptions as well given in the Proviso of the section. These include restrictions on entering a private dwelling without warrant, and the duty of the officer to inform a magistrate of jurisdiction.
Section 6 of the Act lists various legal penalties and punishments for individuals who act in contravention of the rules laid down in the Act.
Section 7 deals with the offence committed by a company and that the person in position at the time of commission is responsible for the act committed.
Section 9 of the Act safeguards the State and Central Government from suit when they acted in good faith and public interest.
Section 10 of the Act grants powers to the Central Government to make rules and carry out the provision of the act.
LOOPHOLES IN THE ACT
Despite the existence of laws and the implementation of severe penalties for conduct that violate the provisions of the Act, agencies and individuals uncover flaws in the Act and exploit them for their gain. There have been instances where people create and distribute pornographic material featuring women under the guise of artistic expression or freedom of speech. It was seen in the case Ajay Goswami vs Union of India that the standard for judging whether a material is "obscene" is that from the view of a common prudent man and not an "out of ordinary hypersensitive man". Keeping this in mind, several cases of indecent representation of women have been dismissed because it does not meet the level of obscene.
Many advertising firms employ women as a tactic to attract a larger customer base. The representation of women is done in such a way that the majority of female models are exploited. The use of women to promote a concept or product is becoming more common. Women are employed as a persuasive tool in television advertising. Women make the bulk of purchasing decisions in many cultures, making them a significant target for these advertisers. In the case of manga, and how most women are depicted, most manga contains indecent representations of women, such as sexualized or objectified depictions of women, or illustrations of sexual violence against women, which should potentially be considered obscene under the Act. Creators abuse the exception in Section 4 of the Act by identifying their work as "art" or "literature". As a result, not all manga is necessarily obscene under the Act.
In the case of United States of America vs Christopher Handley , Handley pleaded guilty to possessing obscene manga and was sentenced to six months in prison. The case raised questions about the scope of the PROTECT Act, which criminalizes the possession of certain types of pornography, including cartoons and drawings depicting minors engaged in sexual activity. Here, the manga contained material that indecently displayed minor children.
Although the Indecent Representation of Women (Prohibition) Act exists and enforces penalties, there is a lack of awareness and knowledge about it in the country. This creates a gap between the act and its goal. Some suggestions for improving its execution include:
Increasing the general public's and media outlets' understanding of the Act
More resources for law enforcement authorities to enforce the Act effectively
Making certain that the consequences for breaking the Act are severe and efficiently enforced
Encourage media outlets to promote positive and diverse female representations
Encouraging advertisers to refrain from using sexualized images of women to sell goods or services.
CONCLUSION
Lastly, this study addressed the complicated legal concerns surrounding obscene displays of women. A thorough examination of relevant case law, statutes, and scholarly opinion revealed the intricacies of the Act. While there are undoubtedly ongoing controversies and uncertainty in this area of law, the findings of this study can assist in shaping future legal advancements and policy decisions. Finally, this work will help to create a more sophisticated and just judicial system.
The analysis has established the act's foundation and implementation. These discoveries have far-reaching ramifications for legal practitioners, policymakers, and academics alike. In the future, it will be critical to continue looking into these concerns and to create more powerful legal structures capable of addressing the challenges created by the Indecent Representation of Women Act. Finally, the goal must be to ensure that the law promotes justice and fairness for all.
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