The Indian society has not been always conducive to the growth of woman and she had to face hurdles at every step of her life, though legislations were being introduced for improving the position of women. In 1980’s there was increasing cases of immoral representation of woman and to curb the problem, a bill was introduced to meet the needs of society.
Legislative intent of bill
The bill was initiated by Shrimati Margaret Alva and the bill was moved in Rajya to constrain the immoral representation of women in any form i.e advertisements, writings, figures, paintings or for matters that are connected with it and the same was the legislative intent of the bill. The term ‘indecent representation of women’ has been defined to mean the depiction in any manner of the figure of a women, her form or body or any part thereof in such a way as to have the effect of being indecent or derogatory to or denigrating woman or is likely to deprave, corrupt or injure the public morality or morals. The reason of introducing such a bill was to prohibit the representation of women in indecent form in books, media, publications etc. Though we have provisions dealing with obscenity in sections 294, 292 and 293 of the Indian Penal Code, we can see the crimes being reported at an alarming rate. Despite the existence of these provisions in the penal law, the need was observed for a separate Act to tackle the problem indecent representation. Though women are preached as goddess, we can see their sexual identity being used to attract viewers. Though the provisions in IPC do cover obscenity in their ambit but the protection offered under its aegis is not sufficient for the vilification of women. There may be cases where the intention to denigrate may be absent but the cause of action arises in them. Further, Margaret Alva, clarifying the intent was never to curb the freedom of expression but the need is to impose some restrictions on the material that is not bona fide but against the public policy also, providing for exemptions on any visual objects in the interest of art, science or literature. Some people even consider western culture responsible for women being indecently represented and projected.[1]
The Act prevents publication, or be a cause in publication or organise or be a part of exhibition or publication of any endorsement that embodies immoral representation women in any mode. However after the act came into existence, cases were reported where the advertisements, competitions were challenged in the court of the law and the Court went further to lay down the test of obscenity in Ajay Goswami v. Union of India[2] :
Test of obscenity:
This Court has time and again dealt with the issue of obscenity and laid down law after considering the right of freedom and expression enshrined in Article 19(1)(a) of the Constitution of India, its purport and intent, and laid down the broad principles to determine/judge obscenity. In a recent judgment Director General, Directorate General of Doordarshan & Ors. Vs. Anand Patwardhan & Anr.[3](Dr. AR. Lakshmanan and L.S. Panta, JJ) This Court has referred to the Hicklin test[4] laid down in and observed:
“(a) whether the average person applying contemporary community standards would find that the work, taken as a whole appeal to the prurient interest
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically, defined by the applicable state law,
(c) whether the work taken as a whole, lacks serious literary, artistic, political or scientific value.”[5]
The court went ahead and applied the principles laid down in Samresh Bose v. Amal Mitra this Court observed:
“In appropriate cases, the court, for eliminating any subjective element or personal preference which may remain hidden in the subconscious mind and may unconsciously affect a proper objective assessment, may draw upon the evidence on record and also consider the views expressed by reputed or recognized authors of literature on such questions as if there by any of his own consideration and satisfaction to enable the court to discharge the duty of making a proper assessment.”[6]
Further the court also considered the doctrine of Clear the present danger that was formulated in S.Ragarajan v. P. Jagjivam Ram, while interpreting Article 19(2), this Court borrowed from the American test of clear and present danger and observed:
“the commitment to freedom demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have a proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably like the equivalent of a ‘spark in a power keg’.”[7]
The standard test that has been laid is that of man of ordinary prudence rather than choosing the perspective of a hypersensitive man and the courts have always laid down that the right of one citizen is duty of another thus right to freedom of speech and expression can’t be used to promote indecent representation of women.
Though the forms of indecent representation were discussed by Courts before coming into existence of this act was discussed and the Apex Court wanted to incorporate the changes that have been in society, in Shri Chandrakant Kalyandas Kakodkar vs. The State of Maharashtra and Others,. This Court has held:
“In early English writings authors wrote only with unmarried girls in view but society has changed since then to allow litterateurs and artists to give expression to their ideas, emotions and objectives with full freedom except that is should not fall within the definition of ‘obscene’ having regard to the standards of contemporary society in which it is read. The standards of contemporary society in India are also fast changing. The adults and adolescents have available to them a large number of classics, novels, stories and pieces of literature which have a content of sex, love and romance.[8] As observed in Udeshi’s case[9] if a reference to sex by itself is considered obscene, no books can be sold except those which are purely religious. In the field of art and cinema also the adolescent is shown situations which even a quarter of a century ago would be considered derogatory to public morality, but having regard to changed conditions are more taken for granted without in anyway tending to debase or debauch the mind. What we have to see is that whether a class, not an isolated case, into whose hands the book, article or story falls suffer in their moral outlook or become depraved by reading it or might have impure and lecherous thought aroused in their minds. The charge of obscenity must, therefore, be judged from this aspect“
However after 25 years since the Act came into existence and with the advent of technology the need was realised to bring amendments to the bill as the old definitions were not enough to punish the criminals who used technology to perpetrate crime and an amendment bill was introduced in Rajya Sabha in 2012 incorporate the changes to curb the increasing crime.
Amendment bill, 2012
The Standing Committee on Human Resource Development submitted its report on the Indecent Representation of Women (Prohibition) Amendment Bill, 2012. The Bill was introduced in the Rajya Sabha on December 13, 2012 and seeks to amend the Indecent Representation of Women (Prohibition) Act, 1986, which prohibits indecent representation of women through advertisements or publications, writings and paintings (primarily the print media).
The Indecent Representation of Women (Prohibition) Amendment Bill, 2012 sought to widen the ambit of the existing law to include the electronic content and audio-visual media and, imposing strict penalties which would prevent the further infringement of the law. The Bill proposed to improve the execution mechanism under the law by giving the authority to police officers not below the rank of Inspector to enter any household or institution to carry out seizure and search of any material, if there was presence of sufficient reason to believe that an act in contravention to the Act has been or is being committed.
Further the major recommendations were submitted by the Standing Committee were[10] :
- Common terms in all Acts concerning indecent representation of women should be defined in a similar fashion and to remove contradiction and confusion.
- Society in general and women specifically need to be made aware of the adverse impact of the indecent representation of women. The National Commission of Women needs to organize awareness generation camps/ programmes for the film fraternity, advertisers, writers, publishers, internet and mobile service providers, etc. in order to stop the depiction of women in an obscene or objectionable way. [11]
- The Protection of Children from Sexual Offences Bill, 2011 deals with sexual offences against children and having a child-friendly procedure for investigation and handling of child abuse cases. But the issue of indecent representation of children is not dealt with in this legislation. The Ministry could focus on this area of concern and have suitable mechanisms under the relevant law to deal with cases of indecent representation of children. [12]
- Live shows indecently representing women in any manner whether through song, dance, comedy, etc. where large number of public gather together to enjoy the show need to be curbed. Such violations are dealt with under section 294 of IPC which provides lesser punishment. The quantum of penalty under IPC and the Indecent Representation of Women (Prohibition) Act has to be at par in both the situations.
Though the Amendment Act, 2012 was passed by both Rajya Sabha and Lok Sabha and was able to incorporate the changes according to the needs of the society, however for further effective implementation all the authorities need to work collectively.
“The views of the authors are personal“
Reference:
[1] https://rsdebate.nic.in/bitstream/123456789/321151/1/PD_140_12111986_7_p194_p280_20.pdf
[2] Writ Petition (civil) 384 of 2005
[3] JT 2006(8) SC 255
[4] 1868-3 QB 360
[5] Writ Petition (civil) 384 of 2005
[6] (1985) 4 SCC 289
[7] 1989 SCR (2) 204
[8] 1969 (2) SCC 687
[9] Ranjit D. Udeshi v. State of Maharashtra. AIR 1965 SC
[10] http://164.100.47.193/Refinput/New_Reference_Notes/English/The_indecent_representation.pdf
[11] Ibid
[12] Ibid
