Pornography over cyber space

The right to free speech is a fundamental right given to every citizen of India but subjected to certain reasonable restrictions. Article 19 (2) lays down eight such restrictions which curtail the freedom of speech and expression, there include restrictions in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
The freedom of speech over the internet is governed by the same restrictions as the right of speech protected under Article 19(1)(a) is subjected to along with a few more under the Information Technology Act,2000. Spreading of pornographic material over the internet is subjected to the restrictions imposed on the ground of obscenity and are also specific offences under the provisions of the Information Technology Act.
Section 67 of the Act lays down the punishment for publishing or transmitting sexually explicit material. The section states that:Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.
Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.

 Section 67 A provides that: Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.

Section 67 B deals specifically with child pornography. It states Whoever,–

(a) publishes or transmits or causes to be published or transmitted material in any electronic form which depicts children engaged in sexually explicit act or conduct; or
(b) creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner; or
(c) cultivates, entices or induces children to online relationship with one or more children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource; or
(d) facilitates abusing children online, or

(e) records in any electronic form own abuse or that of others pertaining to sexually explicit act with children,
shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees:
Provided that provisions of section 67, section 67A and this section does not extend to any book, pamphlet, paper, writing, drawing, painting representation or figure in electronic form–
(i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting representation or figure is the interest of science, literature, art or learning or other objects of general concern; or

(ii) which is kept or used for bona fide heritage or religious purposes.
Under the provisions of Section 67 B, inducing or coercing children into online relationship or sharing material containing such texts, I'm ages or videos would amount to an offence. Sharing online videos depicting children in sexually explicit manner on WhatsApp or other electronic platforms would comprise of an offence under the section.

Freedom of press and defamation

The Supreme Court has recently observed that the every instance of wrong reporting by the journalists does not amount to defamation. The Court observed that there is no vicarious liability of the heads of a news channel for the wrong publication of a news items by their associates. The Court agreed with the Patna High Court which held that there is no statutory provision for the vicarious liability for the act committed by the associates.
The press is responsible for the correct publication of facts. Its reporting needs to be accurate and diligent. Defamation is both a crime as well as a tort. While a statement off fact is a defence under Section 499 of the IPC, a wrongful report which injures a person's reputation remains both a crime as well as a civil wrong. While the freedom of press is important as it remains the fourth pillar of democracy, it does call out for responsible reporting.

National anthem

The Supreme Court has ruled that its previous order of making the playing the national anthem in cinema halls mandatory before the screening of films should be taken as directory and not compulsory in nature. The Court observed that it did not expect that the said direction to instil patriotism would lead to vigilantes and that would force aged and even disabled to be forced to stand up during the playing of the national anthem and subsequent violence.
The Apex Court observed that the term 'shall' in its previous order should be interpreted as may' and the cinema halls are only directed to play the national anthem but if there choose to play it, then people are required to show respect to it by standing up. However, disabled people cannot be forced to stand during the playing of the national anthem as observed by the order dated April 18, 2017. The central government had suggested to the Court to either pass an order for status quo restoring the position as existed prior to November 30, 2016 or the term 'shall' be replaced by 'may', until the issue is finally decided.

Article 51 A of the Constitution of India deals wth the fundamental duties. Clause (a) states that 'It shall be the duty of every citizen of India (a) to abide by the Constitution and respect its ideals and institutions, the national Flag and the National Anthem'.

Every citizen is required to show respect to the national insignia but that does not mean that it leads to violence in the name of nationalism and patriotism. Section 3 of the Prevention of Insults to National Honour Act, 1971, provides that: Whoever intentionally prevents the singing of the Indian National Anthem or causes disturbances to any assembly engaged in such singing shall be punished with imprisonment for a term, which may extend to three years, or with fine, or with both. The Act does not define what amounts to disrespect of the national anthem. 

The bench remarked that all citizens of India and all persons representing India are duty bound to show utmost respect to the national anthem.

 

Adultery

Section 497 of the Indian Penal Code, 1860, deals with the crime of adultery. The Section provides that when a man enters into a sexual relationship with a married woman it amounts to adultery. While the Section punishes the man who enters into such as relationship, the woman is not punished for the same, neither as an offender nor as an abettor.
Section 497 states that: Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.
In the case of Yusuf Abdul Aziz v State of Bombay (1954), the Supreme Court in a five judge bench, held the given provision to be valid on the ground that Article 15(3) of the Constitution permits special laws for women and children and hence is not gender discriminatory.

Women in territorial army

The Delhi High Court has recently ruled that women are eligible for employment in the territorial army. The Court observed that the government advertisement calling for only male candidates is discriminatory and women are also eligible for joining the territorial army. The Court observed that the restrictions on enrollment of women in the territorial army contained in the advertisement are neither reasonable nor rational and are to. be quashed.
Section 6 of the Indian Territorial Army Act, 1948, lays the eligibility for employment. It states that: "Any person who is a citizen of India may offer himself for enrolment in the Territorial Army, and may, if he satisfies the prescribed conditions, be enrolled for such period and subject to such conditions as may be prescribed."
The Court observed that the term 'any person' used in Section 6 of the Act includes both male and female and women cannot be discriminated against on the basis of gender. The Court observed that the advertisement to the extent that it excludes women from appointment to the territorial army is ultra vires Articles 14, 15, 16 and 19(1)(g) of the Constitution of India and hereby quashed

 

Triple talaq law

After the Supreme Court declared the practice of triple talaq or pronouncing talaq inboxed a single sitting as void, the Parliament passed the Muslim Women (Protection of Rights on Marriage)Act or the Triple Talaq Act. Under the provisions of this Act, triple talaq is void and illegal and the marriage subsists even after its pronouncement. If a husband pronounces irrevocable triple talaq or talaq in a single sitting, he will be punished with a term upto 3 years and fine. The wife is entitled to get maintenance for herself and her children. The offence is cognizable and non-bailable, hence, the police has a right to Arrest and investigate even if the wife does not make a complaint.
The Act in its present form is open to great misuse. Firstly, Muslim marriage is a civil contract, and a breach of it cannot amount to a criminal offence. Again, if a husband is imprisoned for pronouncing triple talaq, then it closes all doors of reconciliation between the couple and the marriage would subsequently end. Thirdly, in families where the husband is the sole breadwinner, imprisonment would lead to the wife and children without any source of income as he cannot earn and provide for them. Fourthly, there are chances that any person with malafide intent can complain against the husband and land him in prison and thereby break a family.
The Act does not give Muslim women any new rights. Section 125 of the Code of Criminal Procedure, 1973, already has provisions for the maintenance of wife and children. The Act is subject to grave misuse and does not protect the interests of Muslim women, rather, it can add to her woes.

Marriage cannot denude a woman of her civil rights

Recently, while hearing the case of a Parsi woman who was denied the right to perform her parents' last rites because she had married a Hindu, the Supreme Court while overruling the order of Bombay High Court, observed that marriage does not strips a woman of her civil rights. The Court observed that the religion of the wife does not merge into that of her husband after marriage. Marriage does not mean that a woman mortgages herself to her husband. Her religion does not merge with that of her husband, only she, on her own volition can give up her religion. The Court observed that when a man who marries outside of his religion is not denied any civil rights then the same should be applicable for the woman as well. The Court also observed that 'the Special Marriage Act was enacted so that a man and a woman professing different faiths can marry and retain their religious identity after marriage. There is no question of merger of woman's religion with that of her husband's. Only she on her own volition can give up her religion..' The Supreme Court in the instant case told the Valsad Zoroastrian Trust to shun the rigidity and understand the emotions of a child towards her parents and reconsider its decision.