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.. Petitioners
Versus
..Respondents
Applicant
That the interveners are filing this application seeking indulgence of this
Honble Court for permitting them to intervene in the above mentioned Writ
Petition (Civil) No.177 of 2013 where the Petitioner has in the interest of
public challenged the Section 66, 67,69,71,72,75,79,80 and 85 of the
3.
i.
The object and aims of the applicant association society are as follows:
To uphold and safeguard constitutional rights of the citizens and work for the
preservation of the rule of law.
ii.
iii.
iv.
To support, protect and uphold the status, interest, prestige and dignity of men
& women lawyers and to secure for them just rights, privileges and status.
v.
vi.
To further the diffusion of knowledge of the laws and in particular laws 'relating
to women and children.
vii.
viii.
ix.
x.
xi.
xii.
xiii.
objectives.
xiv.
To undertake such work as may be decided upon by the association from time to
time.
4.
5.
That the instant application has been filed on the issue that there has been
a constant rise of pornography in the country today. Pornography corrupts
the mind of the young generation today, who tend to commit crime against
women/girls/children. Crime against women has been increasing at a very
high rate in the country today. And it is an important matter of concern for
the country today.
6.
That applicant herein states that the easy availability of porn through
internet,C.D.,porn videos/porn clippings are the root cause of most of the
offences as well as crime against women/girls/children. The applicant herein
has sought formulation of National Policy on the issue of Pornography and to
frame guidelines and strict measures to curb the growing of issue of child
pornography .
7.
The applicant society wishes to intervene in the present petition for the
following reasons:-
a) The issue of pornography and the pornographic content has serious implications
on human mind and behavior. Studies have shown that pornography leads to
sexual crimes, violent sexual behavior, aggression, frustration and depravity of
mind.
b) Now a days having porn content on mobiles, laptops, computer and watching the
same has become very common.
c) Pornography causes harm during its production, distribution and consumption.
Pornography is the root cause to the major crimes in the world, Human
Trafficking, Distribution of porn CDS and sexual offences. It affects the society in
a gruesome manner. It is for these reasons; many countries in the world totally
prohibit it. The Applicant has compiled study research materials on legal status
have mobiles with them they have easy access to porn and sexually explicit
content on the mobile phone. This in turn increasing sexual crimes and
victimization among minor. One such report have been covered by NDTV
published on epaper dated 12.9.2015 where an engineering student in
Hyderabad allegedly stalked more then 200 teen girls online, mainly through
Facebook and blackmailed them that their naked pictures would be displayed in
social media site. A true copy of the newspaper coverage dated 12.9.2015 is
annexed herein as Annexure A/3.
h) That a number of studies have been conducted worldwide on the ill-effects of
pornography, not only on the individual but on his family life, married life,
victimization of women and children.
i) That the issue of Pornography has national dimension as the porn industry is
now taken shape of big profit making industry. There is uncontrolled display of
porn now a days.
j) That due to the easy access to porn these days, even the bus drivers and
conductors of school buses, Cabs, taxis have porn clippings/videos on their
mobile phones. As these are publicly shared without compunction, even the
children would be exposed to this, critically affecting their emotional and
psychological well-being.It is a serious matter of concern and such type of
behaviour cannot be tolerated. It has become very common these days for the
drivers, conductors/cleaners to take advantage of innocent children, induce them
to watch porn on their mobiles and indulge in molestation and sodomization of
the child. One such report has been covered by NDTV wherein a bus driver
allegedly molested a school girl published in epaper dated 15.4.2015.
A true copy of the News report dated 15.4.2015 is annexed herewith as
Annexure A/4.
8) That the Information Technology Act,2000 is primarily meant to be a legislation
to promote e- commerce. It is not been very effective in dealing with several
emerging crimes like cyber, defamation, stalking and so on. These crimes are
associated crimes of pornography.
9) That the existing legal frame work is inadequate to tackle the menace of porn.
The existing legal provisions are:-
Section 292 - Sale, etc. of obscene books, etc. :[(1) For the purposes of sub-section (2), a book, pamphlet, paper, writing, drawing,
painting representation, figure or any other object, shall be deemed to be obscene if it
is lascivious or appeals to the prurient interest or if its effect, or (where it comprises
two or more distinct items) the effect of any one of its items, is taken as a whole, 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.]
into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation
makes produces or has in his possession any obscene book, pamphlet, paper, drawing,
Section 293- Sale, etc., of obscene objects to young person.Whoever sells, lets to
hire, distributes, exhibits or circulates to any person under the age of twenty years any
such obscene object as is referred to in the last preceding section, or offers or attempts
so to do, shall be punished 2[on first conviction with imprisonment of either description
for a term which may extend to three years, and with fine which may extend to two
thousand rupees, and, in the event of a 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 five thousand rupees].
(3) The subscriber or intermediary or any person in-charge of the computer resource
shall, when called upon by any agency referred to in sub-section (1), extend all facilities
and technical assistance to(a) provide access to or secure access to the computer resource generating,
transmitting, receiving or storing such information; or
(b) intercept, monitor, or decrypt the information, as the case may be; or
(c) provide information stored in computer resource.
(4) The subscriber or intermediary or any person who fails to assist the agency referred
to in sub-section (3) shall be punished with imprisonment for a term which may extend
to seven years and shall also be liable to fine.
Sec 71- Penalty for misrepresentation. -Whoever makes any misrepresentation to, or
suppresses any material fact from the Controller or the Certifying Authority for
obtaining any licence or 89 [Electronic Signature] Certificate, as the case may be, shall
be punished with imprisonment for a term which may extend to two years, or with fine
which may extend to one lakh rupees, or with both.
Sec 72- Penalty for breach of confidentiality and privacy.-Save as otherwise provided
in this Act or any other law for the time being in force, if any person who, in pursuance
of any of the powers conferred under this Act, rules or regulations made thereunder,
has secured access to any electronic record, book, register, correspondence,
information, document or other material without the consent of the person concerned
discloses such electronic record, book, register, correspondence, information, document
or other material to any other person shall be punished with imprisonment for a term
which may extend to two years, or with fine which may extend to one lakh rupees, or
with both.
Sec 75- Act to apply for offence or contravention committed outside India.-
(1) Subject to the provisions of sub-section (2), the provisions of this Act shall apply
also to any offence or contravention committed outside India by any person irrespective
of his nationality.
(2) For the purposes of sub-section (1), this Act shall apply to an offence or
contravention committed outside India by any person if the act or conduct constituting
the offence or contravention involves a computer, computer system or computer
network located in India.
Sec 79 Exemption from liability of intermediary in certain cases.
(1) Notwithstanding anything contained in any law for the time being in force but
subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable
for any third party information, data, or communication link made available or hosted
by him.
(2) The provisions of sub-section (1) shall apply if(a) the function of the intermediary is limited to providing access to a communication
system over which information made available by third parties is transmitted or
temporarily stored or hosted; or
(b) the intermediary does not(i) initiate the transmission,
(ii) select the receiver of the transmission, and
(iii) select or modify the information contained in the transmission;
(c) the intermediary observes due diligence while discharging his duties under this Act
and also observes such other guidelines as the Central Government may prescribe in
this behalf.
(3) The provisions of sub-section (1) shall not apply if(a) the intermediary has conspired or abetted or aided or induced, whether by threats
or promise or othorise in the commission of the unlawful act;
(b) upon receiving actual knowledge, or on being notified by the appropriate
Government or its agency that any information, data or communication link residing in
or connected to a computer resource, controlled by the intermediary is being used to
commit the unlawful act, the intermediary fails to expeditiously remove or disable
access to that material on that resource without vitiating the evidence in any manner.
Sec 80- Power of police officer and other officers to enter, search, etc.(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of
1974), any police officer, not below the rank of a Deputy Superintendent of Police, or
any other officer of the Central Government or a State Government authorised by the
Central Government in this behalf may enter any public place and search and arrest
without warrant any person found therein who is reasonably suspected of having
committed or of committing or of being about to commit any offence under this Act.
Explanation.-For the purposes of this sub-section, the expression "public place" includes
any public conveyance, any hotel, any shop or any other place intended for use by, or
accessible to the public.
(2) Where any person is arrested under sub-section (1) by an officer other than a police
officer, such officer shall, without unnecessary delay, take or send the person arrested
before a magistrate having jurisdiction in the case or before the officer-in-charge of a
police station.
(3) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), shall, subject to
the provisions of this section, apply, so far as may be, in relation to any entry, search or
arrest, made under this section.
Sec 85- Offences by companies.(1) Where a person committing a contravention of any of the provisions of this Act or of
any rule, direction or order made thereunder is a company, every person who, at the
time the contravention was committed, was in charge of, and was responsible to, the
company for the conduct of business of the company as well as the company, shall be
guilty of the contravention and shall be liable to be proceeded against and punished
accordingly: Provided that nothing contained in this sub-section shall render any such
person liable to punishment if he proves that the contravention took place without his
knowledge or that he exercised all due diligence to prevent such contravention.
(b) any postal article having thereon, or on the cover thereof, any words, marks or
designs of an indecent, obscene, seditious, scurrilous, threatening or grossly offensive
character.
THE INDECENT REPRESENTATION OF WOMEN (PROHIBITION) ACT, 1986
Sec 3- Prohibition of advertisements containing indecent representation of women.
No person shall publish, or cause to be published, or arrange or take part in the
publication or exhibition of, any advertisement which contains indecent representation
of women in any form.
(i) any ancient monument within the meaning of the Ancient Monument and
Archaeological Sites and Remains Act, 1958 (24 of 1958); or
(ii) any temple, or on any car used for the conveyance of idols, or kept or used for any
religious purpose;
(c) any film in respect of which the provisions of Part II of the Cinematograph Act, 1952
(37 of 1952), will be applicable.
b.
c.
States Parties undertake to protect the child from all forms of sexual exploitation and
sexual abuse.
For these purposes, States Parties shall in particular take all appropriate national,
bilateral and multilateral measures to prevent:
(a) The inducement or coercion of a child to engage in any unlawful sexual activity;
(b) The exploitative use of children in prostitution or other unlawful sexual practices;
(c) The exploitative use of children in pornographic performances and materials.
Article 35
States Parties shall take all appropriate national, bilateral and multilateral measures to
prevent the abduction of, the sale of or traffic in children for any purpose or in any
form.
Article 36
States Parties shall protect the child against all other forms of exploitation prejudicial to
any aspects of the child's welfare.
Article 37
States Parties shall ensure that:
(a) No child shall be subjected to torture or other cruel, inhuman or degrading
treatment or punishment. Neither capital punishment nor life imprisonment without
possibility of release shall be imposed for offences committed by persons below
eighteen years of age;
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest,
detention or imprisonment of a child shall be in conformity with the law and shall be
used only as a measure of last resort and for the shortest appropriate period of time;
(c) Every child deprived of liberty shall be treated with humanity and respect for the
inherent dignity of the human person, and in a manner which takes into account the
needs of persons of his or her age.In particular, every child deprived of liberty shall be
separated from adults unless it is considered in the child's best interest not to do so and
shall have the right to maintain contact with his or her family through correspondence
and visits, save in exceptional circumstances;
(d) Every child deprived of his or her liberty shall have the right to prompt access to
legal and other appropriate assistance, as well as the right to challenge the legality of
the deprivation of his or her liberty before a court or other competent, independent and
impartial authority, and to a prompt decision on any such action.
10) That the Applicant Association would be assisting the Honble Court with many
more studies if the applicant association is allowed to be intervened.
11) That with the view to assist the Honble Court for proper perspective in the future
and also to protect the interest of large numbers of children/women who can become
victims, the Applicant Association desires to be party in the aforesaid petition for the
betterment and safety of the women and children in the country today.
12) That the Applicant Association is a proper and necessary party for the effective
adjudication of the present writ petition.
13) That in order to ensure that the issue is addressed in an effective manner, it is
necessary to allow the application and permit the applicant association to assist the
Honble Court.
14) That it is respectfully submitted that the present applicant have annexed certain
research materials on issue of this subject and some press and media news reporting
on the issue of child pornography .
15) That the present application is bonafide and hence needs to be considered in the
interest of justice.
PRAYER
The petitioners therefore, respectfully pray that this Honble Court may be pleased to:
a)
permit the aapplicant Association to intervene and support the Petitioner in the
present W.P.(CIVIL) No.177of 2013.
b)
c)
d)
to issue direction to all the schools in India to install jammers in the Buses to
prevent access of pornographic sites on the cell phones by the Driver or anyone
who is in charge of the children in the Buses.
g)
h)
pass such other and further order(s) as may deem fit and proper in the facts and
circumstances of the present case.
AND FOR THE ABOVE ACT OF KINDNESS THE PETITIONERS AS DUTY BOUND SHALL
EVER PRAY.