Art and Indian Copyright Law: A Statutory Reading

A look at how the Indian Copyright Act, 1957, as amended in 2012, interacts with art (other than films and sound recordings), and, in particular, with Indian art. The first part of this text comprises a feminist and post-colonial reading of the Indian copyright statute while later parts focus on interpreting the provisions of the statute in relation to art.

12 December 2015

The Legality of Publishing Explicit Content

...explicit content other than porn, that is.

Reams have been written about the misadventures of the Central Board of Film Certification or CBFC, popularly called the Censor Board. Even focussing on just the last few weeks, the CBFC has been in the news for everything from its attempts to rein in the depiction of sex life of James Bond (which, as many wryly commented at the time, not even British Intelligence has ever attempted to do) to, most recently, its having the images of Hindu Goddesses blurred in the film Angry Indian Goddesses.

The frequency with which the CBFC steps in to 'clean up' content in films on a variety of grounds would be astonishing if it were not for the fact that it does so so often that its doing so no longer seems surprising in the least. The problem, if that's how one sees it, has to do with the personal perceptions of the members of the CBFC in regard to what sort of content is acceptable. However, the problem doesn't stop there, and it isn't restricted to the CBFC or to films.

Content accessible in India is governed by a number of often vague laws and, amongst them, are the guidelines which govern content broadcast either via traditional means or published online. All of the content restrictions in these guidelines seem to mirror each other: the 2011 Intermediary Guidelines, the 1994 Rules 6 and 7 of the Cable Television Networks Rules, the Guidelines for Certification of Films for Public Exhibition under the 1952 Cinematograph Act, and the Guidelines of the Advertising Standards Council of India. And each one of these guidelines is ambiguous; in practice, this means that the guidelines lend themselves to be interpreted in line with the beliefs of their interpreters.

When it comes to explicit content, courts have generally read the various laws which govern content in a manner which supports free speech. In theory, under current law, as long as the inclusion of explicit content can be 'justified', it is permissible. Justification generally requires explicit content to have some discernible nexus with the plot when it comes to general entertainment content; case law and subordinate laws indicate that it may be permissible if it serves to highlight social ills, and suggest that such content should not be entirely gratuitous, that it should not appeal to prurient interests, that it should not denigrate women, and that it should not glorify violence. As such, it would appear that there is no absolute prohibition on the broadcast or publication of explicit content.

Then again, the Programme Code for television content, for example, begins with the spectacularly vague requirement that content should not 'offend good taste or decency'. What would offend good taste or decency is anyone's guess although what could potentially do so in practice effectively includes any explicit content which does not have a clear and convincing justification. In addition to this, although older legal provisions such as those in the Indian Penal Code place restrictions on content which 'appeals to the prurient interest' or has the effect of tending 'to deprave and corrupt' persons, newer provisions such as those in the 2000 Information Technology Act may, without concerning themselves with effects, simply restrict the publication of sexually explicit content which cannot be justified on religious grounds or on grounds of being for the public good.

India is, of course, a country not known for shying away from the explicit through its long history. Each attempt at suppressing explicit content is almost invariably met with cries of, "But this is the land of the Kama Sutra and Khajuraho." Never mind that it's only a fraction of the Kama Sutra which deals with the explicit tied in, as it is, with socio-religious beliefs. Or that nudity in religious contexts, more often of the adorned body than the nude body, is often treated as a metaphor for appearing before God unveiled. Devoid of socio-historical context, the introduction of laws in India which restrict the publication of explicit imagery can seem to be little more than the products of Victorian prudery initially imported into and imposed on to the country during colonial rule; they are that. But they are also, almost unarguably, also laws which fit in with India's own social structures.

There are arguments to be made for allowing the publication and broadcast of explicit content, and for decreasing state intervention in the area. Those arguments, however, are unlikely to find their roots in an imagined liberal history which India has supposedly had. Under current law, there are several statutes which restrict the publication of explicit content including the 1860 Indian Penal Code, the 1956 Young Persons (Harmful Publications) Act, the 1986 Indecent Representation of Women (Prohibition) Act, and the 2000 Information Technology Act; obviously, not all of these laws are attributable to British rule in India. In addition to these laws, there are also several provisions primarily in the Indian Penal Code which govern sexual conduct: these include Section 377 which prohibits 'carnal inter­course against the order of nature with any man, woman or animal', Section 354C which prohibits voyeurism and could potentially be used to counter revenge porn, Section 509 which criminalises any 'word, gesture or act intended to insult the modesty of a woman', and Section 376 which lays down the punishment for rape, amongst others.

Presumably, the publication or broadcast of content featuring a criminal act could result in legal exposure for oneself. It may, however, be possible to consider such publication or broadcast from two points of view: in relation to consent, and in relation to who features in the content. When it comes to sexual offences, consent does not always play a role such as in the case of Section 377 of the IPC — in essence, as an adult, one cannot legally be sexually intimate with a child or an animal, or, according to judicial interpretation, with a consenting adult of the same sex. In the case of provisions such as those in Section 377 of the IPC, it is the performance of the act itself which is criminal and, consequently, there is no way in which to simulate an offence under such a provision of law. That being the case, it is possible that it would be much more difficult to claim the the publication or broadcast of content featuring an act contemplated by a provision like Section 377 is legal.

As opposed to this, sexual offences such as rape (by an adult man of an adult woman other than his non-separated wife aged, per the IPC, over 15) hinge on the issue of consent, and it is possible to simulate the commission of what would be an offence if it were not for the grant of consent. This being the case, there is a greater possibility that it would be possible to frame arguments supporting the publication or broadcast of content featuring simulated rape or, for that matter, any adult consensual heterosexual activity than it would be to frame arguments in relation to the publication or broadcast of content featuring any activity, consensual or not, contemplated by Section 377. Assuming, of course, that the publication of the content, whatever its nature, could, in the first place, be justified.

Consent, where real people are involved, is important but it is not the only factor involved. Whether it's content featuring real people or animations, the ability to justify the publication or broadcast of explicit content as well appears to be key in determining whether or not the publication or broadcast is, or is likely to be, legally permissible.

(This post is by Nandita Saikia and was first published at Indian Copyright.)

Note: There is a matter pending in the Supreme Court: Sharat Babu Digumarti v. Govt. of NCT of Delhi, Special Leave Petition (Criminal) 7675 Of 2015, which deals with the issue of the relationship between Section 292 of the IPC and Section 67 of the IT Act, and which has sway over explicit material online (which in this case appears to be pornographic).

Dec. 2016 update: The decision of the SC in  Babu Digumarti v. Govt. of NCT of Delhi, Special Leave Petition (Criminal) 7675 Of 2015 was issued on December 14, 2016. It stated, in Para. 34.: "In view of the aforesaid analysis and the authorities referred to hereinabove, we are of the considered opinion that the High Court has fallen into error that though charge has not been made out under Section 67 of the IT Act, yet the appellant could be proceeded under Section 292 IPC."

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