Analysis of Indecent representation of womens Act 1986

AUTHOR - VIKAS MAN SINGH Abstract- The indecent representation of women in the society through various medias and perceiving them as a sexual objects is detrimental to the growth and development of a women and also affect their dignity and values in life. The indecent representation of womens act along with other Acts prohibits all such kind of indecent representation of women which affects the public morality. Also various provisions in international law and IN CEDAW prohibits any such acts which affects the dignity and integrity of a women. After analyzing the Act and it’s relationship with CEDAW we find many improvement which is needed to be made in this act. which will make this Act more effective and will help to curb all those acts which affects the women. What is indecent representation of women. The Indecent representation of womens Act punishes the indecent representation of Women , which means the depiction in any manner of the figure of a woman; her form or body or any part thereof in such way as to have the effect of being indecent, or derogatory to, or denigrating women, or is likely to deprave, corrupt or injure the public morality or morals.It states that no person shall publish or cause to publish or cause to be published or arrange to take part in the publication or exhibition of any advertisement which contains indecent representation of women in any form. 'In the Act, advertisement' includes any notice, circular, label, wrapper or other document and also includes any visible representation made by means of any light, sound, smoke or gas. Important Provisions of the indecent representation of womens Act of 1986. 1. Prohibition of advertisements containing indecent representation of women This section talks about the Prohibition of advertisements containing indecent representation of women. It provides that “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.” Here Advertisement means and includes any notice, circular, label, wrapper or other document and also includes any visible representation made by means of any light, sound, smoke or gas; 2.Prohibition of publication or sending by post of books, pamphlets, etc., containing indecent representation of women This section talks about the Prohibition of publication or sending by post of books, pamphlets, etc., containing indecent representation of women. It says that“No person shall produce or cause to be produced, sell, let to hire, distribute, circulate or send by post any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure which contains indecent representation of women in any form” Exceptions Certain exception to this rule is also provided under this section, in which it is Provided that “nothing in this section shall apply to— (a) any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure— (i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure is in the interest of science, literature, art, or learning or other objects of general concern; or (ii) which is kept or used bona fide for religious purposes; (b) any representation sculptured, engraved, painted or otherwise represented on or in— (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. [Here Ancient monuments" means any structure, erection or monument, or any tumulus or place of interment, or any cave, rock-sculpture, inscription or monolith, which is of historical, archaeological or artistic interest and which has been in existence for not less than one hundred years, and includes- (i) the remains of an ancient monument. (ii) the site of an ancient monument, (iii) such portion of land adjoining the site of an ancient monument as may be required for fencing or covering in or otherwise preserving such monument, and (iv) the means of access to, and convenient inspection of, an ancient monument;] 3.Powers to enter and search T his section provides for the Powers to enter and search. And it says that (1) Subject to such rules as may be prescribed, any Gazetted Officer authorised by the State Government may, within the local limits of the area for which he is so authorised,— (a) enter and search at all reasonable times, with such assistance, if any, as he considers necessary, any place in which he has reason to believe that an offence under this Act has been or is being committed; (b) seize any advertisement or any book, pamphlet, paper, slide film, writing, drawing, painting, photograph, representation or figure which he has reason to believe contravenes any of the provisions of this Act; (c) examine any record, register, document or any other material object found in any placementioned in clause (a) and seize the same if he has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act: Provided that no entry under this sub-section shall be made into a private dwelling house without a warrant: Provided further that the power of seizure under this sub-section may be exercised in respect of any document, article or thing which contains any such advertisement, including the contents, if any, of such document, article or thing, if the advertisement cannot be separated by reason of its being embossed or otherwise from such document, article or thing without affecting the integrity, utility or saleable value thereof. (2) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), shall, so far as may be, apply to any search or seizure under this Act as they apply to any search or seizure made under the authority of a warrant issued under section 94 of the said Code. (3) Where any person seizes anything under clause (b) or clause (c) of sub-section (1), he shall, as soon as may be, inform the nearest Magistrate and take his orders as to the custody thereof. 4.Penalty This Section provides for the Penalty which says that Any person who contravenes the provisions of section 3 or section 4 shall be punishable on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend two thousand rupees, and in the event of a second or subsequent conviction with imprisonment for a term of not less than six months but which may extend to five years and also with a fine not less than ten thousand rupees but which may extend to one lakh rupees. 5. Offences by companies This section talks about the Offences by companies, and it provides that Where an offence under this Act has been committed by acompany, every person, who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence 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 any punishment, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence. Also Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall be proceeded against and punished accordingly. This section says that Offences under this Act is cognizable and bailable. Which reads as; (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence punishable under this Act shall be bailable. (2) An offence punishable under this Act shall be cognizable. Womens and Advertisements: Use of women to promote a concept or product is going on increasing Women are used in TV commercials as weapon of persuasion. Women in many cultures make the majority of consumption decisions; hence they are important target of these advertisers. Positive Impact of Advertisements on Women includes Consumer education, Public Service Advertisements which educates women. Advertisements brings awareness about various issues women need to know. For example: the advertisements of contraceptives inform women about safe sex. Advertisements also offer a career to women as models and fashion design. Advertisements do update women on the latest fashion trends; there by making them more stylish and elegant. But, most of the advertisements make women victims of cheap advertising techniques . The represention of women in indecent ways for whatever commercial ends, is the worst thing done. Other Laws prohibiting indecent representation of women and obscenity 1.Indian penal code, 1860 The Indian Penal Code 1860 contains S. 292 which deals with the sale of obscene books, pamphlet, inter alia representation which shall be deemed to be lascivious or appeals to the prurient interest, which can include obscene advertisements. Indian Penal Code is included as safety legislation to prevent the indecent representation of women in advertisements, because of the logic that Indecent Representation of women can be obscene’, which means that a law curbing obscenity came of help. The word, obscenity denotes the quality of being obscene which means offensive to modesty or decency; lewd, filthy and repulsive. It cannot be denied that it is an important interest of society to suppress obscenity. In Ranjit D. Udeshi Vs State of Maharashtra, the test of obscenity was established. The appellant, a bookseller, sold a copy of the uncensored edition of “Lady Chatterley's Lover". He was convicted under s. 292, Indian Penal Code, it was ruled that in judging a work, stress should not be laid upon a word here and a word there, or a passage here and a passage there. Though the work as a whole must be considered, the obscene matter must be considered by itself and separately to find out whether it is so gross and its obscenity so decided that it is likely to deprave and corrupt those whose minds are open to influences of this sort. In this connection the interests of contemporary society and particularly the influence of the impugned book on it must not be overlooked. Where, obscenity and art are mixed, 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. It is necessary that a balance should be maintained between "freedom of speech and expression" and "public decency or morality"; but when the latter is substantially transgressed the former must give way. And in Chandrakant Kalyandas Kakodar v/s. State of Maharashtra and Ors, it held that there was no fixed rules to determine obscenity." The concept of obscenity would differ from country to country depending on the standards of morals of contemporary society. 2.The Information Technology Act, 2000: Section 67 of the IT Act is the most serious legislative measure against pornography. The section reads as under: Whoever publishes or transmits or causes to be published 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 five years and with fine which may extend to one lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to ten years and also with fine which may extend to two lakh rupees. The important ingredients of an offence under section 67 are publishing, or transmitting, or causing to be published, pornographic material in the electronic form. 3.Cable Television Networks (Regulation) Act, 1995: The Cable Television Networks (Regulation) Act, 1995 prohibits the transmission of advertisements on the cable network which are not in conformity with the Advertisement Code. The Advertisement Code is set out under Rule 7 of the Cable Television Network Rules, 1994. Contravention of these provisions attracts liabilities. The Advertisement Code states that no advertisement shall be permitted which derides any race, caste, color, creed and nationality. In Rule 7 (2) (vi) it states that no advertisement shall be permitted which, in its depiction of women violates Constitutional guarantee to all citizens. In particular, no advertisement shall be permitted which portrays a derogatory image of women. Women must not be portrayed in a manner that emphasizes passive, submissive qualities and encourages them to play a subordinate, secondary role in family and society. The Cable operator shall ensure that the portrayal of the female form, in programmes carried in his cable service is tasteful and aesthetic and is with well established norms of good taste and decency. The Act further states that no advertisement which exploits social evils like dowry and child marriage must be permitted. 4.Press council of india Act,1978 The Press Council Of India is a statutory body established by the Press Council Of India Act, 1978, for the purpose of preserving the freedom of the Press and of maintaining and improving the standards of newspapers and news agencies in India. S. 14 of the Act gives the power to censure. S.14(1) Where, on receipt of a complaint made to it or otherwise, the Council has reason to believe that a newspaper or news agency has offended against the standards of journalistic ethics or public taste or that an editor or working journalist has committed any professional misconduct, the Council may, after giving the newspaper, or news agency, the editor or journalist concerned an opportunity of being heard, hold an inquiry in such manner as may be provided by regulations made under this Act and, if it is satisfied that it is necessary so to do, it may, for reasons to be recorded in writing, warn, admonish or censure the newspaper, the news agency, the editor or the journalist or disapprove the conduct of the editor or the journalist, as the case may be. In the Code -Newspapers should not publish an advertisement containing anything which is unlawful or illegal, or is contrary to good taste or to journalistic ethics or proprieties in the section elaborately dealing with advertisements, which by the inclusion of the term, good taste is to be noted. It also states that …The editors should insist on their right to have the final say in the acceptance or rejection of advertisements, specially those which border on or cross the line between decency and obscenity. Constitution of India,1950 “Womens have the inherent right to dignity” The expression 'life' assured in Article 21 of the Constitution does not connote mere animal existence or continued drudgery through life. It has a much wider meaning which includes right to livelihood, better standard of living, hygienic conditions in the workplace and leisure." Quality of life covered by Article 21 is something more than the dynamic meaning attached to life and liberty. Right to life includes right to human dignity. Right to live with human dignity enshrined in Article 21 derives life breath from the directive principles of State policy .In Maneka Gandhi V Union of India, it was ruled that right to life is not merely confined to physical existence but also includes within its ambit the right to live with human dignity. In Francis Coralie V Union of Territory of Delhi, it was held that right to life means something more than just physical survival and is not confined to protection of any faculty or limb through which life is enjoyed or the soul communicates with the outside world, but includes ‘ the right to live with human dignity. Women are human beings, So every right pertaining to human beings is not alien to women. Women have right to live a dignified life. In Chandra Raja Kumari V. Police Commissioner, Hyd, it had been held that right to live includes right to live with human dignity or decency and therefore holding of beauty contests is repugnant to dignity or decency of women and offends Art 21 of the Constitution. The Universal Declaration of Human Rights, International Covenant on Civil and Political Rights has recognized that human beings have dignity inseparable from them. Thus, the right to dignity being an inseparable part of right to life guaranteed under the Indian Constitution under Art.21 makes the enforcement of the laws possible by the initiation of a writ petition in the Supreme Court or High Courts under Art.32 and Art.226 respectively. Relation of Indecent representation of womens Act with CEDAW In its preamble, the Convention explicitly acknowledges that "extensive discrimination against women continues to exist", and emphasizes that such discrimination "violates the principles of equality of rights and respect for human dignity". As defined in article 1, discrimination is understood as "any distinction, exclusion or restriction made on the basis of sex in the political, economic, social, cultural, civil or any other field". The Convention gives positive affirmation to the principle of equality by requiring States parties to take "all appropriate measures, includinglegislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men"(article 3). Convention aims at enlarging our understanding of the concept of human rights, as it gives formal recognition to the influence of culture and tradition on restricting women's enjoyment of their fundamental rights. These forces take shape in stereotypes, customs and norms which give rise to the multitude of legal, political and economic constraints on the advancement of women. Noting this interrelationship, the preamble of the Convention stresses "that a change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality of men and women". States parties are therefore obliged to work towards the modification of social and cultural patterns of individual conduct in order to eliminate "prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women" (article 5). And Article 10(c) mandates the revision of textbooks, school programmes and teaching methods with a view to eliminating stereotyped concepts in the field of education. Finally, cultural patterns which define the public realm as a man's world and the domestic sphere as women's domain are strongly targeted in all of the Convention's provisions that affirm the equal responsibilities of both sexes in family life and their equal rights with regard to education and employment. Altogether, the Convention provides a comprehensive framework for challenging the various forces that have created and sustained discrimination based upon sex. Indecent representation of women and other international laws Charter of the United Nations reaffirms faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women, Universal Declaration of Human Rights affirms the principle of the inadmissibility of discrimination and proclaims that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, including distinction based on sex, Discrimination against women violates the principles of equality of rights and respect for human dignity, is an obstacle to the participation of women, on equal terms with men, in the political, social, economic and cultural life of their countries, hampers the growth of the prosperity of society and the family and makes more difficult the full development of the potentialities of women in the service of their countries and of humanity, Convinced that the full and complete development of a country, the welfare of the world and the cause of peace require the maximum participation of women on equal terms with men in all fields. The National Human Rights Commission and the State Human Rights Commission can look into violations of dignity of women, even in advertisements. Section 2(d) of the Protection of Human Rights Act, 1993, defines human rights as the rights relating to life, liberty, equality, and dignity of an individual guaranteed in the Constitution or embodied in the international Covenants and enforceable by Courts in India. The NHRC has taken cognizance of certain infringements of dignity of women in advertisements. Improvement which is required to be made in the present Act of 1986 1.The Indecent Representation of Women (Prohibition) Act, 1986, needs to be amended which prohibits indecent representation of women through advertisements or publications, writings and paintings (primarily the print media). To widen the scope of the Act to cover new forms of communication such as the internet, satellite based communication, cable television etc. 2. The Act should prohibits the publication or distribution of any material, which contain indecent representation of women. This provision does not apply to material, which may be published in the interest of science, literature or art or for bona fide religious purpose or for sculptures in ancient monuments or temples. 3.A new definitions of “indecent representation of women”, “electronic form” and “publish”. should be added. “Indecent representation of women” means the depiction of the figure or form of a woman in such a way that it has the effect of being indecent or derogatory or is likely to deprave or affect public morality. “Electronic form” means any information generated, sent or stored in media, magnetic and optical form (as defined in the Information Technology Act, 2000). “Publish” includes printing or distributing or broadcasting through audio visual media. 4. Amendment should be made in the definitions of “advertisement” and “distribution” to include all types of media (printed and electronic). 5.Penalties for various offences should be enhanced For representing women indecently, the penalty for the first offence can be increased to imprisonment of three years from two years and a fine between Rs 50,000 and Rs 1 lakh from Rs 2,000. For a subsequent offence, the term of imprisonment can be between two and seven years and fine between Rs 1 lakh and 5 lakh. Role of people and society in curbing the indecent representation of women The public can play an important role in curbing the indecent representations of women in advertisements, by objecting to it and by choosing not to remain silent. Cultural as well as religious constraints too cannot be over looked totally by the agencies. The media is the watch dog of justice. Media is accountable to the people. Media can play an important role in protesting the indecent representation of women in the media. Journalists have to make people aware of the laws helping them in this goal, through their writings. I would like to point out that a mass awakening only can make a change in the attitude of advertisements towards women. Public service Advertisements are doing their part- thanks to the Governments and NGOs. But women organizations, police, politicians, social workers, legal activists- all have to join hands to fight those indulging in indecent representation of women in advertisements. The advertisements portraying women in a vulgar way, whether it be in hoardings or other in other media, is tolerated and over looked by the people. For. e.g. there is a duty attached to officers under different acts like the Indecent Representation of Women (Prohibition )Act,1986 which can be resorted to remove hoardings with women pictured in a vulgar way. In these circumstances a writ of mandamus can be resorted to. By various cases, the Supreme Court has recognized that the advertisements were in the nature of commercial speech’, thereby liable to be protected under Art 19(1) (a). But it must be remembered that it is not a blanket protection because of the restrictions which includes inter alia grounds of morality and decency. He also points out that the models as well as the advertising agencies do have a right to livelihood and profession, but the so called social workers and activists and lawyers and media persons should come up to enlighten the society at large about the legal consequences of indecent acts. Conclusion After the analysis of this Act we reach to the conclusion that much have to be researched in this field to bring forth a comprehensive piece of legislation or amendments in the existing laws to deal with the vulgar portrayal of women in advertisements. Also the society should also take the responsibility to raise voice against any such kind of indecent representation which is derogatory to the image of womens.