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IN THE SUPREME COURT OF INDIA

[CIVIL APPELLATE JURISDICTION


I.A.NO.________OF 2015
IN
WRIT PETITION (C) Nos 177 OF 2013

IN THE MATTER OF:


KAMLESH VASWANI

.. Petitioners
Versus

UNION OF INDIA AND ORS

..Respondents

AND IN THE MATTERS OF:


Supreme Court Women Lawyers Association
Through its General Secretary

Applicant

AND IN THE MATTER OF:


AN APPLICATION FOR INTERVENTION
TO
THE HONBLE CHIEF JUSTICE OF INDIA
AND HIS COMPANION JUDGES OF THE
SUPREME COURT OF INDIA, NEW DELHI
THE HUMBLE APPLICATION OF THE APPLICANTS ABOVE
NAMED

MOST RESPECTFULLY SHOWETH:


1.

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

Information Technology Act 2000 till amendment as ultra vires of the


Constitution of India and to recognize the harmful effects of Pornography.
2.

The Association of the Applicant is devoted to work and protect the


dignity of women and children. The applicant herein is a registered society
and the present application has been filed through the Secretary of the
applicant Society.

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.

To uphold the independence of the Judiciary and to ensure efficiency in the


administration of justice.

iii.

To promote the rights and welfare of women, children particularly through


legislation and help them in the exercise of their rights.

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.

To promote studies in the science of jurisprudence and Comparative laws.

vi.

To further the diffusion of knowledge of the laws and in particular laws 'relating
to women and children.

vii.

To express opinion upon all legislations and in particular, those concerning or


affecting the rights, privileges and interest of women, children & weaker section
of society.

viii.
ix.

To strive to make access to justice less expensive.


To uphold the highest traditions of the legal profession and to promote legal
education.

x.

To maintain the rights and privileges of women lawyers of India.

xi.

To promote the formation of district units of the Association in different parts of


India.

xii.

To cooperate with Bar Associations and associations of women lawyers of the


nation in order to create better relations amongst the legal fraternity.

xiii.

To cooperate and / or affiliate with organizations with

similar aims and

objectives.

xiv.

To undertake such work as may be decided upon by the association from time to
time.

4.

That it is a matter of fact that the interveners herein as mentioned above


have been taking up all issues related to women in the society today like
sexual harassment, sexual assault, rape, molestation, any sort of indecent
representation of women ,etc.

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

of pornography in 5 Countries taken from reliable internet source that is from


Wikipedia and a report published by Times of India dated covering an incident
happened in Japan. A true copy of the research materials on the legal status of 5
countries of their respective laws on Pornography is annexed herein as
Annexure A/1 .
A true copy of the newspaper coverage dated 10.9.2015 is annexed herein as
Annexure A/2.
d) Watching porn in any form has no positive impact where it has several negative
impacts. It results in victimization of innocent women and children who are
targeted by men after watching porn. It also affects the viewer in a negative
way.
e) The increasing sexual crimes by minors are also on the rise and the accessibility
to porn is considered as one of the major reason as well. And the only solution
for it is total prohibition of any kind of circulation of porn in any medium.
f) The laws prohibiting porn must be implemented, strict rules and regulations
should be made, the government must block the porn sites. And the public
officials responsible for the implementation of such laws must be held
accountable if they fail in performing their duties.
g) Blocking the porn and sexually explicit websites should be an ongoing process,
because the proxy servers are also used by many.
Not only is porn content accessible on the computers with modern technology
,internet connections are available on mobile also these days, even minors now

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:-

INDIAN PENAL CODE

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.]

[(2) Whoever- sells, lets to hire, distributes, publicly exhibits

or in any manner puts

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,

painting, representation or figure or any other obscene object whatsoever, or (b)


imports, exports or conveys any obscene object for any of the purposes aforesaid or
knowing or having reason to believe that such object will be sold, let to hire, distributed
or publicly exhibited or in any manner put into circulation, or(c) takes part in or receives
profits from any business in the course of which he known or has reason to believe that
any such obscene objects are, for any of the purposes aforesaid made, produced,
purchased, kept, imported, exported, conveyed, publicly or in any manner put into
circulation, or (d) advertises or makes known by any means whatsoever that any
person is engaged or is ready to engage in any act which is an offence under this
section, or that any such obscene object can be procured from or through any person,
or (e) offers or attempts to do any act which is an offence under this section, shall be
punished [on first conviction with imprisonment of either description for a term which
may extend to two 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 five years, and also with fine which may
extend to five thousand rupees].

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].

Information Tecnology Act 2000


Sec 66- If any person, dishonestly or fraudulently, does any act referred to in section
43, he shall be punishable with imprisonment for a term which may extend to three
years or with fine which may extend to five lakh rupees or with both.
Sec 67 Punishment for publishing or transmitting obscene material in electronic
form. -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.
Sec 69 Power to issue directions for interception or monitoring or decryption of any
information through any computer resource. (1) Where the Central Government or a State Government or any of its officers specially
authorised by the Central Government or the State Government, as the case may be, in
this behalf may, if satisfied that it is necessary or expedient to do in the interest of the
sovereignty or integrity of India, defence of India, security of the State, friendly
relations with foreign States or public order or for preventing incitement to the
commission of any cognizable offence relating to above or for investigation of any
offence, it may, subject to the provisions of sub-section (2), for reasons to be recorded
in writing, by order, direct any agency of the appropriate Government to intercept,
monitor or decrypt or cause to be intercepted or monitored or decrypted any
information generated, transmitted, received or stored in any computer resource.
(2) The procedure and safeguards subject to which such interception or monitoring or
decryption may be carried out, shall be such as may be prescribed.

(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.

(2) Notwithstanding anything contained in sub-section (1), where a contravention of


any of the provisions of this Act or of any rule, direction or order made thereunder has
been committed by a company and it is proved that the contravention has taken place
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 also be deemed to be guilty of the contravention and
shall be liable to be proceeded against and punished accordingly.
The Young Persons (Harmful Publications) Act, 1956
Sec 3- Penalty for sale, etc., of harmful publications.
(1) If a person
(a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation,
any harmful publication, or
(b) for purposes of sale, hire, distribution, public exhibition or circulation, prints, makes
or produces or has in his possession any harmful publication, or
(c) advertises or makes known by any means whatsoever that any harmful publication
can be procured from or through any person, he shall be punishable with imprisonment
which may extend to six months, or with fine, or with both.
(2) On a conviction under this section, the court may order the destruction of all the
copies of the harmful publication in respect of which the conviction was had and which
are in the custody of court or remain in the possession or power of the person
convicted.
THE INDIAN POST OFFICE ACT, 1898
Sec 20- Transmission by post of anything indecent, etc., prohibited.No person shall
send by post
(a) any indecent or obscene printing, painting, photograph, lithograph, engraving, book
or card, or any other indecent or obscene article, or

(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.

Sec 4- Prohibition of publication or sending by post of books, pamphlets, etc.,


containing indecent representation of women.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: 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.

The Protection of Children from Sexual Offences Act 2012


Sec 12- Punishment for sexual harassment.Whoever, commits sexual harassment upon a child shall be punished with imprisonment
of either description for a term which may extend to three years and shall also be liable
to fine.
Sec 13- Use of child for pornographic purposes Whoever, uses a child in any form of media (including programme or advertisement
telecast by television channels or internet or any other electronic form or printed form,
whether or not such programme or advertisement is intended for personal use or for
distribution), for the purposes of sexual gratification, which includesa.

representation of the sexual organs of a child;

b.

usage of a child engaged in real or simulated sexual acts (with or without


penetration);

c.

the indecent or obscene representation of a child, shall be guilty of the offence


of using a child for pornographic purposes.

International Convention of United Nation: Convention on the Rights of the


Child (CRC) 1990.
Convention on the Rights of the Child where India is also a signatory member
of the Convention Adopted and opened for signature, ratification and
accession by General Assembly resolution 44/25 of 20 November 1989,entry
into force 2 September 1990, in accordance with article 49

Convention on the Rights of the Child (CRC)


..
Article 32
1. States Parties recognize the right of the child to be protected from economic
exploitation and from
performing any work that is likely to be hazardous or to interfere with the child's
education, or to be harmful to the child's health or physical, mental, spiritual, moral or
social development.
2. States Parties shall take legislative, administrative, social and educational measures
to ensure the implementation of the present article. To this end, and having regard to
the relevant provisions of other international instruments, States Parties shall in
particular:
(a) Provide for a minimum age or minimum ages for admission to employment;
(b) Provide for appropriate regulation of the hours and conditions of employment;
(c) Provide for appropriate penalties or other sanctions to ensure the effective
enforcement of the present article.
Article 33
States Parties shall take all appropriate measures, including legislative, administrative,
social and educational measures, to protect children from the illicit use of narcotic drugs
and psychotropic substances as defined in the relevant international treaties, and to
prevent the use of children in the illicit production and trafficking of such substances.
Article 34

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)

to issue appropriate directions to the Respondents to take measures to promote


the dissemination and improvement of filtering services.

c)

to issue directions to the concerned authorities for taking strict measures to


prevent distribution and access to pornography including measures regarding file
sharing software.

d)

to issue directions for enhancement and to strengthen of protective measures to


reinforce support for victims.

e) to frame guidelines and adopting various measures towards improvement in the


effectiveness of blocking Child pornography on the Internet and to take
measures to eliminate child pornography.
f)

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)

to issue direction to promote public relations and awareness-raising activities


concerning risks and proper use of the Internet and

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.

Ms.Sneha Kalita(AOR) and Shiva Vijaya Kumar (Advocate)

Ms. Mahalakshmi Pavani,Sr.Advocate