MINISTRY of JUSTICE LEGAL REFORMS:

By Kalyananda Tiranagama
(continued from yesterday)

In early 2005, Lawyers for Human Rights and Development (LHRD) made a comprehensive and country-wide study on the spread of obscene publications throughout the country and their pernicious social impact, heavily contributing to the increase of sexual abuse of women and children and disruption of family life; on the weakness and lacunae in the existing laws to deal with the problem; the problems and difficulties faced by the Police in the enforcement of the law; how the existing law can be enforced more effectively till required amendments are made in the law and possible amendments that can and need to be made to strengthen the law to effectively deal with the problem. The Study was published in Sinhala and English in May 2005 and launched at a public seminar held with the participation of high officials from the concerned public institutions, Ministry of Justice, Attorney General’s Department, Ministry of Women’s Affairs, National Child Protection Authority, Women and Children Bureau of the Police and Department of Probation and Child Care.

Following the launch, at the initiative of the Sri Lanka Foundation Institute, a public seminar was conducted for law enforcement officers to explain to them how the existing law can be enforced more effectively to curb the menace of obscene publications. Over 500 law enforcement officers participated in the seminar held in the SLFI Auditorium, chaired by Chandra Fernando, Inspector General of Police.

Limitations in the existing law

In our study we pointed out the following limitations in the existing law:

a. Lack of a clear definition of the term ‘obscene’

retarding Police from taking action against publications that are clearly obscene.

b. Existing penalties,

Rs. 1500 – 2000 fine or/and imprisonment for a term not exceeding six months, are hardly adequate for these offences and they cannot have a deterrent effect.

c. No provision to deal with exposure of children to pornographic material.

The 1995 Penal Code amendment does not cover such offences.

d. No provision for confiscation of equipment used for the production and distribution of pornographic publications.

Without confiscating such equipment, the computers used to make these publications, the printing presses used to print them or the vehicles used for their distribution, this menace can never be arrested.

e. This law was hardly applicable to other media except print media

. At present a greater threat is posed by electronic media, social media.

f. The Police had the discretion to decide under which provision of law an offender is to be charged, the Penal Code or the Obscene Publications Ordinance.

g. Though many of the acts promoted through the stories and material published through various media are crimes punishable under the law, there is no specific provision to punish such incitement or promotion of criminal conduct.

h. More than the persons who sell these publications, it is the persons who print, produce and distribute these publications who are mainly responsible for this menace. Law needs to be further strengthened to enable the Police to arrest and prosecute persons who print, produce and distribute them rather than the sellers of obscene materials.

i. Producing and distribution of pornography is a big business with high profits, in which many people are involved. Existing law cannot deal with the partners in this business or the huge profits they make at a heavy social cost.

j. Though equally or more harmful material are shown by various T.V. Channels during peak hours when children are watching them, there are no provisions to prevent that or deal with the persons who are responsible for these shows either in the Public Performances Ordinance or in any other law.

Steps taken by the Government to Amend the Law in 2007

 Following the launch of the Study in May 2005, in August 2005 the Ministry of Cultural Affairs and National Heritage obtained 100 copies of the Study for distribution among the members of the Cabinet of Ministers.

 As shown by a letter of the Secretary to the Ministry of Cultural Affairs and National Heritage, the Cabinet of Ministers has approved a Cabinet Memorandum presented by the Minister of Cultural Affairs and National Heritage for the Amendment of the Obscene Publications Ordinance and it has been sent to the Legal Draftsman for drafting the Bill.

 The Draft Bill prepared by the Legal Draftsman has been presented to the Cabinet of Ministers by the Minister of Cultural Affairs and National Heritage, Mahinda Yapa Abeywardhana (now the Speaker of Parliament) and the Minister of Justice and Legal Reforms, Amarasiri Dodangoda with a Cabinet Memorandum dated 28 March, 2008.

 LHRD received a copy of the Draft Bill from the Secretary to the Ministry of Cultural Affairs with his letter dated 31 October, 2007 and LHRD sent its observations to the Secretary.

Provisions in the 2007 Draft Bill

This Obscene Publications Amendment Draft Bill has taken steps to rectify several weaknesses in the existing law:

a. Lack of a clear definition of the term ‘obscene’ –

S. 12 of the Bill defines the term ‘obscene’: Any matter, object or thing is obscene if such matter, object or thing tends to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear such matter, object or thing.

b. Existing penalties – Rs. 1500 – 2000 fine or/and imprisonment for a term not exceeding six months – are hardly adequate for these offences and they cannot have a deterrent effect.

Draft Bill has proposed to impose heavy penalties which will have a deterrent effect:

– S. 3 of the Bill: For publishing obscene material – imprisonment up to 10 years or a fine not less than 25,000 rupees or both; second or subsequent conviction – imprisonment for a term which may extend up to twenty years or a fine not less than 100,000 rupees or both.

LHRD made the following observation on the penalties proposed in the Draft Bill

*** The Jurisdiction to try these offences has been given to the High Court. For practical reasons it is better to leave this jurisdiction with the Magistrate’s Court. Otherwise, these cases will pile up in the High Courts for decades.

*** These proposed sentences also appear too excessive. Mandatory jail sentence of two years coupled with a fine of Rs. 100,000 and confiscation of equipment will be more than enough to have a deterrent effect.

c. No provision to deal with exposure of children to pornographic material. The 1995 Penal Code amendment does not cover such offences.

–

S. 4 of the Bill: Exposure of children to obscene material: imprisonment for a term not less than two years and not exceeding ten years or a fine not less than 200,000 rupees or both; second or subsequent conviction – imprisonment for a term not less than two years and not exceeding twenty years and a fine not less than 500,000 rupees;

d. No provision for confiscation of equipment used for the production and distribution of pornographic publications. Without confiscating such equipment, the computers used to make these publications, the printing presses used to print them or the vehicles used for their distribution, this menace can never be arrested.

–

S. 16 (2) of the Bill makes provision for the confiscation of any movable property used in the commission of the offence.

e. This law was hardly applicable to other media except print media. At present a greater threat is posed by electronic media, social media.

– S. 3 (a) of the Bill makes it applicable to all media: Any person who (a) publishes, publicly exhibits or lets on hire or knowingly sells or distributes or in any manner introduces into circulation through any medium of communication, any matter, object or thing which is obscene – commits the offence.

f. The Police had the discretion to decide under which provision of law an offender is to be charged, the Penal Code or the Obscene Publications Ordinance.

– S. 4 of the Obscene Publications Ordinance is not in the Bill and they have to ignore Penal Code provisions and act under the new law.

Though this Bill was drafted by the Legal Draftsman to give effect to a Cabinet approved Memorandum, though the Draft Bill was presented to the Cabinet by two Ministers, the Minister of Cultural Affairs and National Heritage and the Minister of Justice and Legal Reforms as early as March 2008, for some unknown and undisclosed reason the Bill was never presented to Parliament.

In the study conducted in 2004 – 2005, LHRD had come across 29 different obscene publications published and distributed throughout the country by different publishers. Most of them were weekly or fortnightly publications with multi-colour photographs. Publishing of obscene material is a lucrative business. There can be no doubt that during election times many of our politicians and political parties get the support of these press owners to have their posters and other propaganda material printed. Otherwise, there is no valid reason for this important Bill not to be presented to Parliament even 12 years after the Bill was presented for Cabinet approval. That was the response we got from the Police as well when we questioned them as to why they raided only the paper stalls where these publications were available for sale and why they did not raid the printing presses where these publications were printed.

The ‘Prohibition of Obscene Publications Bill’ brought by the Ministry of Justice under its Legal Reforms Project was published in the Gazette on Friday, December 24, 2021. The weekend being Christmas Holidays, the public had hardly any time to go through the Gazette and see what it is. However, within two days of its publication the Bill was withdrawn by the Minister of Justice. A statement issued by the Secretary to the Ministry of Justice M.M.P.K. Mayadunne on December 29, has stated that the decision to withdraw the Bill was taken due to concerns raised by civil society activists and other stakeholders, objecting to the bill on several grounds, including copyrights.

Several questions arise from the statement of the Ministry Secretary. Other than the definition of the term ‘obscene’ in the Bill, the contents of the Bill were not published in any print media. What are the provisions in the Bill that led to objections that aroused concerns of the civil society activists? When and how did they raise these concerns? Print or electronic media did not publish any news about the concerns of civil society activists.

Usually when people have objections to or concerns about any matter, they issue a statement or conduct a press conference expressing their views. But nothing of that sort has happened in this instance. Moreover, there was hardly any time for anybody to raise their concerns. If there was anything contrary to fundamental rights or inconsistent with the Constitution in the Bill they can go to the Supreme Court and challenge it.

Who are these civil society activists and other stakeholders who are so powerful as to compel a powerful Cabinet Minister as the Minister of Justice to withdraw a Bill published in the Gazette within 48 hours of its publication? Who are these stakeholders who may be adversely affected by the prohibition of publication of obscene material? What copyright they can have in the production of indecent and obscene material?

Definition of the word ‘obscene’

The word ‘obscene’ has been defined in the Bill as “any matter, object or thing, which by itself or where it comprises more than one distinct component taken by itself, is sufficient to deprave and corrupt the mind of a reasonable person, but does not include any matter, object or thing containing anything done in the interest of science, literature, art, education or learning.”

If it is this definition of the word ‘obscene’ in the Bill that has led to these concerns of civil society activists and other stakeholders, it must be pointed out that it is a definition found in the law of England and India and upheld by our Supreme Court in a number of cases.

The definition in the 2007 Draft Bill

: “Any matter, object or thing is obscene if such matter, object or thing tends to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear such matter, object or thing.’’

Webster’s New Collegiate Dictionary

definition: disgusting to the senses; repulsive; abhorrent to morality or virtue; designed to incite lust or depravity.

Oxford Dictionary

definition: “Offensive to modesty; expressing or suggesting unchaste or lustful ideas; impure, indecent, lewd.”

The definition

given in the English Case of Regina vs. Hicklin: “I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.”- Cockburn C. J., Regina v. Hicklin, 1L. R. 3 Q. B. 360, Quoted in Archibold, 27th ed., 1321

In the case of Sub-Inspector of Police, Tangalle v. Dharmabandu, 33 NLR 14, our Supreme Court adopted the definition of ‘obscenity’ given in the English Case of Regina vs. Hicklin. The Court held: “An Article is obscene where the tendency of its contents would be to deprave and corrupt the minds of those into whose hands it may fall.”

In two other cases – De Bruin v. Dharmabandu, 32 NLR 88; and Perera v. Agalawatte, 39 NLR 22, the Supreme Court adopted the definition given above. In these cases, the Supreme Court has clearly laid down certain criteria for deciding whether a publication is obscene or not. These criteria can be enumerated as follows:

a. Are there persons whose minds are open to immoral influences of (obscene) publications?

b. Is the publication likely to fall into the hands of those persons?

c. Do the photographs, pictures, stories and articles contained in a publication have a tendency to deprave and corrupt the minds of those into whose hands it may fall?

In respect of any publication, if the answers to these three questions are yes, then it is an obscene publication. In determining whether a publication could have had a harmful effect, the overall impact of the publication is taken into account. The intention of the editor/publisher/printer is irrelevant.

S. 292 and S. 293 of the Indian Penal Code dealing with obscene publications, enacted in 1969, has adopted the definition of obscenity given in Regina vs. Hicklin Case.

S. 292(1)

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 if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstance, to read, see or hear the matter contained or embodied in it;

Certain things or items are clearly exempted from the application of this provision:

Exception – this section does not extend to –

(a) any book, pamphlet, paper, writing, drawing, painting, 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, writing, drawing, painting, 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 Monuments 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.

The definition of the word ‘obscene’ given in the withdrawn Bill is more or less the same as the above mentioned definitions found in the English Law, Indian Penal Code and the definitions adopted by our Supreme Court. There is nothing objectionable or inconsistent with freedom of expression in it. There is no apparent valid reason or justification for the Ministry to withdraw this Bill immediately after its publication in the Gazette.

The Ministry Statement has stated that an amended Bill would be presented to the Cabinet for approval, once discussions are held with interested parties, including the BASL.

Who are these interested parties who are so powerful as to compel the Minister to immediately withdraw a Bill that was published in the Gazette?

Are they the same parties that prevented, all this time since 2008, the Cabinet approved Obscene Publications Amendment Bill, drafted by the Legal Draftsman in 2007, from being enacted?

Certainly, it cannot be the BASL.

(The writer is the Executive Director of Lawyers for Human Rights and Development)