Cyber Pornography and Strict Liability

(By Shojan Jacob, Advocate, Kottayam)

In the case of Ranjit D. Udeshi v. State of Maharashtra (AIR 1965 SC 881) a person was prosecuted for selling a book by the name Lady Chatterley’s Lover, a popular book written by D.H. Lawrence. The accused pleaded that he had no knowledge of the contents of the book and hence did not have the necessary mens rea. The court rejected this contention and held that in S.292 of the I.P.C. unlike in several other sections did not contain the words ‘knowingly’, or ‘negligently’ etc. So, knowledge of obscenity is not an ingredient of the offence under S.292. It was held that the liability under this section was strict and hence mens rea is not required.

Interpol has recently handed over to Indian agencies a list of suspects who are believed to have accessed ‘child porn’ sites. Media reports indicate that Interpol has taken out the Internet Protocol (IP) addresses of such people from the Internet Service Providers (ISP) and handed it over to the Indian investigating agencies for further investigation.

Obscenity in the cyberspace is addressed in Sections 67, 67A and 67B of the Information Technology Act, 2000. Sections 67 and 67A of the Information Technology Act, 2000 are general sections dealing with obscenity in cyberspace. It borrows the same philosophy from Section 292 I.P.C. and what is punishable under these sections is the ‘publishing’ and ‘transmitting’ of obscene material. ‘Possession for private viewing’ is seen to be excluded from the ambit of these sections. Section 67B dealing with ‘child pornography’ is a graver offence. Section 67B is drafted in a very broad manner to protect children from all sorts of abusive acts in cyberspace. The section applies whenever a child is depicted in an ‘obscene’ or ‘indecent’ manner and it is applicable to both image files and video files. The exception ‘possession for private viewing’ which was available in other sections is not applicable here. Therefore, an individual ‘browsing’, ‘collecting’ and ‘possessing’ child porn content can be booked under this section.

However, Can the courts convict people solely because the Internet Protocol (IP) address and the Media Access Control (MAC) addresses match? Cyber cafes are legally required to maintain ‘System Log files’, but there is no such obligation for home users. How can it be said with certainty that X or Y was the person who accessed the child porn content at home? How fair is it to apply the ‘strict liability principle’ to connect the owner of the computer system to the crime?

In the cyber space your identity is established by your Internet Protocol (IP) address, Media Access Control (MAC) address, the log files etc. The investigating agencies use all these links to connect the individual to the crime. However, it is not difficult for an above average computer literate person to fake, hide or delete these connecting links. Terrorists and criminals usually adopt this method to commit the crime. A person who accesses your system with or without your consent leaves your footprints in the cyber space. The investigating agency may trace the crime to your computer system and you may become a victim in such circumstances.

Secondly an instance where one accesses such indecent or obscene content by accident is not taken into account. When can a person be said to have ‘browsed’ a site? Can an accidental visit to such site amount to ‘browse’ as required in 67B? Let’s not forget that even an accidental visit will leave your digital footprints in cyberspace and can be traced back to your system.

There are a host of websites offering ‘adult porn’ content for viewing and download. India has not imposed a ban on such sites and at the moment, law does not punish browsing such ‘adult porn’ sites. While browsing such sites, the links provided may take you to several other sites. During the course, the sites take you to several other materials hosted in some other sites as well. The user may thus unintentionally visit content which may not exactly fall under the ‘adult porn’ content category. A user may also be taken to the ‘child porn’ content by Trojans, Malwares, Pop Ups or even by a link sent to you by one of your friends. The user’s computer could also be infected with malicious software that turned it into a ‘zombie’.

In all such cases your ‘IP address’ is logged and the investigating agency has sufficient reason to knock at your door. But the question is: Will the investigating agencies conduct further tests on the user’s computer to show that there weren’t any browser hijackers or trojan redirectors installed? Will they try to prove that there was a deliberate effort from the part of the individual to search for such content?

Thirdly, the police have been given very wide powers under Section 67B of the Information Technology Act, 2000. Many a things are left to the subjective interpretation of the investigating officer. The police officer has to decide what is ‘indecent’ or ‘obscene’. If an image is ‘indecent’ in the eye of the police officer, he may charge you for ‘collecting’ indecent images as mentioned in Section 67B.

Law does not take into account all such instances. The sections dealing with cyber pornography describe it as a ‘strict liability offence’. Therefore, once the investigating officer finds certain links like IP Address and MAC Address matching, he may book the individual under these sections. The prosecution will not probe further to find out who the real culprit was.

The law presumes all innocent of crime until proven guilty. However, the society does not. The social stigma attached to such offences is huge and intolerable. When faced with such horrendous situations, an innocent victim may resort to put an end to life as well. Therefore attaching strict liability without probing further to establish the guilt of the person is not proper.

The question is about standard of proof required to punish a person under Section 67B I.T. Act, 2000. It has to be proved with certainty and without an iota of doubt that the person had deliberately accessed such content. Considering the heavy punishment imposed under the section, the preponderance of proof required has to be very high.

A Word of Appreciation to the Article “Agreeable Symmetry”

Published In 2011(4) KLT Journal  Page 20

(By N. Subramaniam, Advocate, High Court of Kerala, Ernakulam)

The legal fraternity will be thankful to Sri. Devan Ramachandran for his article published in 2011(4) KLT Journal page 20 titled as 'Agreeable Symmetry'.

One should be more thankful to the writer of that Article to bring it to the notice of the right thinking people about the scope and importance of  PREVENTION  OF  DAMAGE  TO PUBLIC  PROPERTY  ACT,  1984. As a matter of fact, the judge made law under the said enactment is not much.

However, the Hon’ble Supreme Court has in 2009 (2) KLT 552 (SC) dealt with the matter in a broader perspective on the basis of suo motu cognizance of the offence committed in the name of agitation touching the important issues involved in the matter, so also the Kerala High Court, speaking through Hon’ble Justice K.T.Sankaran, in 2011 (4) KLT 288 has highlighted the importance of Prevention of Damage to the Public Property.

If the property of any private person is damaged or destroyed by another person/persons, of course, there is a remedy provided under the Civil Law. KERALA TORTS (MISCELLANEOUS  PROVISIONS) ACT, 1977 can also be invoked by any private person, if his property is damaged. It can be stated in strongest terms, that before starting Hartal, Bandh by any political party, they must get written permission from the concerned authorities and it is in such a situation that those authorities should and make it a point to fix a fairly good higher amount as and by way of security and in case damage is caused to the property of any citizen by the agitators, they can be compensated, though not fully. Any amount of compensation will not be a substitute for the mental agony suffered by such person, whose property is damaged, for the reason that he would have attached much sentimental value for the property damaged by the agitators. The writer is informed that in the metropolitan city of Mumbai, security to the tune of Rs. 20 lakhs will be ordered to be deposited, before any agitation, Bandh, Hartal by any political party as and when it takes place.

The virus of damaging and destroying public property by the agitators, though at one point of time was limited to cities only, now that trend has begun to spread even in the towns and villages. Such agitators should be given deterrent punishment in their illegal activity. If such attitude is taken by the authorities and by the courts, let us hope that there will not be much destruction, in due course of time. This writer is fully aware that whatever method by this agitators to prevent the illegality, they may continue though in a lesser extent.

Random Thoughts..... Locus Standi of Central

Information Commission to Prefer an Appeal

 (By R. Muraleedharan, Managing Director, (PONTEX) and Deputy Registrar (Legal),

Co-operative Department, Puducherry - 605 009)

The  food  for  thought

While deciding an intra court appeal in Central Information Commission v. Department of Posts and others, reported in 2011 (2) ID 1, the Division Bench of the Delhi High Court raised an preliminary issue when the application for condonation of delay was considered, viz., “whether the Central Information Commission under the Right to Information Act, 2005 can prefer an appeal against the order passed by the learned single Judge under Article 226 of the Constitution of India”. The appeal was disposed but the preliminary issue was kept open without a decision. This has triggered me to write this article.

The  factual  matrix

A narration of skeleton facts as unfurled from the above judgment would help to appreciate the controversy involved, hence facts first. The learned single Judge modified the order dated 3rd August 2009 of the Central Information Commission (‘CIC' for short) in W.P. No.11576/2009 dated 19th August 2010 by bringing down the penalty of  Rs. 25,000 to  Rs. 5,000. This was taken on appeal by the CIC and the Division Bench found no reason to interfere with order of the learned single Judge and disposed the appeal.

To buttress the preliminary issue, viz. on the locus standi of the CIC to prefer an appeal, the learned counsels of the contesting parties cited certain decisions. For the CIC, the counsel relied on, inter alia, a judgment of the Karnataka High Court in Poornaprajna House Building Co-operative Society (AIR 2007 Karnt. 136 : 2009 (1) ID 300) and the respondent banked on, inter alia, the judgment of the Division Bench of the Delhi High Court in U.P.S.C. v. Shiv Shambu and others  (L.P.A. No.313/2007 dated 3.9.2008 : 2008 IX AD (Delhi) 289). The other judgments cited by the bar do not emanate from the Right to Information Act, 2005 (‘RTA’ for brevity), but I would advert them with profit at appropriate places.

The  moot  question

It is really impenetrable for any man with ordinary prudence as to why the CIC was agitated over the issue of reduction of penalty imposed by it before the Division Bench. One can comprehend if a judgment rendered by the Division Bench of the Delhi High Court in Delhi Development Authority v. CIC and Another (2010 (2) ID 383) is taken on appeal where the CIC would have been aggrieved that it wings were chopped and powers were fettered. If my memory is not failing, in the DDA’s case the CIC has appealed to the Supreme Court of India.

Status  of  the  CIC

The constitution of the CIC, terms of office and conditions of service, removal of the Chief Information Commission or Information Commissioners are provided under sections 12, 13 and 14 of the RTA. In respect of State Information Commission the constitution, terms and removal are found in sections 15, 16 and 17 of the Act. The powers and functions of the Information Commissions may be seen from section 18. Section 19 provides for appeal and section 20 deals with penalties. Only the Information Commission is empowered to impose penalty on the public information officer. The orders passed under the Act cannot be called in question in any court, save before the High Court or Supreme Court. The bar of jurisdiction of courts may be found in Section 23. The powers of the Commission are akin to a tribunal.

Precedents  pave  the  way

To start with, let me deal with the judgments cited by the bar. In Poornaprajna House Building Co-operative Society (cited supra) before the Karnataka High Court the respondent Information Commission took a plea that it should not be made a party to the writ petition filed against its orders on the ground that it is not an interested party and requested to drop its name from the list of respondents. Rejecting the plea the High Court ruled that the orders of the Commission are amenable to the jurisdiction of the High Court, and the Commission cannot be equated to a civil court. The Commission is neither directly subordinate to the High Court nor its orders are subject to appellate or revisional jurisdiction of the High Court. The Commission is not even under the administrative control of the High Court. Therefore, Commission is a necessary party to the writ proceedings because in its absence an effective order cannot be made. The presence of the Commission is necessary for a complete and final decision on the question involved in the proceedings and it cannot seek deletion of its name from the array of the parties (respondent) in writ petition.                               (emphasis added).

The aphorism of the Division Bench of the Delhi High Court in U.P.S.C. v. Shiv Shambu and others (cited above) is that the Court has repeatedly issued practice directions stressing that a judicial or quasi-judicial body or Tribunal whose order is challenged in a writ petition (and thereafter possibly in appeal ought not to itself be impleaded as a party respondent. The only exception would be if malafide is alleged against any individual member of such authority or Tribunal in which case again it would be such member, and not the authority/Tribunal, who may be impleaded as a respondent. In essence the Court directed to delete the CIC which was arrayed as the first respondent.

It may be seen that in Poornaprajna’s case the decision is not that the Information Commission has locus standi to prefer appeal, but in writ proceedings before the High Court the Information Commission has to be impleaded as a party. In other words, the Karnataka High Court has not ruled that Information Commission can be an appellant or petitioner but shall be a respondent or one of the respondents when its decision is impugned.

My mind is reminiscent and redolent of a couple of judgments of the High Court of Madras wherein the High Court directed deletion of the Information Commission from array of respondents. While disposing W.P. Nos. 8068 and 8069 of 2008 on 12.2.2010, in M. Velayutham and another v. The Registrar, Tamil Nadu Information Commission and others, the High Court made a significant observation which is reproduced below:

“10. Before closing the case it must be noted that whenever a person challenges the order of the State or Central Information Commission, it is not necessary to make the Commission a party to the writ petition. The Commission is a statutory appellate authority and is expected to function within the four corners of the R.T.I. Act. If its orders are under challenge, the Commission is not expected to defend it. In a writ for certiorari the order will have to speak for itself. If the Commission is made as a party, it will be an unnecessary drain on the Commission to engage counsel to defend its orders. In no case a court is expected to defend its decisions. More often, the Commission’s orders are challenged by the Government departments or information officers at the expense of the Government. In these cases, the applicant who sought the information will be a party and will be expected to defend his request.                                       [underlined for emphasis]

11. Only for the purpose of calling for records or sending a copy of the order, the Information Commission need not be made as a party. If the persons who do not file proper records, then a notice may be sent by the Registry to call for the records if ordered by the courts. Likewise, on complicated matters if any legal assistance is required, the Court can appoint an ‘amicus curiae’ to help the Court. The orders of the Court on all matters involving the Right to Information Act, as a matter of routine, can be marked to the appropriate Commission. The Registry shall henceforth must ask the counsel who files Writ Petitions to delete the Information Commission from the array of parties. This will not only reduce the paper work and administrative difficulties faced by the Commission, besides saving them draining their meager resources.”

Similar view was expressed by the High Court of Madras in A. Kanagaraj v. S.Ramakrishnan and Ors. (2011 (1) ID 274). It was held that when an order of the Tamil Nadu Information Commission is under challenge, Information Commission need not made a party to those proceedings and even if counsels make them as a party, in the array of parties, they should be struck off from the writ petition. It is also indicated that all that the Court can do is to make a copy to the Information Commission, either interim or final order, so that the Commission follows the same as a legal precedent.

Status  of  a  judicial  officer  or  lower  court

A judicial officer or a lower court is generally not involved in a case as a respondent in an appeal preferred against a decision by such lower Court in a judicial proceeding. This is because a judicial officer or a court is not connected either with the facts in issue or with the parties to the proceedings. The court or the judicial officer is unconcerned with the outcome of the appeal and as such, there is no necessity for impleading him in an appeal proceeding even though the appeal may involve a legal challenge to the order passed by him/it. The Supreme Court in the case of Savitri Devi v. District Judge, Gorakhpur  reported in (AIR 1999 SC 976: (1999) 2 SCC 577) [cited by the respondent] disapproved impleading of a judicial officer who disposed of the matter in a civil proceeding in a writ petition filed in the High Court. The court ruled that —

“There was no necessity for impleading the judicial officers who disposed of the matter in a civil proceeding when the writ petition was filed in the High Court; nor is there any justification for impleading them as parties in the Special Leave Petition and describing them as contesting respondents. We do not approve of the course adopted by the petitioner which would cause unnecessary disturbance to the functions of the concerned judicial officers. They cannot be in any way equated to the officials of the Government. It is high time that the practice of impleading judicial officers disposing of civil proceedings as parties to writ petitions under Article 226 of the Constitution of India or Special Leave Petitions under Article 136 of the Constitution of India was stopped. We are strongly deprecating such a practice.”

Distinction  between  an  appeal  from  the  orders  of  the  court  and  writ  against  the order  of  the Tribunal

In Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar (AIR 1963 SC 786), [relied on by the appellant] while dealing with the necessity of impleading parties as necessary or proper parties to a proceeding, the Supreme Court held that a necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. It further held that a subordinate court or a tribunal which passed a decree, in an appeal before the higher court, need not be made a party but it was different in the case of writ of certiorari inasmuch as if the tribunal or authority is not made party to the writ, it can easily ignore the order of the High Court. The Court held as under:

“9.....It is said that in an appeal against the decree of a subordinate court, the court that passed the decree need not be made a party and on the same parity of reasoning it is contended that a tribunal need not also be made a party in a writ proceeding. But there is an essential distinction between an appeal against a decree of a subordinate court and a writ of certiorari to quash the order of a tribunal or authority : in the former, the proceedings are regulated by the Code of Civil Procedure and the court making the order is directly subordinate to the appellate court and ordinarily acts within its bounds, though sometimes wrongly or even illegally, but in the case of the latter, a writ of certiorari is issued to quash the order of a tribunal which is ordinarily outside the appellate or revisional jurisdiction of the court and the order is set aside on the around that the tribunal or authority acted without or in excess of jurisdiction. If such a tribunal or authority is not made party to the writ, it can easily ignore the order of the High Court quashing its order, for, not being a party, it will not be liable to contempt. In these circumstances whoever else is a necessary party or not the authority or tribunal is certainly a necessary party to such a proceeding”       (emphasis mine).

I have also taken the assistance from the order of the CIC in Vinod Surana v. Life Insurance Corporation, Chennai, in complaint No. CIC/AT/A/2007/01502 dated 24th October 2008 to canvass the above points.

Thinking  cap

The observations of the High Court of Madras and the Delhi High Court in the above cases equated the status of the CIC to that of a judicial body and hence ordered for deletion of CIC from the list of respondents. The CIC shall not relegate itself to a litigant and challenge the orders of the High Court either before the Division Bench or the Apex Court to maintain its orders. Once an order is passed by the CIC it becomes a functus officio. The merits of the order can be tested by the contesting parties before the higher forum. There is no personal interest for the CIC in the orders passed by it. This will save lots of its time, money and energy. The present appeal to the Division Bench may be seen as an exception from the normal route and one need not be unduly aggressive over it. Let CIC continue its onward march with the thinking cap on and give an insight to the Right to Information Act, which is hailed as the second independence to the nation.

Effect of Transfer of Immovable Property of Minor by His Guardian

(By T.J. Michael, Advocate, High Court of Kerala)

The question as to what is the effect of alienation of a property of the minor by his guardian without prior sanction from the Guardian Court appears to be shrouded with doubt when viewed in the light of judicial pronouncements on the subject. An obiter dictum laid down in Jince Mary Johns v. K.P. Johny & Anr. (2011 (4) KLT 533), in my humble view appears to have added further confusion on the subject. The Hon’ble Court has while ex post facto ratified a sale of immovable property of a minor son by his widowed mother, declaring her as his guardian, laid down, obiter, that the rigour of necessity of obtaining prior permission from the Court under Sections 28 and 29 of Guardian and Wards Act is applicable only to testamentary guardians or guardians appointed by instruments and where a Guardian is declared or appointed by the Court or where the District Collector acts as the guardian. In other words, the decision lays down that in cases where other guardians as defined under Section 4(2) of the Guardians and Wards Act (Act 8 of 1890) intend to transfer the property of their wards, there is no need for them to obtain prior permission of the Court and the transaction would not become voidable for the of lack of prior permission. My humble view is that this proposition is rather farfetched and amounts to attribution of a meaning not intended by the statute. I humbly feel that the intent and purpose of Section 28 is for enabling a testamentary guardian or guardian appointed by an instrument or the District Collector to make a transfer disregarding the restrictions imposed by the will or instrument of appointment where the Court is of opinion that said restrictions can be ignored; the necessary corollary of which is that where such guardian makes a transfer in compliance of the restriction he can do so without the prior sanction of the Guardian Court. So also in the case of guardians appointed or declared by Court (persons other than District Collector, guardian appointed by will or other instrument of appointment) permission of the Court is necessary for effecting a transfer. To discern that when a Guardian who is only a guardian satisfying the definition of guardian under S. 4(2) of Act 8 of 1890 intends to make a transfer of the minors property he is not subject to such disability or fetter as laid down in S.28 and S. 29 appears to be rather farfetched because when the law enjoins a fetter even or testamentary guardians etc. if they intent to make a transfer against any specifications or directions as contained in the will or instrument of appoint how can it be inferred that Guardians who satisfy the definition of guardian under S.4(2) of Act 8 of 1890 who need not be even be a natural guardian or a person who is having near relationship with the minor is empowered to make a transfer without supervision of the Court. As per the said definition any person who is having care of the person or property of the minor or of both is a guardian.

A survey of earlier decisions on the subject would reveal the uncertainty and confusion prevailing in the matter. A Single Bench decision of this Court reported in Moidu v. Santha (1999 (2) KLT 413) has laid down that alienation of the property of minor by a guardian without prior permission of the Court is void ab initio and non est and can be ignored. Of course this decision came in the case of a Hindu minor to whom the provisions of the Hindu Minority and Guardianship Act (Act No.35 of 1956) apply. It is to be noted that Section 8(2) of the said Act only lays down that transactions made by natural guardians without prior sanction of the Court are voidable at the instance of the minor or any person interested in him. It is also relevant to note that Section 8(1) of Act 35 of 1956 lays down the powers of natural guardians where as Act 8 of 1890 does not contain such a provision. My humble view is that it is an exception carved out from the total prohibition as envisaged in the Guardian and Wards Act. It is pertinent to note here, that S.2 of Act 35 of 1956 says that it is ‘in addition to and not save hereinafter expressly provided, in derogation of the Guardian and Wards Act’. It is also to be noted that the term natural guardian is not defined in Act 8 of 1890. In a later decision reported in ILR 2004 (1) Ker. 491; Ramdas Menon v. Sreedevi, a Full Bench of this Court has laid down that such transactions are only voidable and have to be set aside by action in Court. The Full Bench had referred Supreme Court decisions like Viswambhar & Ors.  v. Lakshminarayan & Anr. ((2011) 6 SCC 163) and Madhukar Viswanath Munji v. Madhao & Ors.  (1999) 9 SCC 446. The question that mainly arose there was whether Article 60 or 65 of the Limitation Act was applicable for a suit for possession by a minor after attaining majority on the allegation that transfer of his property during his minority by his guardian without sanction of the Court. It has been held there that the article applicable is 60 and not 65. In another earlier decision of the Supreme Court in Sreedharan v. Prasanna (1996 (2) KLT 784 (SC)) it is seen to have been held that a transaction by Guardian of a minor without the sanction of the Court is void and there is no need for a declaration and can be simply avoided. It is into the midst of this confusion that 2011 (4) KLT 533 was delivered.

It is pertinent to note that all the above other decisions were delivered in cases arising under the Hindu Minority and Guardianship Act where as the decision in Jince Mary Johns v. K.P. Johny & Another is delivered in a case under the Guardian and Wards Act.   In the above backdrop I am really afraid whether it is able safe to hold that ‘Guardian’ defined under S.4(2) of the Act 8 of 1890 can make a valid transfer of the property of his minor ward without the prior sanction of the court. I think that the law on the subject requires more deep and detailed consideration.