Introduction to Indecent Representation of Women Act, 1986

Historical Background and Legislative Intent

In the mid-1980s, India was witnessing a surge in the portrayal of women in objectionable forms across advertisements, magazines, posters, television, and cinema. These representations were often vulgar, suggestive, or offensive, reducing women to mere sexual objects and distorting their dignity. Recognising this as a serious threat to women’s safety, public morality, and social values, the Parliament enacted the Indecent Representation of Women (Prohibition) Act, 1986.

The Act was notified and brought into force on 2nd October 1987. It is a specific legislation aimed at prohibiting the indecent representation of women in all forms of advertisements, publications, writings, paintings, figures, or in any other manner.

Objective of the Act

The primary purpose of the Act is to safeguard the dignity of women and to ensure that their portrayal in media and public spaces is respectful and does not promote objectification, obscenity or moral corruption. It aims to strike a balance between freedom of expression and protection of societal morality, especially in contexts involving gender portrayal.

The Act is preventive in nature, aiming to restrict the initial dissemination of objectionable content rather than focusing only on penalising after the harm is done.

Nature and Scope of the Act

The Indecent Representation of Women Act applies across India and encompasses a wide variety of mediums including print and visual media, packaging, advertisements, books, films, digital slides, and even artistic representations.

The legislation covers both public dissemination (like publishing an ad) and private transmission (like sending a booklet by post). It does not criminalise nudity per se but focuses on whether the representation is indecent or derogatory, capable of corrupting public morals.

Interestingly, it does not apply to:

1. Classical or religious representations;
2. Artistic, literary, or educational materials that serve public interest;
3. Films already governed by the Cinematograph Act, 1952;
4. Temple art or ancient monuments under heritage laws.

Thus, the Act does not curb artistic freedom or religious expression, unless they are misused to spread indecent content under false pretenses.

Importance of the Act in Modern Times

In today’s digital age, where content is rapidly shared across social media and global platforms, the relevance of this Act is even more significant. With increased online circulation of suggestive images and use of women’s bodies in viral marketing campaigns, the Act serves as a legal tool to hold both individuals and corporations accountable.

While some aspects of the law may seem outdated and in need of reform especially considering the rise of OTT platforms and digital influencers it continues to serve as a foundational statute in gender-based content regulation.

Definitions under the Indecent Representation of Women Act, 1986

To understand the scope and applicability of this Act, it is important to first interpret some key terms as defined under Section 2 of the Act. These definitions form the foundation for enforcement and judicial interpretation.

1. Advertisement [Section 2(a)]

“Advertisement” under this Act is not restricted to a newspaper or TV commercial. It includes:

1. Notices, circulars, labels, wrappers, and documents;
2. Visual representations made through light, sound, smoke, gas, etc.

This means a YouTube video, LED display board, or even a hoarding can be considered an advertisement under the law.

2. Distribution [Section 2(b)]

“Distribution” includes both free and paid circulation. Even giving away samples or promotional material can attract liability under this Act if the content is indecent.

For instance, free calendars or posters containing inappropriate female imagery would be covered under this term.

3. Indecent Representation of Women [Section 2(c)]

This is the most crucial definition in the Act. It states:

“Indecent representation of women means the depiction in any manner of the figure of a woman, her form or body or any part thereof in such a 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.”

Key points to note:

1. The focus is on the effect of the depiction, not merely its form.
2. It can include written, visual, digital or symbolic representation.
3. The standard is based on public morality and societal values.

Courts have interpreted “indecent” as something which tends to arouse impure thoughts, degrade the position of women, or reduce them to sexual objects.

4. Label [Section 2(d)]

A “label” is any writing, graphic matter, or stamp affixed to a package or item. Even if the indecent representation is on a cosmetic box or a packet, it will come under this Act.

5. Package [Section 2(e)]

A “package” includes boxes, tins, cartons, or any container used for wrapping items.

For example, a shampoo bottle featuring an inappropriate image can be seized and the advertiser punished under this law.

6. Prescribed [Section 2(f)]

“Prescribed” refers to rules made by the Central Government under Section 10 of the Act. These rules give procedural guidance on searches, seizures, and prosecutions.

Prohibitions, Offences and Penalties under the I.R.W. Act, 1986

Prohibitions & Offences under the Act

The prohibitory framework of this Act is structured mainly through Sections 3 and 4, which focus on advertisements and publications.

Section 3 – Prohibition of Advertisements Containing Indecent Representation of Women

Legal Provision:

Section 3 of the Act states 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.

What does this mean?

It means that anyone whether a publisher, advertiser, artist, or even a social media influencer cannot use images, videos, audio, symbols, or any promotional material where a woman is portrayed indecently.

Key Points to Understand:

1. It covers both offline and digital media, such as magazines, newspapers, hoardings, and even Instagram ads.
2. The intent of the publisher is irrelevant; what matters is the effect and nature of the content.
3. Even indirect participation such as editing or approving such an ad can amount to a violation.

Example:
An advertisement of a clothing brand showing a woman in a sexually suggestive pose that objectifies her rather than promoting the product would fall under this prohibition.

Section 4 – Prohibition of Certain Materials and Their Circulation

Legal Provision:

No person shall produce, sell, hire, distribute, circulate or send by post any content like books, pamphlets, drawings, photographs, figures which contain indecent representation of women.

What does this include?

1. Books, comics, paintings, slides, films, digital content, etc.
2. Both commercial and private circulation, including gifting or mailing such material.

BUT there are exceptions. The law recognises certain scenarios where the publication might be justified.

Exceptions to Prohibition – Understanding the Scope

As per the Proviso to Section 4, the prohibitions shall not apply to:

1. Material justified as being for the public good such as art, science, literature, or learning.
2. Religious material or traditional representations kept for bonafide religious purposes.
3. Content covered under the Cinematograph Act, 1952, i.e., certified films.
4. Representations carved or painted on ancient monuments or temples, which are protected under heritage or religious laws.

Legal Insight for Students:

This is where the law tries to balance freedom of speech (Article 19(1)(a)) with reasonable restrictions (Article 19(2)) in the interest of decency and morality.

Penalties & Liabilities under the Act

To enforce the above prohibitions, the Act classifies the contraventions as criminal offences. This is laid out in Sections 6 & 7. Let’s break them down.

Section 6 – Penalties for Violation

This section provides penal consequences for breaching Sections 3 and 4.

• First Offence:

1. Imprisonment up to 2 years
2. Fine up to ₹2,000

• Repeat Offence:

1. Minimum imprisonment of 6 months (may extend to 5 years)
2. Fine between ₹10,000 and ₹1,00,000

Student Insight:

This shows that the Act believes in progressive penalisation milder punishment for the first mistake, but strict punishment if the violation continues.

Section 7 – Corporate Liability

Often, indecent content comes not from individuals but from companies, media houses, or advertising agencies. This section ensures that such entities are not immune.

1. The company itself and the persons in charge at the time of offence will be held liable.
2. If the offence was committed with the consent or neglect of any director or officer, they too shall be punished.

Example: If a media company publishes a sexist ad and the marketing head approved it, both the company and the head can be prosecuted.

Exception Clause: If a person can prove they acted without knowledge or with due diligence, they may be exempted from liability.

Section 8 – Nature of Offence: Cognizable and Bailable

1. Cognizable: Police can register a case and investigate without prior approval from a magistrate.
2. Bailable: The accused has a right to get bail as a matter of course.

This classification reflects that the offence is serious but also recognises that immediate detention is not necessary unless aggravating factors exist.

Powers & Procedures under the Indecent Representation of Women Act, 1986

Protection of Officials and Rule-Making Power

Section 9 – Protection for Actions in Good Faith

Any government official or agency acting under this Act in good faith shall be protected from lawsuits. This is a standard clause found in many regulatory laws to encourage bold and sincere action without fear of litigation.

Section 10 – Power to Make Rules

The Central Government has the authority to frame detailed procedural rules to implement this Act.

Examples of what the rules may provide for:

1. How seizures should be documented
2. How notices must be issued
3. Procedural requirements before prosecution

Whenever the Central Government makes any rule under this Act, it must be presented before both Houses of Parliament the Lok Sabha and the Rajya Sabha as soon as possible. This is done to ensure transparency and legislative control over executive actions.

Now, here’s how it works in practice:

1. The rule must be laid before Parliament for a total of 30 days.
2. These 30 days can be during one session, or they can be spread over multiple successive sessions.
3. During or after this period, both Houses have the power to either:
   1. Modify the rule, or
   2. Reject the rule entirely.

If both Houses agree to any change or annulment, the rule will either:

1. Continue to operate in its modified form, or
2. Cease to have effect, if rejected.

However, even if a rule is annulled later, anything already done under that rule remains valid. This prevents retrospective invalidation of actions taken in good faith.

Power & Procedure to Enter, Search and Seizure

Section 5 – Power to Enter, Search and Seize

This section empowers authorities to act swiftly and decisively when they suspect a violation.

1. A Gazetted Officer authorised by the State Government can:
   1. Enter premises at reasonable times.
   2. Search the place and seize objectionable material.
   3. Examine records or devices related to the publication.
2. Important Safeguard: The officer cannot enter a private dwelling house without a warrant.

CrPC & BNSS Applicability: All such search and seizure actions are subject to Section 94 of the Code of Criminal Procedure, 1973, ensuring procedural fairness. After the enactment of BNSS, now Section 97 of the Bharatiya Nagrik Suraksha Sanhita, 2023, will be applicable.

Procedure to Enter, Search and Seizure under the Indecent Representation of Women Act, 1986 read with CrPC / BNSS & Rules

As per Section 5(2) of the Act, provisions of CrPC apply so far as may be applicable, especially those under Section 94 CrPC, which deals with the power to search for obscene objects.

These provisions ensure that:

1. Searches are legally authorized and properly documented.
2. A warrant is mandatory in certain cases (like residential searches).
3. The Magistrate plays a supervisory role in granting and overseeing search warrants.

Parallel Provision under Section 97 of BNSS, 2023

The BNSS, 2023 modernizes criminal procedure and continues similar protections. Section 97 BNSS allows a Magistrate to issue a warrant for search and seizure if there is reason to believe that a place is being used for the storage or distribution of objectionable articles, including obscene materials.

Important Clauses under Section 97 BNSS:

1. Magistrate can authorize a police officer above the rank of constable to:
   1. Enter and search premises.
   2. Seize materials suspected to be objectionable.
   3. Arrest persons involved in the deposit or distribution of such content.
2. “Objectionable articles” include obscene objects as referred to in Section 294 of the Bharatiya Nyaya Sanhita (BNS), 2023.

This provision supplements Section 5 of the IRW Act and strengthens the procedural structure, especially where search and seizure involves multiple categories of content.

Detailed Procedure under Indecent Representation of Women (Prohibition) Rules, 1987

The Rules of 1987, framed under Section 10 of the Act, lay down the practical steps to be followed during any seizure. These steps are critical to ensure that the seizure is legal, traceable, and does not tamper with the evidence.

Rule 3 – How Seizures Are To Be Made

The authorized officer must:

Prepare a detailed list of the articles seized (ads, pamphlets, digital material, books).

1. Include details like:
   1. Description and type.
   2. Quantity and markings.
   3. Identifying features or serial numbers.
2. Pack and seal the seized items as per Rule 4.
3. Deliver a copy of the seizure list to the person from whom the items are seized.
4. Ensure that the list is signed by:
   1. The officer conducting the seizure.
   2. The person from whose possession the material is seized.
   3. Two respectable locals (witnesses).

If the item cannot be marked (like a digital display), the officer may mark the packaging or any other attached material.

1. Rule 4 – How to Seal and Pack Seized Articles

This Rule ensures the integrity of evidence and protection from tampering.

1. Items should be packed in strong material (paper, cloth, boxes).
2. Packing should be sealed with adhesive, stitching, or thread.
3. Seals should bear at least four clear impressions:
   1. One on the top, one at the bottom, and two on the body.
   2. The knots of the thread should also be sealed.

Optional Containers: If the size or nature of the item requires, the officer may use a box or container and seal it accordingly.

1. Rule 5 – Special Cases of Seizure

Sometimes, the seized content may be too large or too delicate to pack in the usual way. In such cases:

1. The officer may adopt alternative methods of securing the item.
2. The key concern should be to preserve the utility, integrity, and value of the article.

Example: Seizing a billboard or cinema reel may require photographic documentation or digital copying rather than physical seizure.

1. Magistrate’s Role

After seizure, the officer must immediately inform the nearest Magistrate. This ensures:

1. Independent judicial supervision over the investigation.
2. Orders regarding custody or disposal of the material are issued promptly.

Prevents misuse of power by the officer and upholds procedural fairness.

Landmark Cases of the Indecent Representation of Women Act, 1986

Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881

Facts:

The appellant, a bookseller, was prosecuted under Section 292 of the Indian Penal Code for selling an unexpurgated edition of Lady Chatterley’s Lover by D.H. Lawrence, a book that was considered obscene. He argued that the book had literary merit and that the penal provision violated his right to freedom of speech under Article 19(1)(a).

Legal Issues:

1. Whether Section 292 IPC, which penalizes obscenity, is unconstitutional as violative of Article 19(1)(a).
2. Whether the book in question could be legally considered “obscene.”

Judgment (Ratio Decidendi):

The Supreme Court upheld the constitutionality of Section 292 IPC, ruling that it is a reasonable restriction under Article 19(2) in the interest of public decency and morality. The Court applied the Hicklin Test, holding that the book was obscene because it tended to “deprave and corrupt” those likely to read it. The appellant’s conviction was upheld, establishing that obscenity is not protected under the freedom of speech.

Ajay Goswami v. Union of India, (2007) 1 SCC 143

Facts:

Ajay Goswami, a lawyer, filed a writ petition under Article 32 seeking guidelines for newspapers to prevent the exposure of minors to sexually explicit or indecent content. He contended that unregulated media content infringed the rights of children and was not in alignment with India’s international obligations under the UN Convention on the Rights of the Child.

Legal Issues:

1. Whether media freedom under Article 19(1)(a) can be curtailed to shield minors from exposure to indecent content.
2. Whether the government was obligated to issue guidelines or impose restrictions on the press.

Judgment (Ratio Decidendi):

The Supreme Court held that there already existed sufficient safeguards under the Indecent Representation of Women (Prohibition) Act, 1986, the Indian Penal Code, and the Press Council Act. The Court declined to impose additional restrictions, stating that adult freedoms cannot be curtailed merely on the assumption that minors might access inappropriate content. The petition was dismissed, reinforcing the balance between media freedom and protection of societal values.

Khushboo v. Kanniammal and Anr., (2010) 5 SCC 600

Facts:

Khushboo, a well-known actress, expressed her opinion in a magazine about the growing acceptance of pre-marital sex in Indian society. Several criminal complaints were filed against her across Tamil Nadu, alleging offences under Sections 292, 499, 509 of IPC and the Indecent Representation of Women Act.

Legal Issues:

1. Whether general statements about pre-marital sex amount to indecent representation or defamation.
2. Whether the prosecution was sustainable under the said provisions.

Judgment (Ratio Decidendi):

The Supreme Court quashed all proceedings, holding that the mere reference to pre-marital sex did not amount to obscenity or indecent representation. The Court emphasized that her comments were a form of personal opinion, protected under Article 19(1)(a). There was no lascivious or prurient content to invoke Section 292 IPC or the 1986 Act. The Court reiterated that vague allegations cannot form the basis of criminal prosecution.

Aveek Sarkar v. State of West Bengal, (2014) 4 SCC 257

Facts:

A German magazine had published a nude photograph of tennis star Boris Becker with his fiancée. The photograph was republished in India in the magazine Sports World and the newspaper Anandabazar Patrika. A lawyer filed a criminal complaint under Section 292 IPC and the Indecent Representation of Women Act.

Legal Issue: Whether publication of a nude photograph, even with a social message, amounts to obscenity or indecent representation.

Judgment (Ratio Decidendi):

The Supreme Court adopted the community standards test and overruled the Hicklin test. It held that the photograph, in context, promoted anti-racism and was not lascivious or intended to arouse prurient interest. The complaint was quashed. The Court emphasized that the intention behind the publication and its overall impact on society must be considered, and not merely nudity in isolation.

Apoorva Arora v. State (Govt. of NCT of Delhi), [2024] 3 SCR 1147

Facts:

The case concerned actors, writers, and producers of a web series College Romance, which allegedly used profane and vulgar language. A complaint was filed under Sections 292 and 294 IPC, Sections 67 and 67A of the IT Act, and also under the Indecent Representation of Women Act, 1986.

Legal Issues:

1. Whether the use of profane and vulgar language in a fictional web series amounts to “obscenity” or “indecent representation”.
2. Whether FIR under Section 67A IT Act and IRWA could be sustained.

Judgment (Ratio Decidendi):

The Supreme Court quashed the FIR. It held that there was no depiction of sexually explicit acts to attract Section 67A, and merely using expletives or slang does not constitute an offence under the IT Act or the Indecent Representation of Women Act. The Court reiterated the need to apply the community standard test and held that criminal law should not be used to suppress creative expression unless a clear offence is made out.