MINISTRY of JUSTICE LEGAL REFORMS: Sudden withdrawal of prohibition of obscene publications

by Kalyananda Tiranagama

Executive Director

Lawyers for Human Rights and Development

The Ministry of Justice has published in the Gazette on December 24, 2021 the Prohibition of Obscene Publications Bill aimed at prohibiting the publication, distribution, sale, import and export of any matter, object or thing which is obscene. The Bill was to be enacted to curb child pornography as well as to safeguard those who fall victim to harassment and exploitation due to absence of strict laws to deal with offenders.

The word ‘obscene’ has been described 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’.

As reported in the press, in a dramatic turn of events, the Bill has been withdrawn by the Minister of Justice just 48 hours after its publication. The Secretary to the Ministry 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. An amended Bill will be presented to Cabinet for approval, once discussions are held with interested parties, including the BASL.

This is an amendment long overdue. To combat increasing sexual abuse of women and children, there is an urgent need of strengthening the law against obscene publications.

On a perusal of Police statistics relating to sexual offences against women and children during the last 25 years, it clearly appears that there has been a continuous increase in the number of sexual offences against women and children.

There are a large number of obscene and pornographic publications brought out in our country. There can be no doubt that the pornographic and obscene material easily available in our society have heavily contributed to the continuous increase in the number of sexual offences against women and children throughout the country.

Soft pornographic materials openly displayed and freely available throughout the country are more harmful than hard pornographic publications which have a very limited circulation, being patently illegal and circulated stealthily.

Much of the material contained in the soft pornographic publications will have a destructive effect in the long term on the reader, corrupting his mind and debasing his character. Any person including children can have easy access to them.

Soft pornographic publications can have the effect of: a. Corrupting the minds of those who read them; b. Destroying the moral base of the society; c. Prompting children to prematurely engage in sex; d. Promoting sexual abuse of women and children; e. Promoting perverse sexual habits; and f. Promoting prostitution.

Existing Law on Obscene Publications

Legal provisions dealing with obscene publications in Sri Lanka are found in Sections 285 and 286 of the Penal Code and in the Obscene Publications Ordinance No. 4 of 1927 as amended by Act No. 22 of 1983. Two new Sections -S. 286A and S. 360B. were introduced by the 1995 Amendment to the Penal Code. While Sections 285 and 286 deal with printing, importing, distribution, sale and possession of obscene publications in general, sections 286A and 360B deal with employing, using or permitting children to appear or perform in obscene or indecent exhibitions, shows or photographs.

A. Penal Code Provisions:

S. 285 Whoever sells or distributes, imports, or prints for sale or hire, or willfully exhibits to public view, any obscene book, pamphlet, paper drawing, painting, photograph, representation or figure or attempts or offers so to do, shall be punished with imprisonment of either description for a term which may extend to three months or with fine or both.

S. 286 Whoever has in his possession any such obscene book or other thing as is mentioned in the last preceding section shall be punished with imprisonment which may extend to three months or with fine, or with both.

S. 286A (1) Any person who –

(a)

hires, employs, assists, persuades, uses, induces or coerces any child to appear or perform in any obscene or indecent exhibition or show or to pose or model for or to appear in, any obscene or indecent photograph or film or who sells or distributes, or otherwise publishes, or has in his possession, any such photograph or film; or

(b)

being a parent, guardian or person having the custody of a child, causes or allows such child to be employed, or to participate, in any obscene or indecent exhibition or show or to pose or model for or to appear in, any obscene or indecent photograph or film as is referred to in paragraph (a);

(i)

takes or assists in taking of any indecent photographs of a child; or

(ii)

distributes or shows any such photograph or any publication containing such photograph;

(iii)

has in his possession for distribution or showing, any such photograph or publication;

(iv)

publishes or causes to be published, any such photograph or publishes or causes to be published, any advertisement capable of conveying the message that the advertiser or person named in the advertisement distributes or shows any such photograph or any publication or intends to do so –

commits the offence of obscene publication and exhibition relating to children and shall on conviction be punished with imprisonment of either description for a term not less than two years and not exceeding ten years and may also be punished with a fine.

(2)

In this section – “child means ‘a person under eighteen years of age; and ‘film’ includes ‘any form of video recording’.

S. 360B (1) Whoever –

(a)

knowingly permits any child to remain in any premises, for the purposes of causing such child to be sexually abused or to participate in any form of sexual activity or in any obscene or indecent exhibition or show;

(b)

acts as a procurer of a child for the purposes of sexual intercourse or for any form of sexual abuse;

©

induces a person to be a client of a child for sexual intercourse or for any form of sexual abuse, by means of print or other media, oral advertisements or other similar means;

(d)

takes advantage of his influence over, or his relationship to, a child, to procure such child for sexual intercourse or for any form of sexual abuse;

(e)

threatens or uses violence towards a child to procure such child for sexual intercourse or for any form of sexual abuse;

(f)

gives monetary consideration, goods or other benefits to a child or his parents with intent to procure such child for sexual intercourse or for any form of sexual abuse, – commits the offence of ‘sexual exploitation of children’ and shall on conviction be punished with imprisonment of either description for a term not less than five years and not exceeding twenty years and may also be punished with a fine.

B. Obscene Publications Ordinance Provisions

S. 2 It shall be an offence against this Ordinance punishable on conviction by a Magistrate –

(1)

for the first offence, with a fine not exceeding two thousand rupees (one thousand rupees before the (1983) amendment) or imprisonment of either description for a term not exceeding six months (three months before the amendment), or with both such fine and imprisonment; and

(2)

for a subsequent offence committed after a conviction for the first offence, with imprisonment of either description for a term not exceeding six months and in addition with a fine not exceeding two thousand rupees, to do any of the following acts namely : –

(a)

for purposes of or by way of trade or for distribution or public exhibition to make or produce or have in possession for purposes stated or otherwise, obscene writings, drawings, prints, paintings, printed matter, pictures, posters, emblems, photographs, cinematographs films, video cassettes or any other obscene objects;

(b)

for the purposes above mentioned to import, convey or export or cause to be imported, conveyed, or exported any of the said obscene matters or things, or in any manner whatsoever to put them into circulation;

(c)

to carry on or take part in a business, whether public or private, concerned with any of the said obscene matters or things, or to deal in the said matters or things in any manner whatsoever, or to distribute them or to exhibit them publicly or to make a business of lending them;

(d)

to advertise or make known by any means whatsoever, in view of assisting in the said punishable circulation or traffic, that a person is engaged in any of the above punishable acts, or to advertise or to make known how or from whom the said obscene matters or things can be procured either directly or indirectly.

(To be continued)