India: Computer Games, Online Games, And Gaming Consoles – Extent And Effect Of Indian Laws On Video Games : Offences And Penalties

Last Updated: 18 December 2015
Article by Vijay Pal Dalmia, Partner

Article by Vijay Pal Dalmia1, Advocate, Supreme Court of India and Delhi High Court, Partner & Head of Intellectual Property Laws Division, Vaish Associates Advocates, India. The Author may be reached at vpdalmia@vaishlaw.com.

There is no specific statute in India relating to the regulation of video games either in matters of obscenity or violence, and there has been not been any decided and reportable court case, wherein the video game industry was involved.

Primarily, following legislations will be applicable on Online Games, Computer Games, Gaming Consoles and Video Games Industry:

  1. Constitution of India2

    1. Article 19 (2) and 39 (f)
  2. Indian Penal Code3, 1860 ("IPC")

    1. Sections 292 and 293
  3. Indecent Representation of the Women (Prohibition) Act4, 1986 ("IRW Act")

    1. Sections 2, 3, 4 and 7
  4. Information Technology Act5, 2000 ("IT Act")

    1. 67, 67A and 85
  5. The Young Persons (Harmful Publications) Act6, 1956

    1. Sections 2 and 3

1. The Constitution of India7

The constitution of India is the Supreme Law of India. It lays down the framework defining fundamental political principles, establishes the structure, procedures, powers, and duties of government institutions, and sets out fundamental rights, directive principles, and the duties of citizens. However, the articles of the Constitution do not specifically fall into the category of a statutes. However, the relevant provision of the constitution can be invoked in the interest of public morality, decency, etc. as a constitution measure before the High Courts and the Supreme Court of India.

Article 19 (1)8 of the constitution of India guarantees that All citizens shall have the right to freedom of speech and expression. However, this right is not an unfettered right and the same is subject to Article 19 (2) of the constitution of India.

Article 19 (2)9 of the Constitution of India restricts the freedom of speech granted under Article 19 (1) (a)10, in the interest of decency and morality.

Article 39 (f)11 of the Constitution of India is a directive policy providing that the children must be given facilities to develop in a healthy manner in conditions of freedom and dignity. Further, the childhood and youth must be protected against exploitation and against moral and material abandonment. However, this Article, per se cannot be considered as law, as same is a guiding principle for enactment of laws.

In special circumstances, these constitutional provision can be invoked to seek the directions from the High Court or Supreme Court of India, for appropriate directions to the government agencies, to prohibit violation or enforcement of some legislation, where such agencies are inactive. This is a widely used tool used by the various individuals to invoke law and compel government authorities to act.

2. Indian Penal Code12, 1980

The Indian Penal Code, 1860 ("IPC") is a comprehensive penal code intended to cover all substantive aspects of criminal law in India.

IPC penalizes sale, publication and distribution of obscene content. The IPC, amongst others, also prohibits the sale, hire, distribution, exhibition, circulation of any obscene object and also penalizes any person who engages in or advertises or promotes or offers or attempts to do any obscene activity. It is pertinent to note that the term used is "obscene object", which is very wide and would include video games as well.

Section 29213 of the IPC lays down three factors to determine what is considered as obscene, which are:

  1. lascivious; or
  2. appeals to the prurient interest; or
  3. if its effect or where it is more than one item, the effect of any one of the items, if taken as a whole, is such as to rend to deprave and corrupt persons who are likely, having regard to all the relevant circumstances to read, see or hear it.

Similarly, Section 293 of IPC is a special provision dealing with the sale of obscene objects to young persons.

Penalty:

Further, Section 292 provides that whoever sells, distributes, exhibits or advertises such material, shall be punished on first conviction with imprisonment of either description for a term which may extend to two (2) 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 (5) years, and also with fine which may extend to five thousand rupees.

Similarly, Section 29314 of IPC provides that whoever sells, distributes, exhibits or circulates any obscene object, to any person under the age of 20 years, shall be punished on first conviction with imprisonment of either description for a term which may extend to three (3) 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 (7) years, and also with fine which may extend to five thousand rupees. Even the attempt to commit the offences as provided above, are also punishable with the same punishments respectively.

3. The Information Technology Act15, 2000 ("IT Act")

The IT Act, amongst others, penalizes the publishing or transmission of any obscene content or sexually explicit material including child pornographic content in electronic form.

Publication and distribution of a video game through a DVD/blue ray, and distribution of the same through internet will fall into the category of publication and transmission respectively.

Sections 6716 and 67A17 of the Information Technology Act provides stringent punishment and fine for publishing or transmission any information in electronic form, which is obscene, or contains sexually explicit act or conduct. Section 67, like Section 292 of the IPC, provides that any material which is lascivious or appeals to the prurient interest or which may deprave and corrupt persons would be considered obscene, and would be punishable under the IT Act. Similarly Section 67A provides that any material in electronic form, which contains sexual act or conduct shall be punishable under the Act.

Penalty:

Section 67 provides imprisonment up to three (3) years and fine up to five lakh rupees for first conviction and imprisonment up to five (5) years and fine up to ten lakh rupees for subsequent convictions.

Section 67A provides punishment up to five (5) years and fine up to ten lakh rupees for first conviction and imprisonment up to seven (7) years and fine up to ten lakh rupees for subsequent convictions.

4. The Indecent Representation Of Women [Prohibition] Act18, 1986 ("IRW Act")

This Act was enacted to prohibit indecent representation of women through advertisement or in publications, writings, paintings, figures or in any other manner and provides for penalty in connection with the same.

The Act punishes the indecent representation of women, which means the depiction in any manner of the figure of a woman, her form or body or any part thereof in such 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.

Section 419 of the Act prohibits any person from selling, distributing, or circulating any film, photograph, representation of figure, which contains indecent representation of women in any form.

Penalty:

Section 620 of the Indecent Representation Of Women [Prohibition] Act, 1986 provides that whoever produces, sells, distributes, or circulates any film, photograph, representation of figure, which contains indecent representation of women in any form, 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 for a term of not less than six months but which may extend to five years and also with a fine not less than ten thousand rupees but which may extend to one lakh rupees.

5. The Young Person's (Harmful Publications) Act21, 1956

The Young Persons (Harmful Publications) Act, 1956, which is an old legislation, and probably forgotten by one and all, as it appears from the research that the said Act, has not been used or invoked since a long time.

This Act was introduced to prevent the dissemination of certain publications, which were considered as harmful to young persons. The act defines "young person" as a person, who is under the age of twenty years.

Section 2 (a)22 of the Young Person's (Harmful Publications) Act, 1956 defines "harmful publication" as any book, magazine, leaflet, news-paper or other like publication which consists of stories told with the aid of pictures or without the aid of pictures or wholly in pictures, being stories portraying wholly or mainly--

  1. the commission of offences; or
  2. acts of violence or cruelty; or
  3. incidents of a repulsive or horrible nature;

in such a way that the publication as a whole would tend to corrupt a young person into whose hands it might fall, whether by inciting or encouraging him to commit offences or acts of violence or cruelty or in any other manner whatsoever.

Penalty:

Sec 323 of the Act makes it an offence to sell, distributes, publicly exhibits, circulates, prints, makes, produces, advertises any harmful publication or has in his possession any harmful publication, shall be punished with imprisonment which may extend up to 6 months or fine or both.

For determining whether or not the games and the images depicted in the games are obscene, lascivious or appeals to the prurient interest under various above mentioned legislations, the court would take into consideration factors such as –

  1. whether the work taken as a whole appeals to the prurient interest;
  2. whether the work is patently offensive;
  3. whether the work taken as a whole, lacks serious literary, artistic, political or scientific value.

The court would also take into account other factors depending on the facts and circumstances of the case.

Footnotes

[1] http://vaishlaw.com/people.php?id=440

[2] http://lawmin.nic.in/olwing/coi/coi-english/coi-indexenglish.htm

[3] http://ncw.nic.in/acts/THEINDIANPENALCODE1860.pdf

[4] http://admis.hp.nic.in/himpol/Citizen/LawLib/c135.htm

[5] http://www.dot.gov.in/sites/default/files/itbill2000_0.pdf

[6] http://www.ncpcr.gov.in/view_file.php?fid=436

[7] http://lawmin.nic.in/olwing/coi/coi-english/coi-indexenglish.htm

[8] http://indiankanoon.org/doc/1142233/

[9] http://indiankanoon.org/doc/493243/

[10] http://indiankanoon.org/doc/1378441/

[11] http://indiankanoon.org/doc/1139107/

[12] http://ncw.nic.in/acts/THEINDIANPENALCODE1860.pdf

[13] http://indiankanoon.org/doc/1704109/

[14] http://indiankanoon.org/doc/601866/

[15] http://www.dot.gov.in/sites/default/files/itbill2000_0.pdf

[16] http://indiankanoon.org/doc/1318767/

[17] http://indiankanoon.org/doc/15057582/

[18] http://admis.hp.nic.in/himpol/Citizen/LawLib/c135.htm

[19] http://admis.hp.nic.in/himpol/Citizen/LawLib/c135.htm#B4

[20] http://indiankanoon.org/doc/45559669/

[21] http://www.ncpcr.gov.in/view_file.php?fid=436

[22] http://indiankanoon.org/doc/706944/

[23] http://indiankanoon.org/doc/194249/

© 2015, Vaish Associates, Advocates,
All rights reserved with Vaish Associates, Advocates, 10, Hailey Road, Flat No. 5-7, New Delhi-110001, India.

The content of this article is intended to provide a general guide to the subject matter. Specialist professional advice should be sought about your specific circumstances. The views expressed in this article are solely of the authors of this article.

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