SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

More documents

Recommendations

Info

looked for. It may however be said at once that sex and nudity in art and literature cannot be regarded as evidence of obscenity without something more.”763 In the present case the film depicted trafficking of girls, venereal disease, HIV/AIDS, cancer of reproductive and sexual organs and pregnancy all of which the court held were valid and could not be considered obscene. However, in relation to different sexual postures the court found that deletion of these scenes was valid as they could create “lasciviousness or lustful thoughts” particularly in adolescents. 764 In a more recent case, Ajay Goswami v. Union of India 765 the Supreme Court of India considered a case where the petitioner invoked the Indecent Representation of Women (Prohibition) Act and the Indian Penal Code and sought the imposition of fetters on newspapers in India which printed material that was unsuitable for the reading by minors. The court found that if such material was felt to be obscene the aggrieved person already had several remedies to pursue under the gamut of laws addressing obscenity. Further fetters in the forms of guidelines were unnecessary. In relation to the argument of the petitioner that minors would have access to inappropriate material, the court held, “We are able to see that respondent Nos. 3 & 4 [Ed - the newspapers] are conscious of their responsibility towards children but at the same time it would be inappropriate to deprive the adult population of the entertainment which is well within the acceptable levels of decency on the ground that it may not be appropriate for the children. An imposition of a blanket ban on the publication of certain photographs and news items etc. will lead to a situation where the newspaper will be publishing material which caters only to children and adolescents and the adults will be deprived of reading their share of their entertainment which can be permissible under the normal norms of decency in any society.” Dismissing the petition, the court reiterated certain principles that have been followed by Indian courts in a series of judgments to deem a material as obscene: that an ordinary person (and not a hypersensitive one) applying contemporary community standards finds the material taken as a whole to be of prurient interest, that the work depicts sexual conduct specifically in a patently offensive manner and whether the material taken as a whole lacks serious literary, artistic, political or scientific value. In Maqbool Fida Hussein v. Raj Kumar Pandey 766, the Delhi High Court deliberated on whether a painting which depicted India as a nude woman fell within the obscenity prohibition in Indian law. For present purposes it is pertinent to note certain observations of the bench, which reflect a more progressive, balanced view between the freedom of speech and expression and obscenity standards. The court observed that: 763 Ibid. 764 Ibid. 765 2007 (1) SCC 143 766 2008 CriLJ 4107 162
“...any interpretation of 'obscenity' in the context of criminal offences must be in consonance with the constitutional guarantee of freedom of expression which freedom is not confined to the expression of ideas that are conventional or shared by the majority. Rather, it is most often ideas which question or challenge prevailing standards observed by the majority that face the greatest threat and require the greatest protection ...” 767 “Obscenity” as a legal term, has clearly been deliberately left undefined by lawmakers in order that it be left open to interpretation in relation to the contexts and the times in which it requires to be understood. From the judgments discussed above, it is evident that courts have done so in evolving principles that limit the application of obscenity laws and continuously evolve the understanding of the notion of obscenity. But for the aforementioned case of BK Adarsh (which was notably decided 20 years ago) the authors have not come across cases where information related to sexual health per se has been contested as obscene before the courts. In the era of HIV and AIDS, it would seem fair to expect that sexual health information would pass the scrutiny of obscenity standards in law. However, in India for instance, this would be difficult to predict given the repeated outcries of certain sections of the public against the government introducing sex education in the schooling system there. In Bangladesh, the Penal Code contains provisions similar to those in the Indian Penal Code. In Thailand, the Criminal Code has a broad provision on obscenity that covers documents, drawings, prints, paintings, printed matter, pictures, posters, symbols, photographs, cinematograph films, noise tapes, picture tapes or any thing which is obscene. The law punishes the gamut of persons associated with such obscene materials including those who make, produce possess, bring into the country, trade in, distribute, exhibit, help circulate it, etc. 768 Indonesia’s Penal Code contains offences against decency. 769 Specific provisions prescribe punishments for persons who knowingly disseminate, openly demonstrate or put up a writing, a portrait or an object “offensive to decency”; this includes producing importing conveying in transit, exporting, storing, openly or by dissemination in writing makes an unsolicited offer or indicates that such matter is procurable. 770 Punishment is also prescribed where the person does not know but has “serious reasons for suspecting” that the matter is offensive to decency.771 Offences related to decency are also detailed where the matter offensive to decency is shown or given to a minor as is showing matter that relates to a means to prevent or curb pregnancy. 772 7.2 Regulation/censorship of sexual content (incl. internet) Censorship laws in the research countries mostly appear in the form of laws related to media and information technology. 767 Ibid. 768 Section 287, Criminal Code (Thailand) (Unofficial Translation) 769 Chapter XIV, Crimes Against Decency, Penal Code, 1982 (Indonesia) 770 Article 282(1) , Penal Code, 1982, (Indonesia) 771 Article 282(2), ibid. 772 Article 283, ibid. 163
Page 1 and 2:
THE INTERNATIONAL COUNCIL ON HUMAN
Page 3 and 4:
6. ACCESS TO HEALTH SERVICES IN REL
Page 5 and 6:
ABBREVIATIONS AIDS ART ARV CEDAW CE
Page 7 and 8:
in the regional reviews. This is a
Page 9 and 10:
provide for information and distrib
Page 11 and 12:
B. METHODOLOGY In keeping with the
Page 13 and 14:
elevant and key laws and judgments;
Page 15 and 16:
The inability of many sexually stig
Page 17 and 18:
Equality irrespective of a person
Page 19 and 20:
The centrality of women’s rights
Page 21 and 22:
social standing, religious belief,
Page 23 and 24:
according to the physical condition
Page 25 and 26:
Constitutional Court in The Nationa
Page 27 and 28:
protections or statutory law. There
Page 29 and 30:
However it also noted that every Ri
Page 31 and 32:
concerned with declaring that the h
Page 33 and 34:
without guaranteeing the personal p
Page 35 and 36:
to enlarge the meaning and content
Page 37 and 38:
a concept has wider dimensions than
Page 39 and 40:
Such conduct mentioned in clauses (
Page 41 and 42:
embraced the complainant and asked
Page 43 and 44:
does not sever the ties between the
Page 45 and 46:
The potential recognition of same-s
Page 47 and 48:
Similarly, seeking out sex educatio
Page 49 and 50:
condom). Across such laws, the defi
Page 51 and 52:
jurisdictions. Nepal, a country wit
Page 53 and 54:
the conviction of the accused for s
Page 55 and 56:
with an unmarried woman is not puni
Page 57 and 58:
physical characteristics (virginity
Page 59 and 60:
interventions and safeguards such a
Page 61 and 62:
The opinion of the National Commiss
Page 63 and 64:
was married to she would acquire im
Page 65 and 66:
to consider the case of a woman see
Page 67 and 68:
oth parties and deems all marital p
Page 69 and 70:
female who has not attained 12 year
Page 71 and 72:
Article 16 of the Universal Declara
Page 73 and 74:
In Bangladesh, polygamy is allowed
Page 75 and 76:
immovable property. The above propo
Page 77 and 78:
consummation of marriage. The incap
Page 79 and 80:
Violence, especially sexual violenc
Page 81 and 82:
gender norms which many remand home
Page 83 and 84:
female or a female to a male. It in
Page 85 and 86:
from other forms of inequality as w
Page 87 and 88:
c. Whereas victims of violence in h
Page 89 and 90:
courts. 350 According to the Commis
Page 91 and 92:
The Act provides for the appointmen
Page 93 and 94:
Rani 383 it was held that a shared
Page 95 and 96:
The Act specifies imprisonment of 6
Page 97 and 98:
property jointly or separately held
Page 99 and 100:
upees or the amount of the dowry wh
Page 101 and 102:
however, is that, of the 10,000 dea
Page 103 and 104:
Addararachchi 439 the court conside
Page 105 and 106:
harassment, the Indian Supreme Cour
Page 107 and 108:
doer’s sexual desire by using doe
Page 109 and 110:
In holding that there was no justif
Page 111 and 112: coerce or induce female inmates to
Page 113 and 114: material or detain any person for t
Page 115 and 116: consensual sexual activity with you
Page 117 and 118: The fined amount is to be given to
Page 119 and 120: the State and its citizens is one o
Page 121 and 122: every person “the right against e
Page 123 and 124: The law also includes the right of
Page 125 and 126: eing committed. 570 While prosecuti
Page 127 and 128: Broader provisions related to child
Page 129 and 130: in order to engage the child in suc
Page 131 and 132: her.” 631 A person is deemed to h
Page 133 and 134: that they are denied the fundamenta
Page 135 and 136: Indonesia’s Constitution recognis
Page 137 and 138: In Thailand too, abortion is illega
Page 139 and 140: With regard to the first question,
Page 141 and 142: Further, any pregnant woman may vol
Page 143 and 144: childbearing age to establish a hea
Page 145 and 146: Government could not be held liable
Page 147 and 148: among those in the reproductive age
Page 149 and 150: Members' right to protect public he
Page 151 and 152: 7. INFORMATION, EDUCATION AND EXPRE
Page 153 and 154: education as well as non-discrimina
Page 155 and 156: The exchange of information through
Page 157 and 158: community.” 727 In each case, the
Page 159 and 160: Nepal’s Interim Constitution limi
Page 161: Sections 292, 292A, 293 and 294 of
Page 165 and 166: “1 (a) Condones or extenuates act
Page 167 and 168: In Thailand, places of entertainmen
Page 169 and 170: 8. SEX WORK This section examines h
Page 171 and 172: The use of raids, and exemptions fr
Page 173 and 174: clients or make an offer for a sex/
Page 175 and 176: and non-rehabilitative juvenile jus
Page 177 and 178: “In view of the aforesaid proposi
Page 179 and 180: person who commits the act are of t
Page 181 and 182: as parent or guardian has given his
Page 183 and 184: with one) on the charge that it was
Page 185 and 186: for sex workers while emphasizing t
Page 187 and 188: 19. Azimuddin v State of Uttar Prad
Page 189 and 190: 1. Acid Control Act, 2002 2. Acid-O
Page 191: 13. Intellectual Property Act, 2003
show all

SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

Create successful ePaper yourself

Delete template?

Save as template?