I. PORNOGRAPHY AND ITS TYPES
The expression pornography is defined as “relating or presentation sexual acts in arrange to cause sexual stimulation through books, films, videos, etc.,” and the expression ‘child pornography’ is defined under section 2(da) of POCSO Act, as “any visual depiction of sexually explicit conduct involving a child which includes photographs, videos, digital or computer-generated image indistinguishable from an actual child and an image created, adapted or modified but appear to depict but appear to depict the child.” The addiction to pornography escalates and desensitizes the behavior of both men and women in a relationship. Homosexual pornography is not widely available as it is considered taboo against socio-culture but the statistics show it is mostly viewed in India.
II. PORNOGRAPHY – LEGAL PROVISIONS IN INDIA
Indian Penal Code
An act or content is said to be obscene when it is lascivious or appeals to be of the prurient interest as mentioned in section 292. The sale of such content through books, paintings, pamphlets, writing, drawing & other kinds of representation and the sale, distribution, publication, import, export, advertisement, and/or make profit from committing such offense is punished with two years of imprisonment or fine or both.
The exception to this is the publication for the public good and bonafide religious purposes.
Section 293 deals with the above-mentioned acts to young persons who are not legal to have access to adult publications. The sale, distribution, and publication to persons below 20 are punishable with imprisonment of seven years or a fine.
Information Technology Act, 2000
Chapter XI Offences Section 67A and 67B of the Act deals with the obscene information publication or transmitting in the digital/electronic form and such publication is punished with imprisonment of five/ten years or a fine that extends up to one to two lakhs rupees. Section 67B deals with sexually uncensored content uploaded in electronic form which directly or indirectly involves children. It results in search of such content in the search engine with downloads and advertisements, and if any of the material is involved in abusing children, shall be punished with imprisonment of five to seven years or a fine that extends up to ten lakhs.
The violation of privacy where a private area of any person is being captured under any circumstances shall be punished with 3 years of imprisonment or fine or both as per s.66E.
Many GOs have been passed to ban the upload and remove the obscene content from online platforms or websites as specified in s.79(3)(b) of the Act. Also, Digital Media Intermediary Rules, 2021 ensure not to host any kind of obscenities and pornographic content that intrude the privacy of others.
The Indecent Representation of Women (Prohibition) Act, 1986
The ban of any material on women that is considered ‘indecent’ under this Act is punishable. As per Section 2(c), The indecent representation means 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.
Protection of Children from Sexual Offences Act, 2012
Section 13 of the POCSO Act prohibits the use of children for pornographic purposes. Section 14 punishes such persons with imprisonment of a minimum of 5 years or a fine or both. POCSO Act also punishes a person for storing/ possessing child pornography with imprisonment of 3 years or a fine up to Rs.5000/ Rs.10,000 for subsequent offenses, according to Section 15.
III. LEGALITY IN INDIA – NEITHER LEGAL NOR ILLEGAL
The publication of obscene material and its transmission is illegal while watching or viewing porn on personal devices and downloading is not illegal. Forcing a person to view such adult material is illegal. Several laws in India are different compared to other countries. and viewing porn in our country is a thing where it is neither made illegal nor legal. Having possession of child porn material is illegal and using a child for such purposes is an offense and is punishable under the POCSO Act. Section 14 and 15 of the POCSO Act states the punishment for offenses of child pornography used for commercial purposes.
V. KAMLESH VASWANI V. UNION OF INDIA(1)
The petition is filed seeking the ban of availability of the porn materials and criminalization of such harmful acts. The petition focuses on how graphic the materials can be and the lust it creates among the minds of the viewers which cannot be erased. The pornographic materials are brutal, violent, and abusive. In India, it creates a ‘n’ number of social and cultural issues and many of the taboos related to it. It is believed in India that the content degrades women and gives no equal treatment to women as enshrined in the Indian Constitution. So, the prayer is to prohibit the sources that give access to such content.
Concerning the precedent, the court said “Only those sex-related materials which tend ‘exciting lustful thoughts’ can be held to be obscene, but the obscenity has to be judged from the point of view of an average person, by applying contemporary community standards. (2)”
The ban on public access is requested and not any private viewing. The Constitution gives an individual the liberty to view porn in private and enjoy the liberty of the same. The private happiness and the intimacies are listed out in R Rajagopal v. State of TN(3) and the right and liberty of privacy as per Art.21 are highly explored and expanded in another case by the High Court of Delhi.
There is inconclusive proof on the concerns about unequal treatment of women in pornography as it is always considered consensual while creating the content material. But the court ensures the filtration in the genre and classification and ban on extreme explicit uncensored videos and contents from the websites.
VI. RAJ KUNDRA, BRITISH-INDIAN BUSINESSMAN CASE – TODAY’S DISPUTE AND DEBATES
As we all know, the production, transmission of porn videos in India is illegal. Raj Kundra, a known businessman, is accused of producing films and is charged for several offenses under sections 292 and 293 of IPC, also for ss. 34 and 420 of IPC. This started from many anonymous complaints from different women for coaxing them into acting in adult movies. The same movies have been aired in his application that is based in the UK and the investigation led to this businessman, for which he is also charged with the provisions of the Information Technology Act and the Indecent Representation of Women (Prohibition) Act.
Debate
Two main arguments in this ongoing case are:
● The applicant and the company of Raj Kundra are UK-based firms and hence the laws of both the countries may overlap and the decision among the courts may also differ because of several provisions and the legality of pornography law differs here and there.
● Many supporters/celebrities came in favor of Raj Kundra stating the content is not porn but erotica and it comes under soft porn. The decision of whether the video are porn or erotica is still pending until it is justified. The legality of porn is still debatable.
The videos uploaded are from the UK. Hence, the conflict. Because it is not uploaded here and all the administrative procedures are run by the person appointed in the UK.
PG Sam Infant Jones v. State(4)
In this case, it is stated that everyone is being watched or under surveillance when there is a question of offense on child pornography. It is said ‘it is obvious that the moment one steps into digital space, one comes under the surveillance either of the State or those manning the social networking sites. If one is zealous about privacy, the only option is to stay outside such networks. Of course, in the current world, it is not a viable option.’
General awareness among the public and netizens relating to cyber offenses is mandatory. Also, while teaching sex education, it is not necessary to upload the video of teaching on the online platform and the court said since it is uploaded and having a child as a part of the video; it is punishable under s.14 of the POCSO act. Whether such a video can be uploaded in social media and the petitioner can escape by saying that she was trying to teach sex education to all children is the question to be decided;
And as per s.13 of POCSO Act
…the child should be used in any form of medium for sexual gratification (5) is punishable.
The court concluded by saying that it should encourage the talent of the child who painted the naked body but not in the way the petitioner encouraged them by uploading this video. And that mother is the window of the child to the world. Sex education in this manner is not substantial.
The provision of the death penalty is inserted in POCSO Act in 2019 as specified in the notification dated 06.08.2019.
REFERENCES:
1. Kamlesh Vaswani V. Union Of India, (2014) 6 SCC 705.
2. Aveek Sarkar V. State Of West Bengal, (2014) 4 SCC 257.
3. R Rajagopal V. State Of Tn, AIR 1995 SC 264.
4. Pg Sam Infant Jones V. State, 2021 SCC Online Mad 2241.
5. Fathima As V. State Of Kerala, 2020 SCC Online Ker 2827.
Authors:
1. Ms. Roohi Babu, B.SC., B.L., (Hons), Advocate practicing at Madras High Court, with 5 years of experience in IPR and Family matters.
2. B. Smruthi, 4th Year student of BA, LLB (Hons) at Saveetha School of Law, SIMATS, Chennai.