March 7, 2021

Laws Against Cyber Pornography in India – Saving Dignity or Curtailing Freedom?

“Is the use of coercive power of State of prohibiting its netizens from viewing or publishing pornography is limiting the freedom of individuals or is a justified act in the name of protection of morality and dignity in the society?” With the advent of technological revolution, whoever wants can access the internet and this has been a boon and curse both at the same time in a specific civilization, like ours making the state responsible for the protection of the general public from probable wrongs.

And, thus arises the obligation of the state to stop the effect of curses of the advancement of technology, as well. Pornography,i.e, the visual representation of the carnal activities resulting in the sexual arousal of the viewer, is very easily available and accessible on the internet. Available in all of its hardcore and softcore forms, it has no boundary of consensual or non-consensual pornographic content, severely blurring the need for censorship, which is the dark side of the developing technology. Hence, deriving at the core of the debate that, whether the state gets the right to interfere and restrict the sexually explicit material? If yes, to what extent and if no, then why?

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Pornography

In a legal sense, Pornography means “obscenity”. The word obscene has not been defined in IPC as the concept of obscenity differs from society to society and from time to time.[1] But, the test of obscenity laid down in the English decision, the landmark Hickling Case[2] is the basis of the test of obscenity given in §292(1) of IPC.[3] Since terms like ‘obscene’ have been left undefined, the scope to interpret the same can range from the conservative to the liberal.[4] This is the practice followed in India, where pornography is seen as an aggravated form of obscenity.[5]

Cyber Pornography

Cyber pornography is the act of using cyberspace to create, display, distribute, import, or publish pornography or obscene materials, especially materials depicting children engaged in sexual acts with adults. It is a result of the advancement of technology, as with the easy availability of the internet now people can watch thousands of porn on their mobiles, laptops, tabs, etc. whenever they want without the fear of getting caught.

Cyber pornography becomes a crime when it involves children and starts depicting child pornography by using the internet.

In May 2002, one of the biggest publicized catches of child pornography perpetrators was launched called Operation Ore. After the FBI accessed the credit card details, email addresses, and home addresses of thousands of pornographers accessing a British child pornography site, the particulars were given to the British police for investigation.

Porn Content

It has been observed that in a report by Statista,[6] 30 percent of the internet consists of porn content out of which only 10 percent is available on the surface web, and rest is available on the dark web. 28258 people watch porn every second. 90 percent of males and 60 percent of females indulge in watching porn before they turn 18.

Porn Rise

Easy access to the internet has made it easy for people to watch pornographic content without the fear of getting caught. Earlier people used to buy all pornographic content in printed forms such as magazines, photos, etc. but now anyone can watch such content even on mobile phones whenever they want and they don’t even have to reveal their identity. Access to porn sites has become very easy nowadays due to which there has been a sudden rise in pornographic content and its demand on the internet recently. As of 2014, it was believed that porn industry is bringing in more than $13 billion on a yearly basis in the United States.

Laws against Cyber pornography

There are various legislations for regulating Cyber Pornography in India, like the Information and Technology Act, 2000 (IT Act, 2000), Indian Penal Code, Indecent Representation of Women’s Act, 1986, Young Person’s (Harmful Publication) Act and POSCOAct. Provisions related to Cyber Pornography under few of these acts are discussed below :-

IT Act, 2000

Section 67 of IT Act, deals with publishing obscene information in electronic form. Punishment for publishing, creating, downloading, browsing or sharing electronic depiction of children in sexually explicit manner is imprisonment for 5 years or fine of Rs10 Lakh or with both.

Section 67 along with section 67A does not apply to any book, pamphlet, paper, writing, drawing, painting, representation or figure in electronic form which is used for religious purposes or is in the interest of science, literature, art or learning. It is a generally that it does not specifically define pornography or make it an offence, and does not mention child pornography. Section 67B lays down the punishment for involving in sexually explicates electronic or online contents that depicts children. It is also illegal to induce children’s in sexual acts or into online relationship.

Indecent Representation of Women’s Act, 1986

This Act prohibits the representation of women or any part of women’s body in which it hampers public morality and decency.

POCSO Act, 2012

Section 13 of Pocso Act, states that any person who uses a child in form of media for sexual gratification shall be guilty of the offence of child pornography. Whereas, section 14 provides punishment for using a child for pornographic purposes.

Constitutional and Societal Approach

The entire gamut of Indian legislations dealing with obscenity has been upheld as valid under Art. 19(2) of the Indian Constitution which allows for the State to impose reasonable restrictions on the Right to freedom of speech and expression on grounds of inter alia public order, decency and morality.[7] The only judicial pronouncement[8] on the issue of the clash between obscenity and freedom of speech and expression recognized that the cherished right on which our democracy rests is meant for the expression of free opinions to change political or social conditions and for the advancement of human knowledge. The Court, however, went on to uphold the validity of §292 of the IPC on the ground that it manifestly embodies a restriction in the interest of public decency and morality and the law against obscenity, of course, correctly understood and applied, seeks no more than to promote these values.[9]

This approach by legislature and judiciary has completely failed to interpret how watching and enjoying pornographic material violates public decency and morality. The theoretical approach seems to be causing harm to the principle but still the state has completely failed to determine what kind of harm can be caused to the public morality and decency of the society just by some private actions of some consenting adults in watching and viewing pornography. As it is said, pornography in its limited access and acceptable meaning can contribute positively towards society with sexual freedom and liberation of individuals.

But there should be a distinction made between pornographic content of consenting adults and non consenting, there is a lot of content on porn websites which show non consenting pornographic content in the form of MMS (Multimedia message), Child Porn etc. watching and enjoying child porn is an act towards hampering of public morality and decency. Minors, under the age of 18 are incompetent to understand the consequences of their acts and using them for pornographic content when they are not able to understand is completely against public morality and decency, and such content also promotes indecency towards minors in the society.

Not every kind of pornographic content is against public morality and decency, as stated above watching and enjoyment of pornographic content of consenting adults with limited access can contribute positively towards society but pornographic content of non consenting adults or minors is against the dignity of an individual and is also against public morality and decency even more such content promotes a very wrong, harsh and illegitimate behaviour in the society towards juveniles which should be stopped for the betterment of the society.

Conclusion

Legislation has formed laws against cyber pornography in India in the realm of a public order, public morality and decency. Despite such laws there has been easy accessibility to all kinds of pornographic content on the internet, the intention of this article was to demarcate between consensual phonographic content and non consensual pornographic content.

Such non consensual pornographic content is inclusive of child pornography, MMS, videos of sexual offenses etc. should be stopped before entering on the internet because it is a very wide and easily accessible platform by people of all age and all kind also it does not only defames the person but also such kind of content are used by pedophiles to blackmail or contact children who are used for child pornographic content and trade them for sexual favors.

As per liberal ideologies, consensual content is considered as prostitution which is a profession. Hence cannot be condemned completely if it is not harming the public order and morality. Since pornography is considered as an aggravated form of obscenity in India, it becomes difficult to accept even consensual pornographic content but this should be changed.

With the changing time as a developing nation, we cannot stick with conservative ideologies and can no more continue to handover our freedom to choose completely in the hands of the state and hence need to completely ban the non consensual pornographic content on the internet on all surfaces without restricting pornographic content which is not harming the public order at all and thus aiming at balancing of saving the dignity along with reasonable restriction to freedom.

References

[1] PSA Pillai, Criminal Law 701,703 (K. I.Vibhute ed., 2009).

[2] R.v. Hicklin, (1868) LR 3 QB 360.

[3] Indian Penal Code,1860, §292(1): A book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.

[4] Shohini Ghosh, Looking in Horror and Fascination: Sex, Violence, and Spectatorship in India in Sexuality, Gender and Rights 3-5 (Geetanjali Misra, Radhika Chandiramani eds., 2005).

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

[6] https://www.statista.com/chart/16959/share-of-the-internet-that-is-porn/

[7] The Constitution of India, 1950, Arts. 19(1)(a), 19(2).

[8] Ranjit. D. Udeshi v. State of Maharashtra, supra note 12 (reaffirmed in Chandrakant Kalyandas Kakodkar v. State of Maharashtra, supra note 27).

[9] Supra note 12.


Author Details: Janhavi and Ujjwal Lohat (Galgotias University)

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