Author: Prashant Mishra (University of Lucknow)
Introduction
In India, the term ‘sex’ has been a very controversial topic. The term is very often linked to a person’s immoral and salacious values. It is frequently related to the immorality and indecency of an individual. Indian laws aim to criminalize selling, distributing, and publicly displaying obscene, sexual, or pornographic content. Watching porn in India privately does not fall within the ambit of an offense under Indian penal law. However, still there are certain limitations to the liberty of watching porn that the Indian judiciary has laid down time again. The question that always remains at the heart of the debate is whether the government can restrict citizens from publishing or viewing Pornography or whether this would amount to an unjustified violation of the basic principle of personal liberty and human rights.
What is Pornography?
The word ‘pornography’ is derived from the Greek word ‘porne’ and ‘graphos,’ which stands for prostitute female captive or harlot and written or picturized content that contains sexually explicit content or acts that are deemed to be indecent by the public at large. Legally, pornography is also obscene. Pornography is mainly the depiction of an act, not the act itself. This means that it is an artistic way to provide that act. Pornography has been further divided into two categories, namely, soft-core and hard-core pornography. However, softcore pornography does not depict the actual penetration, while hard-core does. From a legal perspective, defining pornography is not easy because, at the global level, the term pornography varies widely. However, the expansion of the internet and technology has further contributed to a variation of the term pornography.
Historical Background of Pornography
Its origin can be traced back to ancient civilization. At that time, erotic art and literature were prevalent. In ancient Greece and Rome, the depiction of sexual art on walls and pottery was considered to be aesthetic and erotic. Similarly, many ancient religious places also have various sculptures depicting as a part of religious and social narratives. Indian cultural history has various references to sexual expressions that are evident from writings such as ‘Kamasutra’ and the depiction of erotic sculptures in religious places. Despite this, Indian society’s attitude towards pornography is highly influenced by morality and religious conservatism. It can be seen that the evolution of pornography majorly accelerated when the painting culture came into being. It was at that time that multiple copies of an expression could be made and circulated in public. Over time, advancements in photography, filmmaking, and digital technology made it more accessible to the public.
Effects of Watching Porn
1. Excessive consumption of pornography can lead to unusual expectations related to real-life sexual relationships. This leads to unrealistic beliefs about sexual intimacy.
2. Regularly viewing pornography may lead to addiction. This addiction starts to interfere with daily life and responsibility.
3. When a person gets addicted to pornography and is regularly exposed to explicit sexual content, he/she might become unusual during sexual time.
4. When an adolescent is exposed to this world of idealized and unrealistic body types in pornography videos, this can lead to low and poor self-esteem issues as well.
5. There is a correlation between huge pornography consumption and an inverse rate of declining mental health.
6. Some genres of pornography depict violence and aggression, which could potentially influence attitudes toward violence and consent.
7. Excessive porn addiction may lead to social withdrawal, isolation, and difficulty in healthy interpreted relationships.
Pornography & Indian Law
Certain pornographic or obscene images that are “lascivious or appeal to that prurient desire or tend to deprave and corrupt humans” are punishable under Indian law. However, while these laws specify the event and situation that trigger punishment, they do not define “pornography” or “obscenity” precisely and specifically. This causes uncertainty when determining whether a person’s activities such as the ownership, creation, or distribution of pornographic material are obscene and hence receive varied or frequent meanings that have changed over time with changing society and mindset furthermore there is the issue of how word “sexually explicit” is interpreted which determine the type of punishment.
Information Technology (IT) Act, 2000
As far as the Information Technology Act of 2000 2is concerned, it has neither banned nor legalized pornography. However, aims to restrict or prohibit the viewership and downloads of pornographic content. The transmission of a “private part of any person without his or her agreement” is covered under section 66E for the same; the penalty is either three years in prison or a fine of not more than two lakh rupees. In Justice K.S. Puttaswamy (retd) v. Union of India and Ors 20183, the right to privacy was recently guaranteed as a basic right and safeguard under the right to life in Part 3 of the Indian Constitution. Sharing any material that violates a person's privacy is consequently a violation of Article 21 of the Indian Constitution. The publication or transmission of obscene material is covered by section 67, described as, “Any material which is lascivious or appeals to the prurient interest of it effect is such as to tend to deprave and corrupt person”. The first conviction carries a sentence of up to three years in jail and a fine of up to five lakh rupees, with successive convictions carrying a sentence of up to five years of imprisonment and a fine of up to ten lakh rupees. Publishing or sending something that depicts sexually explicit acts or conduct is punishable under section 67A4. On a first conviction, the penalty is up to five years in prison and a fine of up to 10 lakh rupees. The current clause applies since the boy's locker room event involved the exchange of modified photographs of girls. On the first conviction, section 67B carries a penalty of up to five years in jail and a fine of up to 10 lakhs rupees. This clause encompasses the creation or dissemination of any digital text or photos that show minors in an “obscene, indecent or sexually explicit manner,” not merely a depiction of children in sexual acts or conduct. It's worth noting that the current situation involves the distribution of indecent or private photos of young girls. As a result, the following section can also be used as a resource. Furthermore, many of the comments and conversations related to obscenity may be included in this area. Section 79(3)(b) states that if mediators failed to “immediately “remove or immobilize access to offensive material “a porn receiving actual knowledge or on being notified by the government or its agency that any information resides in or connected to a computer resource as forbidden by the mediator” was being used to commit unlawful acts, they will not be exempt from the liability. Furthermore, according to the information technology (intermediary guidelines) rules 2011, the mediator must warn the user of computer resources” not to “mass, modify, publish, transmit, display, upload, update any information blasphemous defamatory, obscene grossly harmful, harassing pornographic, invasive of other privacy, hateful ethnically offensive and harm minor in any way”.
Provision under Bhartiya Nyaya Sanhita 2023
Under section 745: Sexual harassment and punishment for sexual harassment. Under Sec. 74 of BNS, showing pornography to someone at that person’s will is considered to be a form of sexual harassment. This means that if someone exposes someone to sexually explicit material without their consent, then the same is considered to be an offence under section 74 of the Act. The section covers the following types of acts:
- Unwanted sexual or physical contact and propositions.
- Requests or demands for sexual favors.
- Displaying pornographic content or explicit material without someone’s consent.
- Making inappropriate remarks or sexual comments to an individual.
Sec 936: Hiring, employing, or engaging a child to commit an offense. Section 93 BNS mainly addresses the hiring or employing of a person below 18 years of age to commit the offense. The offenses here specifically refer to sexual exploitation. The explanation in this section further mentions the applicability of this provision to pornographic content. The section clearly mentions that it is so first of all illegal to hire, employ, or engage anyone under 18 years of age to commit any offence. This means it is illegal to involve any minor in the creation, distribution, or any other type of sexually explicit material. If the minor is used to create or distribute pornography, the person engaged in the minor has to face the same legal consequences as if they had committed the crime. The penalties can be in the form of imprisonment or a fine. The section aims at protecting minors and penalizing those who exploit those children for sexual content. Sections 292 and 293: Sale of obscene book, etc. Obscenity is defined as anything lascivious or anything that promotes the sexual desires of a person or appeals to the prurient interest of the people. The main criteria to find this is checking whether the material tends to deprave or corrupt the mind/views of the reader or viewer. The definition of obscenity applies to material, including books. Templates, paper, writing, drawing, representation, figures, and electronic content. It is an offense to circulate, sell, distribute, or publicly exhibit obscene material. Participating in or profiting from any act involving obscene material is also an offense. If convicted of the offense under Section 292, the first conviction shall be up to 2 years of imprisonment and a fine up to 5000 rupees. For a subsequent conviction, the imprisonment shall be up to 5 years and/ or a fine is 10000.
Protection of Children from sexual offences (POCSO) Act 2012
The POCSO Act 2012 7is a significant legislation aimed at protecting children’s rights and preventing child sexual abuse and exploitation. This Act deals with sexual offenses against children, and a kid is defined as a person under the age of 18 under section 2(d) of the Act. POCSO’s Chapter III addresses the use of minors for pornographic purposes, which we are not concerned with in this case. This Act establishes special courts to bear cases involving minors. Section 42 of the POCSO is crucial because it states that if an offense is committed under both POCSO and IPC/BNS, the offender who is found guilty would face the most severe sentence. The use of a child or minor for pornographic purposes is punished under section 14(1) by up to five years in jail and a fine. Furthermore, the storage of pornographic material involving a child to distribute is punished by up to three years in jail or a fine or both, under section 15 of the aforementioned statute.
Case of Kamlesh Ashwani V. Union of India and Ors (2016)
In the above-mentioned case Hon’ble Supreme Court orally stated that viewing porn in a private room may fall under the constitution’s right to personal liberty. As a result, no authority can take it away from someone, so long as one is watching porn movies in one's home, which is perfectly legal. However, even if it is watched in a private area, watching or storing pornographic content that portrays child pornography, rape, and violence against women is illegal.
Test of Obscenity: The Hicklin test
The Hicklin test was laid down in Regina vs. Hicklin (1868) back in the 19th century by a British court. It was laid down as a standard to judge if something is considered to be obscene if it can deprave and corrupt the people’s minds who are vulnerable to such immoral influences. It means that if a publication could lead to the negative behavior of a person, in short, corrupt the mind of a person who can be easily influenced, then such a thing can be considered obscene. The main purpose of the Hickling Test is to determine whether the test acts as a tool to determine if something is inappropriate for the audience. It mainly focuses on the potential harm that obscene things could cause to people who are vulnerable to such content.
Conclusion
In conclusion, we can say that watching pornography is not yet illegal in India as per the above-mentioned statutes despite their circulation, advertisement, and creation, is illegal in India and strictly, any consumption of child pornography whether it is being watched privately or publicly is an illegal and punishable offense. Consumption of any type of obscene content is a matter of the constitution's right of personal liberty until and unless it doesn’t affect the public at a large level. In the case of KHODAY DISTILLERIES LTD. ORS. VERSUS STATE OF KARNATAKA – The court held that there is no fundamental right to carry on the business of exhibiting and publishing pornographic or obscene films and literature. These above-mentioned case laws and facts clarify that the government and judiciary both are highly concerned on the sensitive matter of pornography, and there is a thin line between the personal liberty and obscenity pulling backward the authorities to ban pornography wholly.
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