HomeLegal ColumnsRaj Kundra and the Porn Ban in India

Raj Kundra and the Porn Ban in India

Introduction

Pornography is not only a morally problematic issue in India but also in every corner of the world. A worst and unfavourable impact of the technology can be seen in this era where pornography’s composition is 33% in the world-wide net. The word “pornographie” first appeared in the French language during the early 19th century and in English by the mid-19th century.[1]

The word pornography is derived from the Greek word porni (prostitute) and graphein (to write), was originally defined as any work of art or literature depicting the life of prostitutes.”[2]

The definition and meaning of Pornography as mentioned in the Oxford Dictionary is “Anything printed or visual material containing the explicit description or display of sexual organs or activity, intended to stimulate sexual excitement.”

The main problem regarding pornography is that there are various technically specialised issues while banning those sites which exhibit pornographic items and how it violates the fundamental rights of speech and expression and access to the free use of internet which causes a very ill impact on the upcoming generation.

Under Section 67 of Information Technology Act 2000, pornography is held as a punishable offence. Therefore, there is an ongoing controversy between the rights of users to access the internet content and legal provisions regarding that particular content. In this article the author has tried to discuss various issues and challenges of pornography in India, through various articles, online data, case laws and books.

One third of the internet is covered by pornographic content. This in turn results in male gender trying to exploit and suppress women, children by committing various offences of unnatural sex. To stop this exploitation of women and children, a strong law is needed. Through this article the author highlights pornography, its legal provisions and the judicial control over it. Author also sheds light upon the adverse impact of porn on society, children and women and recommends the legal changes that can be brought about in the existing legal system.

Since the arrest of actress Shilpa Shetty’s husband Raj Kundra for making and transmitting pornographic videos, one question which is being asked everywhere is: Whether watching pornographic content is illegal in India?India is the country where eroticism is a well understood concept, the evidence being the book named kamasutra written by Vatsyayana. It is considered to be a standard work on human sexual behaviour. In this era of modernisation, the internet is the main vehicle to provide our technological advanced kids with pornography. The early encounter of porn amongst the kids leads to wrong perceptions about sex.

When anyone visits any website that contains adult contents, usually the website asks for your age to be at least 18 to further access the site. Most of the teenagers falsely agree to be 18 and continue with the webpage.Prevalance of ponography in India is so wide that it runs for the third position in porn watch. The list is topped by the United States of America, followed by UK and then India.

Pornography in India

In India, viewing sexually explicit material in private spaces is not illegal.

In the case of Kamlesh Vaswani v. Union of India & Ors.,[3] advocate Kamlesh Vaswani,  filed a PIL before the Supreme Court that demanded to ban pornography in India and prays for a direction to the Union Government to ‘treat watching of porn videos and sharing as non-bailable and cognizable offence’. The Supreme Court rejected his demand for introducing a ban on pornography. In the matter Hon’ble the Chief Justice H.L. Dattu stated that, adults in India had the right to peruse pornographic material if they wanted to as long as they did it within the four walls of their homes. He further rightly said that such a ban would be a violation of Article 21 which safeguards a person’s right to personal liberty. Article 21 of the Indian Constitution gives the right to life and personal liberty to Indian Citizens. Therefore it cannot be taken away by any authority, except by procedure established by Law. None of the Fundamental Rights in India is absolute in nature. Every right comes with reasonable restrictions. In Article 19(2) of Constitution of India, ‘Morality and decency’ is a ground under which the exercise of the fundamental right of a person can be restricted. On the same ground, the government banned pornographic content in India in 2015 which was unsuccessful, and again in the year 2018.

Asserting that porn websites violate “morality and decency”, the Department of Telecommunications of the central government had issued an order to Internet service providers (ISPs)in July 2015, to ban 857 pornographic websites. Then major telecom companies like Jio, Airtel, BSNL, Vodafone have banned many websites from their network.

In September, 2018, the High Court of Uttarakhand in the case of In Re vs State Of Uttarakhand And Others on 27 September, 2018, directed Internet service providers to strictly obey a notification issued by the Centre in 2015 for a ban on porn sites and asked the Centre to strictly ban the pornographic websites.

Why was Raj Kundra arrested?

On February 4 of this year, the Mumbai police said they had arrested five people for allegedly forcing women into porn movies. They would promise these aspiring actresses, who came to Mumbai from various parts of the country, roles in web series. However, on the day of the shoot, they would change the script and threaten the women to expose themselves. If the women refused, they were asked to foot the bill for the shooting preparations. The allegations against Raj Kundra were of making and circulating pornographic content through apps like ‘Hotshot’ and ‘Bollyfame’. The content creation and operations of Hotshots app was carried out through a company named Viaan. According to CBI officials, 68 pornographic films were allegedly found on a hard disk of a laptop seized during a search of Kundra’s premises. The police found a PowerPoint Presentation allegedly with details related to the Hotshots app including financial projections and market strategies.

Section 67 of the Information Technology Act 2000  makes it illegal to publish or transmit “obscene material” in electronic form. This material, can be anything which is “lascivious” or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt” people who watch it, read or hear it. Anybody who does this can be punished with a three-year jail term along with Rs 5 lakh as fine. Section 292 and 293 of the Indian Penal Code 1860 make it illegal to sell, distribute, and exhibit or circulate obscene objects.

In the pre-internet era, the Indecent Representation of Women (Prohibition) Act 1986 sought to prohibit indecent representation of women through advertisements or in publications, writings, paintings, figures or in any other manner.

Impact of child pornography

After the amendment brought in Protection of Children from Sexual Offences (POCSO) Act, 2012, by the centre have finally led to a proper definition of child pornography.

According to the Ministry of Women and Child Development, child pornography is defined 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 a child.”

The 2018 porn ban was triggered by the brutal incident of four boys that gang-raped a 16-year-old girl after luring her to a storeroom on the false pretext of preparation for Independence Day celebrations at their school. During the interrogation, one of the boys revealed to the police that the idea of rape came to him after watching porn on his phone. Based on this case(In Re vs State Of Uttarakhand And Others on 27 September, 2018), the Uttarakhand High Court appealed to the government that unlimited access to pornographic sites should be curbed to avoid adverse influence on the minds of children.

Considering the adverse effect of porn on young minds the national laws on child pornography have been tightened up.

Section 14 of the POCSO Act makes it a crime with strict punishments to use a child or children for pornographic purposes. Section 15 of the same act makes it a crime to store or possess child pornography.

The punishment under the new amended POCSO Act is severe. According to Section 14 of POCSO Act, 2012

Whoever uses a child or children for pornographic purposes shall be punished with imprisonment for a term which shall not be less than five years and shall also be liable to fine and in the event of second or subsequent conviction with imprisonment for a term which shall not be less than seven years and also be liable to fine.”

Several amendments made to the IPC 1860 in 2013 also highlighted the importance of consent. For instance, Section 354A defines sexual harassment as “showing pornography against the will of a woman”.

The Indecent Representation of Women (Prohibition) Act, 1986 also prohibits indecent representation of women through advertisements or in publications, writings, paintings, figures or in any other manner.

Ad-Hoc Committee Report to study the alarming issue of pornography on social media and its effect on children and society as a whole

According to an article published in the web page of  Press Information Bureau(Government of India),on 25 January 2020 “The Adhoc Committee of the Rajya sabha instituted by Chairman Shri M. Venkaiah Naidu has made 40 far reaching recommendations to prevent sexual abuse of children and to contain access to and transmission of child pornography content on the social media.”[4]

The report of the Committee was presented by the Chairman of the Committee to the chairman of Rajya Sabha on 25 January 2020.

The Committee recommended a National Commission for Protection of Child Rights(NCPCR) to be designated as the nodal agency to deal with the issue of child pornography. Also the committee suggested The National Crime Records Bureau (NCRB) to mandatorily record and report annually, cases of child pornography of all kinds. The committee calls for international alliance against child abuse and recommend changes to POCSO and IT Acts to protect children from sexual abuse.

Conclusion

Watching porn or pornographic content is not a bad or harmful thing, but getting addicted to it surely is. Putting a ban on porn cannot reduce sexual offences. The roots need to be fixed. Physical intimacy is a sensitive topic that needs to be discussed. Proper sex education must be provided, especially to the youth, at an early age. School books must have proper information for the children so that they don’t get misguided, and thereby reducing the risks of future offences.

Love is a beautiful emotion and physical involvement is just its expression. It should not be mistaken with just sex.


[1] A Study of Sexuality and Pornography in Mid-Nineteenth Century England (1964)

[2] Encyclopedia of Women in American History

[3] (2014) 6 SCC 705

[4] https://pib.gov.in/PressReleseDetailm.aspx?PRID=1600505

close

Don’t miss out on anything, get latest notifications by subscribing to our newsletter!

We don’t spam!

Smruti Pattnaik
Smruti Pattnaik
Smruti Pattnaik is pursuing B.A. LL.B. from S'O'A National Institute Of Law. Smruti hails from the Temple city, Bhubaneswar.
RELATED ARTICLES

Most Popular