This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article provides an analysis on the topic as to whether watching porn is a crime in India or not. 

Introduction 

The term “pornography” can be defined as the reporting or portrayal of sexual actions in order to produce sexual excitement through books, films, or other media. Pornographic websites, pornographic material created using computers, and the use of the internet to download and transmit pornographic films, texts, photographs, and photos, among other things, fall under this category. Put simply, watching porn in India, privately, does not fall within the ambit of an offence under Indian penal laws but, there are certain limitations to the liberty of watching porn that the Indian judiciary has laid down time and again. The present article intends to highlight the relationship between porn and crime with respect to India along with recent cases such as the Raj Kundra pornography case. 

Pornography and Indian laws

Certain sexually explicit, pornographic, or obscene images that are “lascivious or appeal to the prurient desire” or “tend to deprave and corrupt humans” are punishable under Indian law. The facts and criteria set out in the following legislation decide whether such activities are legal, prohibited, or punishable:

1. The Indian Penal Code, 1860 (IPC).

2. The Information Technology (IT) Act of 2000.

3. The Protection of Children from Sexual Offenses Act (POCSO), 2012.

4. Women’s Indecent Representation (Prohibition) Act of 1986 (IRWA).

However, while these laws specify the events and situations 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 content, are illegal, because not all pornographic material is obscene and hence receives varied, or frequently no penalty. The two terms have different subjective meanings that have changed over time with changing society and mindsets. Furthermore, there is the issue of how the word “sexually explicit” is interpreted, which determines the type of punishment a person receives.

Information Technology (IT) Act 2000

The transmission of photographs of “a private part of any person without his or her agreement” is covered under Section 66 E. For the same, the penalty is either three years in prison or a fine of not more than two lakh rupees, or both. In the landmark judgment in Justice K. S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors (2018)., the right to privacy was recently ruled to be guaranteed as a basic right and safeguarded under the Right to Life in Part III 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 or if its effect is such as to tend to deprave and corrupt persons”). 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 in prison and a fine of up to 10 lakh rupees.

Publishing or sending anything that depicts sexually explicit acts or conduct is punishable under Section 67 A. On a first conviction, the penalty is up to five years in prison and a fine of up to 10 lakhs. The current clause applies since the Bois Locker Room event involved the exchange of modified photographs of girls.

On a first conviction, Section 67 B carries a penalty of up to five years in jail and a fine of up to 10 lakhs. 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 depictions 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 fail to “immediately” remove or immobilize access to offensive material “upon receiving actual knowledge, or on being notified by the government or its agency that any information resides in or connected to a computer resource forbidden by the mediator” was being used to commit unlawful acts, they will not be exempt from liability. Furthermore, according to the Information Technology (Intermediary Guidelines) Rules, 2011, mediators must warn “users of computer resources” not to “mass, modify, publish, transmit, display, upload, update any information that is blasphemous, defamatory, obscene, grossly harmful, harassing, pornographic, libelous, pedophilic, invasive of another’s privacy, hateful, ethnically offensive,” and “harm minor in any way.”

Cyber pornography in India

In simple terms, cyber pornography is the act of creating, displaying, importing, distributing, or publishing pornography through the use of cyberspace. Traditional pornographic entertainment has been mostly displaced by online/digital pornographic entertainment since the advent of the internet. Cyber pornography is illegal in several countries and allowed in others. This is a grey area of the law in India, as defined by the Information Technology Act, 2000, where it is neither unlawful nor permitted. Downloading child pornography via the internet is likewise punishable under the Information Technology Act, 2000.

Child abuse, aggression against women, rape, inequity, relationship and family collapse, adolescent criminality, promiscuity, and sexually transmitted illnesses are among the concerns that cyber pornography contributes to. India’s archaic laws have been challenged by cyberspace and the pornographic material disseminated through it. Because of the lack of jurisdictional borders, the massive volume of traffic that the internet can manage, and the possibility for anonymity, there is no way to govern what appears on the web at the press of a mouse button. A cyber cafe owner formerly had no accountability, but after the passage of the Information Technology Amendment Act, 2008, their duties have only grown.

The act of collecting and keeping cyber pornography is not illegal, but if it includes kids, it is punishable by up to five years in prison and a fine of up to ten lakhs. Child pornography on the internet is prohibited. Operation Ore, one of the most well-publicized captures of child pornographers, was launched in May 2002. The FBI sent the British police force credit card information, home addresses of thousands of pornographers browsing a British child pornography site, and email addresses after gaining access to them. Following the arrest of a computer specialist in Texas, an international investigation was launched, and Thomas Reedy was sentenced to 1,335 years in jail for his involvement in a pornography ring. Teachers, child-care professionals, soldiers, physicians, social workers, and 50 police officers were among the approximately 1,300 additional culprits arrested.

Indian Penal Code (IPC)

Sections 292 and 293 of the Indian Penal Code, 1860 make it illegal to sell, distribute, and exhibit or circulate obscene objects. The Criminal Law Amendment Act of 2013 added Section 354 D to the Indian Penal Code, 1860, which deals with stalking. After the horrific gang rape and murder of victim Jyoti Singh, known as the Nirbhaya case, the Amendment Act of 2013 was passed, introducing a number of changes to the Code, including Section 354D. “Monitoring a woman’s use of the internet, email, or any other kind of communication,” is included under Section 354D(b). As a result, gathering images of ladies from their social media profiles would also fall under this category. Conviction under this clause can result in a sentence of up to three years in prison and a fine.

Forgery is defined as “making any fake papers or false electronic record, or portion of a document or electronic record, with intent to inflict harm or injury,” according to Section 463 of the aforementioned Code. Forgery is punishable under Section 465 by up to two years in jail or a fine, or both. Section 471 also punishes the use of forged papers or electronic records as real, and it is punishable in the same way as forging a document. Making a fake electronic record would also include making digital changes to an image. 

In the case of State of Punjab v. Major Singh (1966), it was determined that any conduct done to or in the presence of a woman that is indicative of sex in the eyes of humanity is covered by Section 509 of the Code. This area can be used to cover messages that make lewd remarks about the physique or body of the females whose photographs are distributed in the group. This provision provides for a penalty of up to one year in jail, a fine, or both.

Victims of pornography might use defamation as a means of retaliation. Section 499 of the Indian Penal Code, 1860 prohibits producing or publishing allegedly defamatory assertions about a person in the form of words, writings, or visible representations with the goal to injure that person’s reputation. As a result, men’s motivation to injure someone’s reputation is a prerequisite for an infraction under the provision. If the victims so want, they may file a claim under the same. Defamation is punishable under Section 500 of the Code, 1860 by simple imprisonment for a term of up to two years, a fine, or both.

Protection of Children from Sexual Offences (POCSO) Act 2012

POCSO Act, 2012 is a significant piece of law aimed at protecting children’s rights and preventing child sexual abuse and exploitation. This Act deals with sexual offences against children, and a kid is defined as a person under the age of 18 under Section 2 (d) of the Act. The 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 hear cases involving minors. Section 42 of the POCSO is crucial because it states that if an offence is criminal under both the POCSO and the IPC, the offender who is found guilty would face the most severe sentence.

The use of a child or minors for pornographic purposes is punished under Section 14(1) by up to five years in jail and a fine. Furthermore, storage of pornographic material involving a child with the aim to distribute it is punished by up to three years in jail or a fine, or both, under Section 15 of the aforementioned statute.

Women’s Indecent Representation (Prohibition) Act of 1986 (IRWA)

The Indecent Representation of Women (Prohibition) Act (IRWA), enacted in 1986, forbids indecent representation of women in ads, publications, writings, paintings, figures, and other forms. In December 2012, the Rajya Sabha proposed the Indecent Representation of Women (Prohibition) Amendment Bill, which was forwarded to the department-related Parliamentary Standing Committee for consideration. According to revisions recommended by the Ministry of Women and Child Development, the indecent portrayal of women on digital messaging platforms such as WhatsApp and Skype should be made criminal. The revisions to the Indecent Representation of Women (Prohibition) Act, 1986, were based on recommendations from the National Commission for Women and observations from a legislative standing committee (NCW).

The Ministry proposed amendments to the definition of distribution to include publication, licence, or uploading using a computer resource, or communication device, and amendments to Section 4 to include that “no person shall publish or distribute or cause to be published or cause to be distributed by any means any material that contains indecent representation of women in any form”. The draft law also recommends a punishment comparable to that enacted under the Information Technology Act of 2000, as well as the establishment of a centralized authority under the NCW’s auspices. This body will be led by the Person Secretary, NCW, and will include representatives from the Advertising Standards Council of India, the Press Council of India, the Ministry of Information and Broadcasting, and one member with expertise working on women’s issues.

On 27th July 2021, the government had withdrawn the long-pending Indecent Representation of Women (Prohibition) Amendment Bill, 2012 on grounds that the proposed amendments to the 1986 law stem from the fact that it was felt that the amendments were no longer required as the concerns have since been addressed keeping in view new emerging realities under the Information Technology Rules 2021, the Cinematograph Act 1952 and other provisions of the law.

Determining the legality of watching porn in India

Indian citizens have the Right to Life and Personal Liberty under Article 21 of the Indian Constitution. In a case from 2015, the Supreme Court of India 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 own home, which is perfectly legal. Although if it is watched in a private area, watching or storing pornographic content that portrays child pornography, rape, or violence against women is illegal.

In Ranjit D. Udeshi v. State of Maharashtra (1965), the Supreme Court of India established the Hicklin Test to determine whether the possession and sale of an allegedly obscene book constituted obscene conduct under Section 292 of the Indian Penal Code, 1860. While Section 292 states that “a book, pamphlet, paper, writing, drawing, painting, representation, figure, or any other object” is “deemed to be obscene if it is lascivious or appeals to the prurient interest, or if its effect, taken as a whole, tends to deprave and corrupt persons,” it does not provide any tools for determining what is “lascivious” or “prurient,” or has the potential to “deprave and corrupt persons”. As a result, whether an accused was guilty for their acts in connection with a pornographic work or material, such as its possession and sale, as in the Ranjit D. Udeshi case, remained dependent on whether the work or material was obscene or not. Until 2014, the Hicklin Test was the standard rule for assessing whether work, material, or conduct was considered obscene in India. 

The Supreme Court, however, in Aveek Sarkar v. State of West Bengal (2014), rejected the Hicklin Test and instead used the community standard test to establish what constitutes obscenity. Apart from the various provisions of the Indian Penal Code, 1860, the IT Act, 2000 the POCSO Act, 2012 and the IRWA, 1986, this test is still used to determine whether a pornographic activity, work, or material is:

1. Legal because it is in the public interest, science, literature, art, learning, history, culture, religion, or other objects of general concern, or
2. Illegal and punishable because it is offensively obscene or sexually explicit.

In a nutshell, here’s a rundown of what’s legal and what isn’t: –

1. Private adult pornography viewing is legal.
2. Creating or producing pornographic content of any type is prohibited.
3. Forcing any woman of any age, whether your spouse or a friend, to view porn is criminal.
4. Making any male over the age of 18 view porn is legal.
5. It is illegal to watch, make, or share any type of child pornography.
6. Sharing links to pornographic movies on any social media platform, including WhatsApp, Facebook, and Instagram, even in private messages, is unlawful.
7. Watching pornography in a group or in a public location is prohibited.

The take of the Indian judiciary on pornography

Kamlesh Vaswani v. Union of India & Ors (2016)

The petitioner filed a PIL in order to get pornographic content on the internet banned. On August 29, 2014, the bench granted ASG Mr. L. Nageswara Rao’s request thereby directing the government to submit an interlocutory application and writ petition to the Cyber Regulatory Advisory Committee, since this issue had been allocated to the Committee under Section 88 of the Information Technology Act, 2000. The Court granted an interlocutory application submitted by the Supreme Court Women Lawyers’ Association on June 26, 2016. The interlocutory applications requested that the Central Government must order the Ministry of Communication and Information Technology and the Ministry of Human Resources Development to prohibit pornographic websites from operating.

The petition and the associated story 

This ongoing public interest petition at the Supreme Court, filed in 2013 by Indore-based advocate Kamlesh Vaswani (‘the Vaswani petition’ or ‘the petition’), raises the following questions in concern with pornography: 

1. Is it necessary for India to outlaw pornography? 
2. Should those who watch pornography in private be prosecuted as recreational, experimental, exploratory, deviant, or criminal? 
3. Are we to give the State and commercial intermediaries the authority to subject our sexual choices to societal mores as well?

According to Vaswani, the companies who supply us with an internet connection should be accountable for limiting the flood of porn. Vaswani, convinced that the existing law is a band-aid solution to the “growing problem of pornography,” and requested the Supreme Court to strike down several sections of the IT Act, 2000 and order the Indian government to draft a national policy and action plan to address the problem of pornography, as well as enact separate, comprehensive legislation. 

The Vaswani petition goes far in calling for the criminalization of all forms of pornography usage, whether public or private. Without diminishing the importance of the other problems stated, this prayer, which seeks to outlaw and criminalize all forms of pornography use, poses serious threats to our liberty under Article 21 of the Indian Constitution, that must be addressed.

The Supreme Court’s observation 

The Supreme Court of India orally stated that viewing porn in a private room may fall under the Constitution’s right to personal liberty and is therefore legal. Thus, no authority can take away such a right, except by a procedure established by law.

Ryan John Michael Thorpe v. the State Of Maharashtra (2021)

Raj Kundra, the businessman, and husband of Bollywood star Shilpa Shetty had been arrested on suspicions of infidelity and making pornography. Many women had filed complaints with the Mumbai Police Department alleging that they were coerced into appearing in the obscene video for Raj Kundra’s app Hotshots, which is presently owned by a UK business’s alleged owner Kundra’s brother-in-law, Pardeep Bakshi. After a series of arrests and raids, Raj Kundra was arrested. Raj Kundra was charged under Section 420 (cheating), Section 34 (common intention), Sections 292 and 293 of the Indian Penal Code, 1860 the Information Technology Act, 2000, and the Indecent Representation of Women (Prohibition) Act.

Facts of the case 

In the present case of Ryan John Michael Thorpe v. the State of Maharashtra (2021), the petitioner, Ripu Sudan Kundra @ Raj Kundra had actively participated in marketing pornographic films, and along with other accused they used to maintain the Hotshots App through his firm Viaan Industries, circulating/publishing it on social media and earning money from it. The company Armsprime Media Pvt. Ltd. was founded by the Petitioner Ripu Sudan Kundra @ Raj Kundra for this purpose. As a result, the investigating agency filed an application with the learned Magistrate to search Viaan Industries’ office, which was approved. From his mobile phone and SAN device, 51 pornographic films/movies with logos of Hotshots and Bollyfame were seized. The police found e-mail messages on Hotshots App between the Petitioner Ripu Sudan Kundra @ Raj Kundra with Pradeep Bakshi (wanted to be accused) who is his brother-in-law. 

Raj Kundra had stated in his bail application, submitted through counsel Prashant Patil, that the prosecution was left to produce a single shred of evidence linking the software ‘Hotshots’ to a criminal offence. According to the investigation agency, the accused was using the Hotshots app to post and stream obscene information. There wasn’t a single allegation in the whole extra charge sheet against the current petitioner (Kundra) stating that he was actively participating in any of the video shoots, according to the bail petition. The petition stated that it was up to the individual artists to decide whether or not to post their material to the concerned app. According to the bail application, the contents of the complaint did not reveal any prima-facie offence against Kundra.

The Bombay High Court while keeping a stay on the bail plea of the petitioners had observed that the arrest of the petitioners by the investigating officer and their remand to police custody by the impugned order dated 20th July 2021 by the learned Magistrate was within the conformity of the provisions of law and therefore, required no interference. 

Final decision

On 20th September 2021, in the suspected pornography racket case, a Mumbai Magistrate Court had granted bail to businessman and actor Shilpa Shetty’s husband Raj Kundra and his firm, Viaan Industry’s IT head Ryan Thorpe. 

Child pornography : offensive or legal

Whether child pornography is offensive or legal in India has been discussed with the help of two case laws as provided hereunder. 

P.G. Sam Infant Jones v. State (2021)

In the recent case of P.G. Sam Infant Jones v. State (2021), the Madras High Court led by Justice G.R. Swaminathan determined whether child pornography is an offence or not. In the present case, the petitioner had browsed downloaded, and transmitted child pornographic material by using Airtel sim through his e-mail and Facebook Account.

The respondent in the present case mentioned that the NCMEC (National Center for Missing and Exploited Children) is an international NGO that maintains a Cyber Tipline. A Memorandum of Understanding existed between the National Crime Records Bureau (NCRB) of India and NCMEC of the United States, which allows access to the material held by NCMEC. The petitioner was named in a Tipline complaint given to the respondent police. It was also highlighted that the incident occurred about a year ago and looked to be a one-time occurrence. As a result, the petitioner was ordered to surrender his phone, sim card, and other relevant equipment to the respondent.

The High Court’s observation 

The Hon’ble High Court noted that privately watching pornography will not be considered a crime. Also as of now, there is no law that forbids such private activities, and some even argue that they are protected under one’s right to free expression and privacy, guaranteed under the Indian Constitution. However, under Section 67-B of the Information Technology Act, 2000, every act relating to child pornography is punishable, therefore even watching child pornography is illegal.

The Bench distinguished between a one-time consumer and those who transmit, disseminate, show, or distribute in the digital arena, thereby stating that child pornography is a significant issue that requires a firm approach. The Court stated that it is self-evident that the minute one enters digital space, one is subjected to monitoring by either the government or those who operate social networking sites. The Court further added that “if you value your privacy, you have no choice but to avoid such networks. Of course, in today’s world, this is not an option”.

Crl.O.P. (Md) No. 11735 of 2014 v. State (2015)

A reformative judgment was given by the Madras High Court while deciding the case of  Crl.O.P. (Md) No. 11735 of 2014 v. State (2015), which involved a 15-year-old boy becoming victim to sexual harassment by the petitioner, a British National while the former was residing in the Trust run by the latter. While defining the term ‘child sex abuse’, the Court had viewed that intercourse, attempted intercourse, oral-genital contact, fondling of genitals directly or via clothes, exhibition or exposing children to attempt sexual behavior or pornography, and the use of children for prostitution or pornography are all examples of the same. 

Laws playing a modest role 

According to Article 39 (e) (f) of the Indian Constitution, it is the responsibility of the State to ensure that children are not harmed and that they are given the chance and facilities to develop in a healthy and free way. Similarly, Article 45 states that it is the responsibility of the State to give comprehensive care and education to all children, particularly until they reach the age of six. The State is allowed to provide specific provisions for women and children under Article 15(3). Apart from the constitutional rights, Parliament enacted the Protection of Children from Sexual Offence Act 2012 in order to protect children from sexual assault, sexual harassment, and pornography, as well as to establish special courts for the trial of such offences and for matters related to or incidental to them. The Court in the present case noted that despite the aforementioned special rule, the fact remained that, according to NCRB studies, crimes against minors are escalating at an alarming rate.

A reformative viewpoint

The Court in light of the present case made the following socially awakening observations: 

1. It is necessary for the government to make a decision on sex education after comprehensive consideration. In these days of globalization, where every knowledge is available via the Internet, young people are naturally fascinated about sex and are more likely to see pornographic material, which can lead to sexual arousal and the commission of sexual offences against minors. 
2. Children should be educated about sexual solicitations, unwanted touching, and sexual abuses in light of the aforementioned circumstances. This type of hazardous issue is caused solely by a lack of knowledge, which must be rectified. We should not mislead ourselves or our children in the name of culture, values, morals, or traditions in the age of globalization. As a result, the government must make the proper decision on the implementation of comprehensive sexuality education for adolescents and young people.
3. Children can benefit from age-appropriate education about their bodies and sexuality to help them grasp the difference between sexual and non-sexual contact. This type of instruction can help children overcome the feelings of shame and dread that commonly accompany sexual assault and enable them to disclose past or current abuse. Given the overwhelming evidence that child sexual abuse is widespread in India, as well as strong evidence that age-appropriate sexuality education for children can reduce the incidence and severity of sexual abuse, the Indian government’s failure to provide compulsory sexuality education for children in all schools amounts to negligence and a violation of its commitments.
4. Because traditional rules are insufficiently rigorous to have any discernible good consequence, even while the proposal of castration appears barbaric, barbaric offences should undoubtedly attract a barbaric type of punishment. The goal of castration as a punishment is to mess with an offender’s libidos in order to regulate their behavior, removing the sex desire that drives them to commit crimes fueled by alcohol and pornography. Castration has been inflicted on child sex offenders in Polland, Russia, Estonia, and nine states in the United States, including California, Florida, Oregon, Texas, and Washington. South Korea was the first Asian country to criminalize castration.

While dismissing the petition in this case, the Hon’ble High Court viewed that the red corner notice issued to the petitioner by INTERPOL remain stayed, so as to enable him to visit India only to appear before the Trial Court and face the trial.

Conclusion

Pornography can be understood from three distinct perspectives, 

1. One is the moral debate, should I watch or should I not watch? Not only India but every country in the world is engaged, including the freest western nations.
2. The second point of contention is who makes porn and why? 
3. The third question is how much of the pornographic industry is linked to human trafficking and sexual assaults against women.

Although most people would argue that pornography should be outright outlawed, statistics reveal that the restriction on 1000 pornographic websites had no influence on the number of visits to these sites. Instead, the number of people utilizing proxies and VPNs has skyrocketed. This isn’t a promising indication. All of the VPNs used by Indians to access porn are unprotected and unreliable. These free services put customers at risk for security issues including phishing, malware assaults, and identity theft. Therefore, the only way to deal with this situation is to make the general public aware of the dos and don’ts surrounding porn. It is not possible to bring a social change in one day by banning porn websites, instead what can bring a change is to stop misuse of such viewing by starting from your own home. Take a small step to bring a huge change. 

References

1. https://theprint.in/theprint-essential/watching-publishing-sharing-pornography-what-is-a-crime-in-india-and-what-isnt/700179/.
2. https://www.writinglaw.com/laws-on-pornography-in-india/.
3. https://www.legalserviceindia.com/legal/article-914-pornography-as-cyber-crime.html.
4. https://www.indiatoday.in/india/story/explained-indian-and-uk-laws-on-pornography-as-kundra-case-has-a-london-link-1830918-2021-07-21.

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