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This article is written by Vanya Verma, from Alliance University, Bengaluru. This article covers all the relevant facts and laws concerning the arrest of Raj Kundra, the husband of famous Bollywood actress Shilpa Shetty and a businessman in pursuance of the pornography case.

Introduction

Raj Kundra, the husband of famous Bollywood actress Shilpa Shetty and a businessman, has been detained on multiple charges including cheating and creating pornography. Many women have complained to the Mumbai Police that they were persuaded to star in explicit content for Raj Kundra’s app Hotshots, which is currently held by a UK firm that purportedly belongs to Kundra’s brother-in-law, Pardeep Bakshi. Raj Kundra was apprehended after a series of arrests and raids.

Section 420 (cheating), Section 34 (common intention), Sections 292 and 293 of the Indian Penal Code, Information Technology Act and the Indecent Representation of Women (Prohibition) Act are the charges under which Raj Kundra has been booked.

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To know more about the Raj Kundra pornography case in brief, please refer to the video below:

Analysis of the case

Raj Kundra was detained in connection with a pornographic film racket and remanded to police custody until July 23. The 45-year-old is suspected of broadcasting pornographic footage shot in Mumbai and the nearby areas through a mobile phone application called Hotshots. According to Mumbai police, Shilpa Shetty has not been discovered to have had any active involvement in the case so far. “We haven’t been able to locate any active Shilpa Shetty roles yet. We’re looking into it. We’ll ask the victims to come forward and contact Mumbai’s Crime Branch, and we’ll take appropriate action, “Milind Bharambe, Joint Commissioner of Police (Crime), stated.

What is Hotshots?

The mobile application in the racket at the centre is a paid streaming app that is no longer available. According to the app’s description, it features “exclusive and original short films, hot photographs, and videos of some of the world’s biggest superstars.” The content is rated 18 plus.

So far, the investigation has shown that Raj Kundra’s Viaan Industries has an agreement with Kenrin, a London-based company that controls the ‘Hotshots’ app and is allegedly involved in producing pornographic films, which is owned by Kundra’s brother-in-law. The shooting was done by Kundra’s company, and the subscription money came under the name of Kenrin, despite the fact that the UK-based company was in charge of the entire operation.

The case concerning the arrest of Raj Kundra

The Mumbai police announced on February 4, 2021, that they had detained five people for allegedly pushing women into pornographic films. They would promise opportunities in web series to these aspiring actresses from all around the country if they came to Mumbai. On the day of the filming, however, they would alter the script and threaten the women, asking them to expose themselves. If the women refused, they would be expected to pay for the shooting preparations.

After the films were shot, the defendants made them available on mobile apps with subscriptions similar to those seen on popular OTT platforms. They would then use social media sites to market. As pornography is illegal in India, this too was against the law.

How and where were these movies shot?

It would generally be a daylong shoot at a leased home on the outskirts of Mumbai, such as Madh Island, according to the police. A minimum of five to six persons would be employed as directors, dialogue writers, location Scouters, and web app developers. According to the authorities, these apps grew in popularity during the lockdown, with some having lakhs of users.

Role of Raj Kundra according to the police

The police investigation had two components. One was pursuing individuals who created the pornographic shows, while the other focused on the ones who broadcasted the clips. Some of these production companies transmit from servers located outside the United States.

The executive of one such UK production house, Umesh Kamat, was detained after it was discovered to be uploading similar content. Kundra was arrested because of his claimed ties to Kamat and the company that posted the pornographic content, according to an officer.

Similar cases pending against Kundra

In connection with a case filed by the Maharashtra Cyber police last year, Kundra asked for anticipatory bail last month in June 2021. The cyber police had filed an FIR in that case as well, alleging that numerous sites were involved in showing pornographic information. The anticipatory bail application is expected to be decided by the court in the coming days.

Key highlights of the case

  • Raj Kundra founded Arms Prime Media Pvt Ltd in February of this year. 
  • Six months later, the business released Hotshot, a mobile phone application that has been dubbed the “porn streaming app” by police. 
  • The app was then sold for $25,000 to Kenrin Ltd., a London-based company run by Kundra’s cousin Pardeep Bakshi. 
  • Kundra resigned from Arms Prime Media in December 2019, however, he used to control the app’s whole functioning through three WhatsApp groups. 
  • Apple App Store banned the Hotshots app in June 2020, while Google Play Store withdrew the app in November 2020. The content was the reason in both cases.
  • In February 2021, Mumbai Police filed a complaint after a woman complained to them about being compelled to shoot a pornographic film. 
  • Two further cases were filed after that, and the Mumbai criminal branch’s property division made several arrests in connection with the matter.

Raj Kundra’s lawyer’s take on the matter

Raj Kundra was arrested on Monday in connection with an alleged pornography case. He’s been dubbed the case’s “key conspirator“. He was later taken to court, where he was placed in police custody until July 23. The case is only the tip of an iceberg in a pornographic film racket, according to the police. In the midst of this, Raj Kundra’s lawyer argued in court that ‘vulgar content’ should not be classified as pornography.

Raj Kundra’s lawyer, Abad Ponda, said it was incorrect to apply Section 67A of the Information Technology Act for sending obscene material in electronic form along with sections of the Indian Penal Code that deal with pornography because the laws consider “actual intercourse” to be “porn” and anything else is to be considered merely as “vulgar content”. 

The lawyer went on to say that an arrest should only be made if the investigation cannot proceed without it. The lawyer stated, “Police detention should be the exception rather than the rule. Arrests should only be made when the inquiry cannot proceed without them. The accused was forced to join the inquiry once he was arrested in this case”.

In conclusion, the lawyer stated that Raj Kundra’s arrest was not made in accordance with the law. The businessman had sought anticipatory bail in the case.

Raj Kundra may now face charges of money laundering and foreign exchange violation

Raj Kundra may be booked under the Prevention of Money Laundering Act (PMLA) and Foreign Exchange Management Act (FEMA)

  • It was reported by the news agency, ANI, that the central agency charged with investigating financial irregularities may bring complaints against Kundra under the Prevention of Money Laundering Act (PMLA) and the Foreign Exchange Management Act (FEMA). According to ANI,  the Enforcement Directorate (ED) could do so “anytime after July 26“.
  • The Mumbai Police will notify the ED, who will investigate the financial irregularities in the case, which also involves a foreign exchange violation. The current case involves the alleged creation of pornographic films and their distribution through several apps.
  • After filing a case, the ED will obtain a copy of the First Information Report (FIR) from Mumbai Police. Before interrogating Raj Kundra, the ED may issue a summons under the PMLA and FEMA.
  • The Mumbai Police’s crime branch stated before a local court that Raj Kundra was profiting from this unlawful activity by charging users of these apps subscription fees.
  • The Mumbai Police Department also informed the court that they believe the proceeds from pornography were used for online betting.

Raj Kundra’s employees turn witnesses against him

According to Mumbai Police sources, four employees of businessman Raj Kundra have turned witnesses against him in the pornography racket case. They went on to say that these employees had given the complete information on the racket’s operation to the Mumbai Crime Branch’s property cell, putting Kundra in even more trouble.

He was detained by the Mumbai Crime Branch on July 19 along with 11 other people on accusations linked to the suspected manufacturing of pornographic videos. His custody has been further extended to July 27, 2021.

On Sunday, the Mumbai Crime Branch’s property cell summoned Gehana Vasisth, a television star and model, and two other people for questioning in connection with a pornographic case. During searches for the porn video case, the Mumbai Police Crime Branch discovered a hidden cupboard at Viaan and the JL Stream office of Raj Kundra in Mumbai’s Andheri. 

Laws dealing with pornography in India

Indian Penal Code, 1860

Sections 292 and 293 of the Indian Penal Code forbid the publishing and selling of obscene books, pamphlets, and other representations that are considered “lascivious or appeals to the prurient interest”, which may include obscene advertising.

Section 292

According to this Section, something is declared obscene if it is lascivious or appeals to the prurient interest. The Section says that anyone who takes part in or receives profits from any business in the course of which he knows or has reason to believe that any such obscene objects are for any of the purposes aforesaid, made, produced, purchased, imported, exported, conveyed, publicly exhibited or in any manner put into circulation is to be punished with on first conviction with im­prisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and also with fine which may extend to five thousand rupees.

Section 293

According to this Section, whoever sells, allows to hire, distribute, display, or circulate to any person under the age of twenty years any such obscene object as mentioned in the previous Section, or offers or at­tempts to do so, must be penalised.

The Indecent Representation of Women (Prohibition) Act, 1986

The Act criminalises the portrayal in any manner of the figure of a woman; her form or body or any part thereof in such a way as to have the effect of being obscene, disrespectful to, or denigrating women, or is likely to deprive, corrupt, or harm the public morality or morals. The offender is to be punished with imprisonment up to two years and a fine of 2000 on the first offence, and on the subsequent offence, with imprisonment up to 5 years in jail and a fine ranging between Rs. 10,000 to Rs 15,000.

Information Technology (Amendment) Act, 2008

According to Section 67 of the Act, anyone who publishes or transmits or causes to be published or transmitted in electronic form any material that is lascivious or appeals to the prurient interest, or if its effect is 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, shall be punished.

Section 67(A) makes it clear that publishing sexually explicit material will result in a penalty.

  • The first offence carries imprisonment up to five years and a fine up to ten-lakh rupee.
  • If you commit the same offence again, the offender can be sentenced to imprisonment for a term up to seven years and a fine of up to ten lakh rupees.

Section 67(B) of the amended Act represents a watershed moment in India’s anti-child pornography movement. This low level makes it clear that not only the printing but also the viewing and possession of pornographic material are illegal.  The penalty is the same as above.

While shooting for adult content is prohibited in India, the government has recently shut a number of pornographic websites. In India, however, there is no particular law that prohibits you from accessing porn websites at home.

Regulation of obscene content over OTT Platforms

OTT platforms such as Netflix, Amazon Prime, Hotstar, and others are subscription-based audio and video streaming services that specialise in streaming feature films, web series, documentaries, and other material. On these platforms, there is also obscene content.

A notification dated November 9, 2020, published under the Government of India (Allocation of Business) 357 Amendment Rules, 2020, gave the Information & Broadcasting Ministry the ability to regulate Over The Top (OTT) Platforms. It is unclear whether this Code will be revised or if the Ministry will pass new legislation requiring these OTT platforms to obtain content certification and approval.

It is also unclear whether the Ministry of Information and Broadcasting would release a strict code of behaviour or a broad framework for OTT services to self-regulate. The issue will become evident only after the rules are announced.

Issues related to obscene content over OTT Platforms

  • Firstly, it is to be decided who would be held liable if any vulgar, profane, or seditious items are made public. Millions of people, for example, express their opinions on a range of topics on YouTube. The Ministry can now remove any seditious or illicit comment, and the platform, i.e. Youtube, will not be held accountable because it is a free media with no control over the content posted there.
  • Secondly, because the internet is largely devoid of laws and censorship norms, content makers can experiment intellectually without the worry of being censored. Furthermore, because they are free of formulaic content generation and recognise public morality norms, OTTs are a relatively new medium for making art. For movies released on the OTT platform, the Central Board of Film Certification does not require a licence (CBFC). The government’s fear of censorship, on the other hand, will stifle the spread of innovative and unconventional information under the new content control legislation.
  • Thirdly, the government will be faced with a tremendous responsibility of monitoring content 24*7.
  • Finally, such unrestricted regulation and changes made without prior consent would be a breach of Article 19 of the Indian Constitution, which protects freedom of speech and expression.

In an era of rapidly changing entertainment media, the government and other stakeholders must work together to create a framework that balances freedom of expression with the need for essential limits to maintain peace and order.

An overabundance of restrictions/guidelines may limit content creators’ creative freedom, affecting OTT platform viewership in the process.

Conclusion

The final outcome of the pornography case involving Raj Kundra is yet to be declared. It may take some time when the public will know if Raj Kundra is guilty and the allegations made against him are true or not. 

References

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