This article is written by Sudarshan Roy who is pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.

What is the status of pornography in India? 

The word ‘pornography’ means the presentation of any sexual activity in any form such as in print, in visual or audio mode, or in any other form for the purpose of one’s sexual satisfaction. This definition is somewhat contradictory to popular notion because whenever we hear the word ‘pornography’, we subliminally in our mind assume that pornography relates to only online medium and that too is restricted in an audio-visual format. But pornography can be displayed in any medium such as books, photography, magazines, and audio recordings etc.

But in general, people consume this kind of pornographic content through the internet and different sites. The government for very long is trying to regulate these sites with the usage of various statutes. In India, we don’t have a specific statute to deal with this subject matter of pornography. 

Rather, we have different statutes and rules which by their own jurisdiction classify different aspects of pornography as offence and prescribes punishment for that. At this point, a very simple thought might be popping up into our heads that why don’t we just criminalize viewing of these kinds of contents? In this article I’m going to discuss about how pornography affects the society at large and what are its legal recourse currently in India and the road ahead. 

What are the laws governing this offence? 

Information Technology Act, 2000

In India, we have the Information Technology Act, 2000 and the Information Technology (Intermediary Guidelines) Rules, 2011 for the regulation of pornographic contents in cyberspace. The Supreme Court has stated that appropriate steps must be taken against websites containing and promoting pornographic contents, especially child pornography.

Section 79 of the IT Act comes into effect in this regard. This provision has certain conditions within which the internet service providers and intermediaries are exempted from the culpability of uploads by third parties. These internet service providers and intermediaries can gain this immunity by properly following up the orders of the government and judiciary. These internet service providers and intermediaries cannot claim immunity if they are not able to remove such contents from their domain within a reasonable time frame given to them according to the order or notification issued by the government or any agent of the government or the judiciary. This provision has been given in section 79(3)(b) of the IT Act, 2000.

Through the IT Rules, 2011, the intermediaries have also been directed to notify its users not to display, upload or transmit any kind of pornographic substance which may cause harm, especially to minors. 

Sec 67 of the IT Act, 2000 deals with cyber pornography and also prescribes punishments for the offenders who intentionally upload or transmit obscene materials of others. Under this provision, the act of pornography has not been criminalized but it has been stated that transmission or publication of any obscene material or pornographic content or cause to publication or transmission of such contents is a criminal offence and has prescribed a punishment up to 3 yrs for violators and a fine of rupees five lakhs.

From the above discussion, it is clear that in our country watching cyber pornography is not illegal and download or possession of such content is also not illegal. Publication of such pornographic substances is illegal and transmission of such a subject matter in any electronic medium is illegal. 

Other Laws

Apart from the IT Act and Rules, the Indian Penal Code, 1860 also provides for the categorization of offences and punishment for that. Section 292 of the act prohibits the sale of obscene material. Obscenity has been defined under section 291(1). It states that any material will be deemed obscene if it is lascivious or prurient or any part of the material has the tendency to corrupt or deprive the people.

The punishment has been defined under section 292(2), according to that, any person involved in the sale, distribution, imports or exports, circulation, public exhibition of any obscene material or lets to hire any obscene material or is involved or receives profits from any business in the course of which he has knowledge or reason to believe that the obscene materials are for the aforesaid purposes or advertise the obscene material or offers to do or attempts to do any of the acts provided in the section that person for the first conviction shall be awarded either simple or rigorous imprisonment extending up to 2 years with a fine that may extend to 2,000. In case of a second conviction, that person may be awarded a sentence of simple or rigorous nature which may be extended up to 5 yrs and with a fine of up to Rs. 5,000. 

Section 293 of the Code provides for punishment of a person who lets to hire, sell, or distribute any obscene object to someone who is lower than 20 years of age. Here it has been stated that such a person shall be awarded imprisonment extending up to 3 years and with a fine that may extend up to 5,000 and this imprisonment can be of a simple nature of a rigorous nature. 

Apart from these two statues, there is the Indecent Representation of Women Act, 1986 which prohibits the representation of women or any body part of her in an indecent manner. It provides that any representation of such a nature will hamper public morality.

POCSO or the Protection of Children from Sexual Offences Act, 2012, is another statute that provides for the categorization of offences and prescribes punishments for sexual offences against children. Apart from sexual assault and sexual harassment it also takes into account of pornography. This statute criminalizes child pornography and provides for punishment. Section 13 provides for the offence of child pornography and section 14 provides for the punishment. Section 13 states that any person who uses any child in any form of media for the acts of sexual gratification shall be committing the offence of child pornography. 

Why should it be made a punishable offence?

Negatives of pornography

It has been observed in many surveys that addiction to pornography may lead to a change in mentality towards others and in behavioral patterns of oneself. Pornography many times leads to problems in family life and often leads to the dissolution of marriage.

Elements like adultery or prostitution get an increase with the increased consumption of these kinds of pornographic substances. Pornography may result in making someone believe in non-realistic sexual behavior and false expectations. Pornography leads to addiction and desensitization which may lead to more crime especially against women. 

Publishing someone else’s obscene images or videos or pornographic substances without the consent of the person is a grave violation of human rights. Child pornography is another reason India needs to regulate and restrict the industry of pornographic materials. In many surveys, it has been stated that India is a huge market for pornographic websites, and a large chunk of the materials available on these websites relates to child pornography and that is a matter of great concern.

Children under the age of 12 to 15 years are majorly the victim of this kind of inhuman activity. Often it has been observed that the intermediaries or Internet service providers don’t take the necessary action for the removal of such material from their domain. 

What measure can be taken to deal with the menace of pornography?

The explosion of the internet has created a behemoth-like menace of Cyber pornography in different forms. There are different statutes as we have discussed that prohibiting the publication and circulation of pornographic substances within their respective jurisdiction watching cyber pornography is not illegal in any of them unless it is child pornography.

The intermediaries are also not liable when they have performed the ‘due diligence’ and they are not involved in the abetment of any kind of publication of obscene material made by the users. The internet is also open for minors. There are no such restrictions and regulations. Minors can easily access pornographic sites and that eventually leads to the increased crime rate against women in society.

The state needs to come up with an exhaustive separate statute to deal with this menace of pornography especially cyber pornography as we do not have any statute specifically dedicated to regulate the area of pornography and cyber pornography.  Social education and awareness are also needed among people, especially among students of young age. All the offences related to pornography should be categorized in a very effective manner and stringent punishment should be prescribed for offences.

Minors are prone to these pornographic mediums and thus they are required to be guided by the elders of the family. Open conversations among civil society regarding this subject are of utmost importance. The government has to come up with up to date mechanisms to cope up with the recent trends of the pornographic industry and to have a mechanism to respond fast enough to crack down on the websites and intermediaries which host such pornographic content upon filing of a complaint. 

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