In this blog post, Sreeraj K.V, a student of Government Law College, Ernakulam, Kerala writes about pornography and its legal recourse in India. This post covers areas like the definition to the term ‘pornography’, its impact on the society, various remedies for regulation as well as steps taken by the Government in regulating cyber pornography in India.

Introduction

Man is the most rational living being in this world. His attitude changes from time to time. His likes and dislikes change accordingly. Same in the case of his sexual fantasies also. Reports state that around 60% of India’s youth are addicted to various adult videos as well as sites which provide such explicit contents. The Government, with the help of various statutes in this field, is trying to regulate the usage of such X-rated video sites by the people. Only a regulation from the Government will help in reducing this issue as such activities are done only inside four walls by the people. So it is not possible to interfere much in these matters as then a question arises that whether viewing such pornographic contents privately by an individual will affect the society and its people? For that, the answer will be a ‘no’.

The term pornography itself means any portrayal of sexual subject matters for the purpose of sexual satisfaction. It may be present in various Medias such as books, magazines, photography, postcards, sound recording, film, video or video games.[1] In India, we have the Information Technology Act, 2000 and also the Information Technology (Intermediary Guidelines) Rules, 2011 for looking into various aspects regarding the matter.

In the light of various issues regarding the excessive usage and exploitation of such pornographic videos, the Supreme Court observed that appropriate steps must be taken against such websites containing pornography especially child pornography. For this purpose, Section 79 of the IT Act may be adopted. It contains various provisions regarding certain conditions wherein various Internet Service Providers (ISP), and intermediaries are exempted from the culpability of certain uploads done by third parties. It makes an obligation on such intermediaries to exercise “due diligence” and to act according to the orders of the Court and the Government to gain immunity.[2] Section 79(3)(b) states that no exemption will be provided to the intermediaries if they fail “expeditiously” to remove such content within a reasonable period upon the information or notification by the Government or its agencies that such content is being used for unlawful purposes. Under the Information Technology Rules, 2011, it has been stated that the intermediaries must inform users not to host, display, share, upload or transmit any such information that contains pornographic or obscene content which may cause harm mainly to minors.

Nowadays we hear a lot about such incidents where a person intentionally uploads various private photos and images of their known one’s or even of strangers simply for the sake of mental satisfaction as well as for various other unlawful needs. Such acts may be clearly classified as Cyber pornography. Section 67 of the IT Act purely deals with cyber pornography and provides strict penal treatments against such persons who are involved in such acts. The Act of cyber pornography has been banned in many parts of the world but in India, under the Act, it has not been banned but has not been legalized too. Section 67 of the Act states that any publication, transmission of any information which contains pornographic or obscene contents or causing to be published or transmitted, will be punishable with up to 3 years’ imprisonment and a fine of Rs. Five Lakh.

From the above, it may be stated that:

• Viewing cyber pornography is not illegal in India, and its mere download does not amount to any offense.
• Publication of such pornographic content is illegal.
• Possession of such pornographic content is not illegal.
• Transmission of such pornographic content through any electronic medium is unlawful.[3]

There were many plans by the existing Government in banning a large number of porn sites in India. But IT experts calls it a failure due to the reason that nobody including the Government can look into the private matters of an individual and if done, it may result in the violation of his fundamental rights. While referring to the Indian Penal Code, Section 292 deals with any act for the purpose of selling, hiring or publishing any books, pamphlets, paper, writing, drawing or painting of any object, shall deemed to be obscene, lascivious or prurient in nature or may likely to harm any other person, is liable for a punishment for a period of two years along with a fine or both. Section 354A of the Code also provides certain liabilities to a person who exhibits pornographic content to any women against her will. Such provisions state that explicit and exploitative usage of such content may result in certain penal liabilities.

Effects of Pornography

Many surveys reveal that a person who is addicted to pornography has a change in attitude towards himself and his family.

• Pornography which is usually viewed in private often leads to deception in marriage and which may, later on, affect their family life.
• It may lead to adultery, prostitution and many unreal expectations that can result in dangerous promiscuous behaviour.
• Pornography may lead to addiction, escalation, desensitization and acting out sexually by one person.[4]

In one sense or the other, pornography or publishing such explicit, obscene contents of a person without his/her consent can be considered as a pure case of human rights violation. The reason behind such a statement is that the consent of a person plays a major role in such acts. Experts also state that unless such acts involve the non-consent of the other person, it does not violate human rights.[5] Another important issue regarding the topic is child pornography. It was revealed that India is one of the best markets for publication of porn sites and such content mainly relating to child sexual abuses. It was stated in many surveys that children around 12 to 15 years are the primary victims of such inhumane activities. Many internet service providers are still being criticized for not closing down such child porn sites in India. [6]

Conclusion

As mentioned before, our Government planned to take action against around 900 sites in India, which contains porn and such related obscene videos and pictures. But it could not be implemented properly till date because there are no such provisions in any law relating to information technology which states that possession and viewing of such videos are illegal. Thus, the Government can make only a regulation on this matter rather than banning or abolishing it completely. We have to be well aware of that fact that viewing such obscene content creates various false expectations in our life as they are not real. Surveys reveal that people between the ages of 16 to 30 are mostly addicted to such porn sites. So primary steps have to be taken from their home itself. There must be a friendly relationship among the family members so that no one will be addicted to such explicit video sites. Also, various awareness programmes may be conducted for young people so that they can utilise their valuable time effectively rather than investing them in such unproductive materials around them.

Footnotes:

[1] Retrieved on: https://en.wikipedia.org/wiki/Pornography

[2] Retrieved on: http://indianexpress.com/article/explained/background-and-legal-aspects-of-porn-block-on-internet/

[3] Retrieved on: http://blog.ipleaders.in/cyber-pornography-law-in-india-the-grey-law-decoded/

[4] Retrieved on: http://www.cyberlawsindia.net/index1.html

[5] Retrieved on: https://www.quora.com/Why-is-pornography-not-regarded-as-a-violation-of-human-rights

[6] Retrieved on: http://www.ethicalconsumer.org/commentanalysis/humanrights/pornography.aspx