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Is watching Porn a Crime? – The Legality of Porn Dissemination in India

Porn
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In the modern era, the prevalence of cyber porn or cyber pornography is rising daily and persistently invading women’s privacy owing to misuse of technology, which raises serious concerns with particular regard to female children. The legal protections against these merciless actions and their prevention are there in India, however, it is unclear if they are enough or effective.

Pornography is a way to satisfy a human’s sexual fantasy. Indian society considers sex and pornography immoral since ancient times. Even in modern times, sex is a forbidden subject in Indian society. This is the reason why the question of morality is raised when it comes to making laws regarding pornography. Statistics show the addiction of today’s youth towards adult videos and various sites which provide pornographic content. Various reports state that more than 60 percent of Indian youth fall into such a category.

Though, the Indian government is also trying hard to regulate the use of this pornographic content, by putting a ban on such websites. In India, privately watching porn is not an offense under Indian Penal law. However, India has laid down certain restrictions on watching pornographic content. The Protection of Children against Sexual Offenses Act of 2012 (POCSO) and the Information Technology Act of 2000 (IT Act) are the only two acts that currently address child pornography, women, and other pertinent criminal law issues. Despite the existence of such laws, cyber pornography continues to pose a serious concern, and it is increasingly reaching millions of minors, mostly female youngsters, who are becoming victims.

Defining Porn

Nowadays, pornography is pervasive because of the fastest-growing Internet access trends. Contrary to claims made by producers, owners of pornography do not openly support the abuse of minors both mentally and sexually. However, those responsible for the ongoing rape and sexual abuse of young children may also be held guilty. How pornography should be handled in the modern day is one of the most contentious topics on the Internet.

The administration has expressed concern over the widespread accessibility of pornography on the Internet. Pornography is derived from two Greek words which are Porne and Graphos. Here, the word porne means prostitute and the meaning of graphos is the description of graphics. According to Oxford Dictionary – pornography means printed or visual material containing the explicit description or display of sexual organs or activity, intended to stimulate sexual excitement.

Pornographic content includes any media such as video, picture, or movie which comprises sexually explicit acts which are generally considered indecent in public. In a legal sense, the term pornography can be defined as the depiction of sexual actions through books, films, texts, photographs, or other media in order to produce sexual excitement and fulfill sexual fantasies. The term pornography is used to refer to the portrayal of the act rather than the act itself. In the modern world, the scope of pornography has widened. Pornography can now be categorized into two types i.e, softcore pornography and hardcore pornography. There is only one point that differentiates softcore pornography from hardcore pornography and that is in softcore pornography there is no depiction of penetration whereas hardcore pornography depicts penetration.

Effects of Pornography: There are many negative effects that are caused due to addiction to pornography. Some of these effects are given below:

  • Addiction to pornography can lead to deception in marriage as this content is usually viewed in privacy.
  • Change in behavior can affect the individual or their families. 
  • Mentality towards women is wrong. In pornographic content, women have only one motive which is to meet the sexual burden of men. This affects the mentality of one who is watching this content towards women. 
  • Pornographic content promotes some illegal activities such as adultery. Also, prostitution and other unreal fantasies can lead to dangerous immoral behavior.

Legislations governing Porn

Porn
Image Credits – Dylan de Heer

Privately watching pornographic content is not illegal in India. But there is certain exceptionally sexually explicit content that is punishable under Indian law. The criteria and scope of these activities are given through certain laws which determine whether the content is legal, prohibited, or punishable. These laws include the Indian Penal Code 1860, Information Technology Act 2000The Protection of Children from Sexual Offenses Act (POCSO) 2012, and Women’s Indecent Representation (Prohibition) Act of 1986 (IRWA).

However, neither of these legislations properly define pornography or obscenity in it. This sometimes causes problems in determining whether a person’s activity such as the creation of pornographic content is illegal or not. Additionally, the interpretation of the term “sexually explicit” is also an issue, because it determines the type of punishment the person receives. The following are the legal provisions that are provided by the Indian Government related to pornographic content:

Information Technology (IT) Act 2000 

Section 66(E) of this act contains provisions related to pornographic content. In a legal sense, it covers provisions related to the transmission of media which includes private parts of a person without his or her consent. For this offense, the punishment is either three years of prison or a fine of not more than two lakh rupees, or it can be both. Also, breaching someone’s privacy by sharing such media can lead to a violation of the right to life which is Article 21 of the Constitution of India. This is because the right to privacy is provided as a basic right under the right to life in Part III of the Indian Constitution.

Section 67 of the Information Technology Act, 2000 covers the publication or transmission of obscene material. It defines obscene material 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 for this offense contains a sentence of three years in prison and a fine of up to five lakh rupees. Also, the successive conviction of this offense carries a sentence of up to five years in jail and a fine of up to ten lakh rupees. 

Under Section 67 clause A of this act, depiction of any sexually explicit acts or conduct by publishing or sending anything, is punishable. For this offense, the punishment is up to five years in prison or a fine which is up to 10 lakh rupees. Moreover, Section 67 B deals with pornographic content related to minors. This clause includes the distribution or creation of any photos or media that show minors in an obscene or sexually explicit manner.

Indian Penal Code, 1860

Under Section 292 and 293 of the Indian Penal Code, 1860 it is illegal to sell, disseminate, circulate or exhibit obscene objects which are lustful or corrupt to another person. The punishment for the first conviction is imprisonment of up to 2 years and a fine of up to 2000 rupees, and for subsequent conviction, the imprisonment is up to 5 years and a fine of up to 5000 rupees.

Defamation can also be used as a means of recrimination, by the victims of pornography. Section 499 and 500 of the Indian Penal Code provide a provision for defamation. Section 499 restricts any defamatory assertions against a person made in order to damage his or her reputation. A claim can also be filed by the victim for the same. The punishment for defamation is given in Section 500, which is imprisonment of up to two years or a fine, or it can be both.

Women’s Indecent Representation (Prohibition) Act of 1986

The Indecent Representation of Women (Prohibition) Act (IRWA) was enacted in 1986. This act prohibits advertisements that contain an indecent representation of women. Not only advertisement but it also prohibits the publication of any book, pamphlet, painting, or any other media which includes an indecent portrayal of women. Some revisions in this act were recommended by the Ministry of Women and Child Development.

In this, they suggested that the indecent representation of women on messages platforms such as Skype, Whatsapp, or Telegram should be made illegal. Although, in July 2021 the government had withdrawn these suggestions citing the reason that these amendments are no longer required because these are already included in Information Technology Rules 2021, the Cinematograph Act 1952, and some other legal provisions. 

Protection of Children from Sexual Offences (POCSO) Act 2012

Protection of Children from Sexual Offences Act, 2012 plays a very important role in protecting children from sexual offenses and securing their rights. Under Section 2 (d) of this act, a kid is a person below the age of 18 years and this act aims to save such children from sexual abuse and exploitation. Chapter III of the POCSO Act, 2012 deals with the use of minor children for pornographic content. This act also initiates special court hearings for cases that involve minors. Section 14 of the POCSO Act addresses the punishment for use of minors in pornographic content, which is imprisonment of up to five years and a fine. 

Is watching Porn a Crime?

Pornography

The freedom of watching porn privately comes under Article 21 of the Indian Constitution. In 2015, the Supreme court in a case orally stated that the right to watch porn in a private room falls under the right to personal liberty. However, even if watched in a private area the pornographic content showing child rape, child pornography, or violence against women would still be considered illegal.

In the landmark judgment of Ranjit D. Udeshi vs State Of Maharashtrathe apex court of India established the Hicklin Test. This test was established to determine whether the possession of the allegedly obscene is constituted under Section 292 of the Indian Penal Code,1860. Till 2014, this Hicklin Test was the only rule for determining whether the work, material, or media was obscene in India or not. 

The judiciary has narrowed the definition of obscenity over time. In the Aveek Sarkar case in 2014, the Supreme Court rejected the British Hicklin test in favor of the American Roth test. Obscenity was to be evaluated in the same way that an average person would, using current community standards.

The modern community standards test takes into account societal values that are changing. What was obscene a century or a decade ago does not have to be obscene now.

Conclusion

It can be concluded that in India even a talk about sex is considered immoral and uncomfortable. Due to this mentality, porn is considered something illegal in Indian society. It is considered that even watching porn in private is a highly punishable crime. This mindset of Indian society is considered when laws are made regarding pornographic content. Many reports have shown that Indian youth is highly addicted to porn, which somewhere affects their behavior in a negative way.  

The sites of pornographic content are generally free which invites many security threats in the device such as phishing, trojan horse, malware, etc. Even the government has taken into consideration the question of morality when it comes to making legislation regarding pornographic content. Watching porn is neither a crime nor it is something illegal but still, there are many negative effects that come with addiction to porn, therefore it becomes important to regulate the use of pornographic content.

To regulate the use of this pornographic content not only government or judiciary but people especially the youth should make effort. The general public should be made aware of the negative effects as well as implications of pornographic content. The ban of all porn websites is not an answer to this problem, instead, combined efforts of all citizens as well as regulating bodies are required to bring this problem to an end.

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