Pornography And Law 303q19

Pornography & Law

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Pornography & Law Chapter I: Introduction Pornography is debatable issue widely discussed among scholars, however new perspectives keep on emerging from time to time. Since issue of pornography revolves around public morality, right to privacy, freedom of speech and expression and need for an order; the definition of pornography varies. Still there is no precise definition which covers its all aspects. The laws regulating pornography are usually regarded as laws regulating obscenity while both are different. The paper seeks to present an outline which clearly differentiates between art, obscenity and pornography. It also attempts to compare the legal status of pornography in countries like India, U.S.A. and U.K. and the legal framework present in these countries to prevent obscenity. Since there is no precise definition of pornography in any legislation sometimes it is considered as subordination of women while some others consider it as an art form. It has become a battle ground for opponents of obscenity and defenders of free speech but there must be some point along the line where the balance has to be found between public upset and individual liberty. The paper also discusses the ban on some specific form of pornography in light of child pornography. The paper ends with addressing the dire need for a legal framework specifically regarding pornography in India and drawing a causal link between pornographic depictions of women, and crimes ranging from harassment to rape.

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Research Methodology 

Objectives

1. To understand the difference between pornography & obscenity. 2. To understand why there is a need to restrict pornography. 3. To analyse the mechanism to regulate pornographic content.

 Nature of Study The nature of the current study encomes a doctrinal research based upon descriptive and analytical methods of research.

 Sources of Data Secondary sources of data, such as books and academic articles, have been used in the completion of the current study. The specific material cited herein are elaborated subsequently.

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Pornography vs. Obscenity Due to the lack of discussion among Indian scholars on the current topic we have to depend much upon the first amendment of US Constitution which is about all-important freedom of speech and expression which covers pornography and takes us to the origin of this debate. In India watching or possessing pornographic material is perfectly legal but distribution, publication, production or transmission of such content is illegal and so this debate will involve US laws mostly and not Indian Laws. Now; pornography is a sex related material typically show men and women naked. It may exist in many forms, in form of movies, in magazines, in pictures. The history of pornography can be traced back to erotica and paintings of renaissance but now it has changed its form. Pornography is a way for some adults to express themselves, make a living or find entertainment. These people are free to buy it and own it, businesses are free to make, publish and sell it and adults are free to participate in it in exchange for a pay check. But not all kind of pornographic content is legal. Pornography loses its First Amendment protections, however, when it becomes obscene or it involves children. At this point, federal and state laws make it illegal to make, sell, own and even look at some of this material. Anyone violating these laws may be fined, sent to jail or both. Generally, obscenity is sex-related material that goes beyond mere nudity. Obscenity remains one of the most controversial and confounding areas of First Amendment law. U.S. Supreme Court justices have struggled mightily through the years to define it. Justice Potter Stewart could provide no definition in Jacobellis v. Ohio1 other than exclaiming: “I know it when I see it.” In that 1964 decision, Stewart also said that the Court was “faced with the task of trying to define what may be indefinable.” Justice Hugo Black expressed his frustration with determining whether certain pornography could be prohibited under the First Amendment when he wrote in Mishkin v. State of N.Y2.: “I wish once more to express my objections to saddling this Court with the irksome and inevitably unpopular and unwholesome task of finally deciding by a case-by-case, sight-by-sight personal

1 2

378 U.S. 184 (1964) 383 U.S. 502 (1966)

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judgment of the of this Court what pornography (whatever that means) is too hard core for people to see or read.” After grappling with the obscenity problem in many cases during the late 1950s and early 1960s, the Supreme Court laid out “basic guidelines” for jurors in obscenity cases in its 1973 decision Miller v. California3. These include:  Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest.  Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.  Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. The Court reasoned that individuals could not be convicted of obscenity charges unless the materials depict “patently offensive hard core sexual conduct.” This means that many materials dealing with sex, including pornographic magazines, books, and movies, simply do not qualify as legally obscene. Even more fundamentally, nudity does not equal obscenity. The Supreme Court recognized this in Jenkins v. Georgia4, when it ruled that the film “Carnal Knowledge” was not obscene. Justice William Rehnquist wrote in that 1974 case that “nudity alone is not enough to make material legally obscene under the Miller standards.” A most troubling aspect of obscenity law concerns the application of community standards for defendants who ship materials of a sexual nature to different parts of the country. Should a defendant in California be subject to the mores of a more conservative locale? The Court in Miller said that it was constitutional for different communities to articulate different community standards in obscenity cases. “To require a State to structure obscenity proceedings around evidence of a national community standard would be an exercise in futility,” Chief Justice Warren Burger wrote, “Nothing in the First Amendment requires that a jury must consider

3 4

413 U.S. 15 (1973) 418 U.S. 153 (1974)

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hypothetical and unascertainable ‘national standards’ when attempting to determine whether certain materials are obscene as a matter of fact,” Burger continued. “It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas or New York City.” A pressing legal issue still to be resolved is whether federal law can apply local community standards to the global medium of the Internet. The Child Online Protection Act applies local community standards in determining whether material is harmful to minors. The 3rd U.S. Circuit Court of Appeals struck down the law in June 2000, writing that “Web publishers cannot restrict access to their site based on the geographic locale of the Internet visiting their site.” In May 2002, the Supreme Court vacated the 3rd Circuit’s ruling in Ashcroft v. ACLU 5, saying that the federal appeals court jumped the gun by invalidating the law based on the communitystandards criterion at the early stages of litigation. However, several justices expressed uneasiness with applying local community standards to the Internet. For example, Justice Stephen Breyer wrote in his concurring opinion that “to read the statute as adopting the community standards of every locality in the United States would provide the most puritan of communities with a heckler’s veto affecting the rest of the Nation.” After the Supreme Court’s initial ruling, a federal district court granted a preliminary injunction preventing enforcement of the law pending a full trial. The 3rd Circuit affirmed, as did the Supreme Court in Ashcroft v. ACLU II, (2004). “The Government has failed, at this point, to rebut the plaintiffs’ contention that there are plausible less restrictive alternatives to the statute,” Justice Anthony Kennedy wrote for the Court. “Substantial practical considerations, furthermore, argue in favor of upholding the injunction and allowing the case to proceed to trial.” The case returned to district court for a full trial in fall 2006. In March 2007, the district judge released his opinion striking down COPA. “Perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection,” wrote Senior U.S. District Judge Lowell Reed Jr. in ACLU v. Gonzalez6.

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535 U.S. 564 (2002) 478 F.Supp.2d 775 (E.D. Pa. 2007)

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In July 2008, a three-judge of the 3rd Circuit invalidated COPA in ACLU v. Mukasey7, finding that it did not strict scrutiny because filtering presented a less speech-restrictive alternative. The Supreme Court refused to review this decision in January 2009. As of now, there is no precise definition of obscenity and most of it remains subjective and can’t be objectified. What is obscene to one may appear erotic to someone else and is subjected to viewer’s review. Now, if we talk about child pornography, in almost every part of the world it is considered illegal. In 1982, the Supreme Court ruled in New York v. Ferber8 that states could prohibit child pornography even if somehow the material in question did not meet the Miller obscenity standard. The high court noted that a work taken as a whole could have serious artistic value but also “embody the hardest core of child pornography.” The high court determined that the state had a compelling interest to prevent the sexual exploitation of minors in the making of child pornography. The Court called such an interest one of “suring importance.” The Court did recognize that child-pornography laws could be applied in a heavyhanded way: “Like obscenity statutes, laws directed at the dissemination of child pornography run the risk of suppressing protected expression by allowing the hand of the censor to become unduly heavy.” In the 1990 case Osborne v. Ohio9, the high court ruled that a state could punish even the private possession and viewing of child pornography. The defendant argued that the state was punishing a thought crime, but the majority of the Court disagreed. “Rather, Ohio has enacted … [the law] … in order to protect the victims of child pornography; it hopes to destroy a market for the exploitative use of children.”

7 8 9

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Legal Framework in India In the legal discourse pornography is missing as a category except as an aggravated form of obscenity (See Ranjit Udeshi v. State of Maharashtra10). In this case the obscenity of Lady Chatterley’s lover was on trial, and it was held that the book as per the Hicklin test is obscene since it has the potential to deprave and corrupt by immoral influences. In essence the judgment deals with slang and colourful language and it was held that there was not enough preponderance of art or social purpose in the text. The judgment does make reference to pornography as “dirt for dirt’s sake” further explained as “libidinous writings of high erotic effect unredeemed by anything literary or artistic and intended to arouse sexual feelings”. It is this judgment that establishes the Hicklin test as the law to be followed in independent India as well. In the recent fairly progressive judgment on M.F. Hussain’s painting, this definition was reiterated, giving some degree of distinction to the category of pornography apart from it being an aggravated form of obscenity and to say that it is a class of objects, images, paintings, videos designed for sexual arousal, while other material which may or may not be obscene is layered with other meanings (aesthetic, patriotic, narrative). But as such it is not a much more evocative definition than “dirt for dirt’s sake”. Does this missing descriptive category assist in the rampant circulation of pornography, either online or offline? But perhaps the more interesting question to ask is how does the legal discourse sidestep the question of pornography, while minutely examining material that could be described as obscene. This intensity of the legal gaze is obvious than in the judgments on obscenity of film, books, magazines (in Indian law) where the material is minutely examined for traces of obscenity. In the legalistic drive to categorize and label, the court has also drawn fine distinctions between obscenity and vulgarity stating that – “A vulgar writing is not necessarily obscene. Vulgarity arouses a feeling of disgust and revulsion and also boredom but does not have the effect of depraving, debasing and corrupting the morals of any reader of the novel, whereas obscenity has the tendency to deprave and corrupt those whose minds are open to such immoral influences.”11 This case deals with a fiction story published in a relatively popular magazine Prajapati about a 10 11

AIR 1965 SC 881. Samaresh Bose v Amal Mitra AIR 1986 SC 967.

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character called Sukhen whose slide into the life of decadence and squalour is narrated in first person. Sukhen hates his teachers, hypocritical politicians and is often violent or at least regarded as a goonda by others. This story of all those encountered by the law seems to be indeed the most erotic and fascinating – here is an excerpt of the court’s description of the story/novella “Seeing Shikha in that position with the butterfly on her palm and Shikha trying to fix the severed wing in its place in the body of the butterfly, Sukhen is reminded of what happened to Zina, a daughter of one of the officers of the factory at the picnic party of the factory owner and its big executives. Sukhen re how at that party Zina, a girl of about 14 years of age was being fondled by the elderly persons holding high posts in the factory and whom Zina would call 'Kaku' (Uncle). Sukhen also recalls that how he thereafter had taken Zina away from those persons to a surgarcane field and had an affair with her there. This part of the affair with Zina in the sugarcane field had been considered to be obscene. Sukhen feels that the butterfly resting in the palms of Shikha resembled Zina in the sugarcane field while she was there with him. After ing this incident Sukhen turns to Shikha and goes near her. There he notices Shikha's dress and he finds Shikha had only a loose blouse with nothing underneath and a good part of her body was visible and there is some description by Sukhen of what was visible and of his feelings on seeing Shikha in that position. Sukhen's kissing Shikha and going to bed with Manjari, his friend's sister, are other parts of the book considered obscene. The affairs of Sukhen's 'Mejda' (second elder brother) with the maidservant's daughter and Sukhen's description of the same have also been hold to be obscene.” In the same judgment, pornography was described a little bit more in the words of the High Court judge who held the book to be obscene, and the Supreme Court overruled his decision. The High Court judge stated that the book is in fact pornography – “Pornography it is and with all the gross taste not because it has sacrificed the art of restraint in the description of female body and also because in some part it has indulged in complete description of sexual act of a male with a female and also of lower animal.” In the Supreme Court judgment it was held that the judge must apply his mind disionately to the question of whether the book is obscene, and not allow for personal preference or subjective element in the subconscious mind to influence his decision. Eventually while deciding that the book was indeed not obscene, the court justified this by saying that the book would shock readers rather than deprave them, consequently serving as a moral warning for 8|Page

all the sins and vices described. The decision of the court to not ban the book is also buttressed by interventions of scholars from Jadavpur University in of the book and the moral stand it takes eventually. It is also perhaps relevant that Sukhen, the main character is on his way to being reformed, from his restlessness, sexual drives and finding solace and peace with himself, especially with the help of his new lover Shikha, when he gets injured in violent clashes between rival political parties and dies. It is from this bleak ending that the court salvages the moral resurrection of this book as not obscene – the dire punishment of those who succumb to sexual and other vices is most evidently laid out. The decision in which there was an appeal to the courts to declare that pre-censorship of cinema in India is unconstitutional is K. A. Abbas v. Union of India and Another12. This appeal was not accepted and it was held that pre-censorship in cinema is necessary because of the impact that cinema has on the senses, unlike other mediums such as books, magazines, paintings, etc., – “with trick photography, vista-vision and three dimensional representation thrown in has made the cinema picture more true to life than even the theatre or indeed any other form of representative art”. The decision relies on Mutual Film Corporation v. Ohio13, in spite of an acknowledgement that this decision was no longer relevant to American jurisprudence that does indeed give protection to cinema as well under the First Amendment (freedom of expression). The description of cinema in Mutual v. Ohio is probably the most indicative of the fear and suspicion with which the image and especially the moving image as perceived in law. Cinema is likened to magic and sorcery – it is said that “indeed (moving pictures, cinema) may be mediums of thoughts, but so are many things, so is the theatre, the circus and all other shows and spectacles. Rather than being organs of public opinions, of ideas and sentiments, published and known, vivid, useful and entertaining no doubt, but as we have said, capable of evil.” Echoing this general distrust, it was held in K.A. Abbas that the reason for treating cinema or moving image differently is that “the motion picture is able to stir up emotions more deeply than any other product of art. Its effect particularly on children and adolescents is very great since their immaturity makes them more willingly suspend their disbelief than mature men and women.”The justification of 12 13

AIR 1971 SC 481. 236 U.S. 230 (1915).

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censorship based on the paternalistic role of the State that must protect the infantile public is often repeated in Indian jurisprudence on obscenity, not only as a rationale for classification of material but also for the banning and censorship of different material. In the introduction to The Public is Watching: Sex, Laws and Videotapes, Lawrence Liang states that rather than giving an of censorship as incursions into the right of freedom of expression or receiving information, perhaps it is more useful to have a productive of censorship. This is inspired from Annette Kuhn’s work on early British cinema and the linkages she draws between discourse around birth control and censorship paradigms. Annette Kuhn’s emphasis on the productive discourse of censorship allows for the shift away from looking only at the content/material that is to be censored to the forces, institutions, notions, ideologies that are pulled into play and are produced for censorship to take place; to move away from a straight forward of power. Kuhn says – “To question this model is by no means to deny that censorship has anything to do with power. On the contrary, what I want to suggest in fact is that an understanding of power as a purely prohibitive gesture - especially where the object of prohibition is taken to be the representation of some preexisting reality - does not go far enough, and may actually inhibit our understanding of how, and with what effects, the powers involved in film censorship work. The prohibition model of censorship is usually associated with a further assumption: that censorship is something that takes place within certain organisations, especially in organisations with an explicit institutional remit to censor.”14 Liang takes this thesis further to state that the prohibitive idea of censorship doesn’t allow us to see that the law is building a theory of cinema, of spectatorship and the idea of the public – “The law of instance, is not merely interested in prohibiting a particular kind of ‘seeing’, but also equally interested in suggesting the proper way of seeing.” In other words, the productive project of law is also about a discursive crafting of the ideal viewer of cinema – where he (and this ideal is not inclusive of she) will view cinema, what he will see and read from it. Hence, each judgment that lays down the meaning of an object – whether Bandit Queen and Prajapati as not erotic but shocking and containing a moral regarding social evils (of vice, alcohol and caste violence) or

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Annette Kuhn, Cinema, Censorship and Sexuality, Routledge, London, 1988.

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Hussain’s painting Bharat Mata as not erotic/obscene but as patriotic, is also stating that this is what the ideal viewer/spectator would see – this is the meaning that is attached to the image (like a caption) with which it must be read. The court has a heavy investment in the question of aesthetics and especially narrative as is evident in the decision on Shekhar Kapur’s Bandit Queen (Bobby Art International & Ors. v. Om Pal Singh Hoon & Otrs 1996 AIR (SC) 1846). In Bandit Queen, Phoolan Devi is raped and walks through the street of the village, naked. This caused much consternation and led to the case coming up before the court. Aesthetic opinions on the film varied – even as Arundhati Roy described it as the ‘great Indian rape trick’15 the court held that it is a film that attempts to show the reality of a social evil. Consequently it must show that social evil in the film. The narrative demands that the rape sequence that puts Phoolan Devi on the path to becoming a cruel, vengeful dacoit is essential – “in aid of the theme and intended not to arouse prurient or lascivious thoughts but revulsions against the perpetrators and pity for the victim.”16 Perhaps the most important decision in this regard, that characterizes the slippage between obscene and pornographic objects, is the case of Pratibha Naithani v. Union of India17. The court was called upon to decide whether English movie channels (like HBO and Star Movies) should be pulled off the air for broadcasting adult content, and what controls should be put on the channels (censoring bad language, timings of adult movies, etc.). This case exemplifies the blurry borders of obscenity as a category – whereby innocuous objects are pointed at, as aspects of a sleazy modernity that are separate from Indian culture, and thereby rendered obscene. Indian culture plays an important referent role in most of the judgments on obscenity – to answer the question of what affect is produced in people by allegedly obscene objects and sometimes to emphasize the existence of erotic, sexual texts within Indian culture that are not found objectionable and point to a tradition of eroticism that should be taken into .18

15

Arundhati Roy, The Great Indian Rape Trick. Available online at http://www.sawnet.org/books/writing/roy_bq1.html 16 Bobby Art International & Others. v. Om Pal Singh Hoon & Others 1996 AIR (SC) 1846. 17 AIR 2006 (Bom) 259. 18 Raj Kapoor’s popular film Satyam Shivam Sundaram too came up before the law for deciding whether it is obscene or not (Raj Kapoor v State AIR 1980 SC 258). This judgment also brings into play the references to India’s cultural heritage of the Khajurahos and the Kamasutras that play a greater role in the public discourse and discomfort around the shifting lines of obscenity.

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Subsequent judgments have dealt with as varied objects as newspapers and their erotic content, a documentary film by Anand Patwardhan which contains a scene of an aphrodisiac being sold and eventually M. F. Hussain’s painting Bharat Mata. This painting depicts India in the shape of a nude woman distressed or grieving and was put up on a website for auctioning for a worthy cause. However, this led to a case about the painting and the court eventually decided that it was not obscene in one of the more progressive judgments about obscenity in India. The purpose of this short of obscenity jurisprudence in India is perhaps merely to point at how various objects, most of them barely obscene and innocuous, have been examined by the law in much detail. It is this detailed and minute examination that is intriguing. Pornography itself has very blurred boundaries – as various objects slip into this category, whether it is Hollywood films with very minor sexual content, soft porn films often called blue films, BF or neela chalan chitre, films like Choker Bali that are circulated in cinema halls that are meant for blue films.19 Soft porn itself points to how there exists various gradations of material – some of them marked only by slang, suggestive language, minimal dressing and references to sexual activity rather than sexual explicitness (nudity, genitalia or sexual activity). Hard core pornography is circulated largely through CDs, DVDs in video parlours and piracy markets and through the Internet; it ranges from material from Europe and America and a smattering of Indian pornography which is mostly heterosexual. Amateur pornography or sexually explicit material which is made and put online either as part of the porn industry, which is not very large especially in comparison to the global North, or by people themselves, is a relatively new phenomenon assisted by digital technologies and the Internet. In the last decade, the leaking of such material, and consequently the swarm of moral, ethical, social dilemmas that have arisen has led to most of the ‘scandals’. It is these scandals that are literally pushing the category of pornography out of the grey zones of being a public secret; out of rampant and unexamined illegality into the realm of the law – its imperatives, violence and descriptive plenitude.

Ratheesh Radhakrishnan, “Soft Porn and the Anxieties of the Family”, Women in Malayalam Cinema: Naturalising Gender Hierarchies (Ed. Meena T. Pillai) Orient Blackswan, 2010 19

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Regulation on Pornography The Supreme Court said it last year that they want immediate steps taken to block websites with pornographic content, especially those featuring children. The court asked the Department of Telecommunication (DoT) about the steps which can be taken in this regard. A bench headed by Justice B.S. Chauhan asked the Union Ministry of Communications and Information Technology to take immediate action because pon increses crime against women. The court was hearing a petition filed by advocate Kamlesh Vaswani, who pleaded that although watching obscene videos was not an offence, pornographic sites should be banned as they were one of the major causes behind crimes against women. "The absence of Internet laws encourages people to watch porn videos and over 20 crore videos or clippings are freely available in the market, which have been directly ed from the Internet or copied from video CDs," the petition stated. Legal experts say the Information Technology Act does not make it illegal to view adult porn but watching child porn is an offence and the law applies to "whoever creates text or digital images, collects, seeks, browses, s'' child porn. Referring to Section 67B of the IT Act added in 2008, which prescribes punishment for involvement in sexually explicit online or electronic content that depicts children, cyber law expert Pavan Duggal said: "The problem is that this law has never been invoked yet and till date there has not been any conviction." The Centre had earlier told the SC that it was difficult to block international porn sites and sought time to consult various ministries in order to find a solution. The court criticised the Centre for taking such a long time in dealing with a serious issue, while granting it time to devise a mechanism to block such sites, particularly those containing child pornography. The petition pointed out that the sexual content that children are accessing today is far more graphic, violent, brutal, deviant and destructive, and has put the whole of society in danger as well as posing threats to public order in India.20

20

http://www.dailymail.co.uk/indiahome/indianews/article-2509509/Porn-sites-cause-crime-women-Supreme-Courtdemands-immediate-action-create-porn-free-India.html

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In a petition currently pending before the Supreme Court of India, an Indore-based lawyer – Kamlesh Vaswani – argues that pornography greatly harms contemporary Indian society. It is said that the internet allows access to extremely graphic, violent and brutal forms of pornography that in turn lead to the commission of aggravated sexual offences against women and children, and a host of statistics are cited in of this fact. Mr. Vaswani feels that existing provisions within the Information Technology Act meant to keep internet porn in check fail to do so, since the Act is primarily meant to promote e-commerce and e-governance. He therefore prays that these provisions (namely Sections 66, 67, 69, 71, 72, 75, 79, 80 and 85) be declared ultra vires of the Constitution, and a separate legislation, National Policy and draft action plan be formulated to curb the problem once and for all. In addition, Mr. Vaswani prays that the watching/sharing of pornographic videos be treated as non-bailable cognizable offences.21 On a similar note, a petition pending before the Rajya Sabha Committee on Petitions laments the corrupting influences exerted by internet porn over Indian youth and states that it leads to several psycho-physical problems like sexually transmitted diseases and sexual deformities. It also argues that ‘Cyber Pornography’, which has been made more accessible by advanced technology, leads to sexual exploitation of children. To address the problem, the petition asks that:  The IT Act be amended, criminalizing the production, distribution and viewership of hardcore/extreme pornography  Porn-filters be provided free of cost by the Government to PC owners and cyber cafes  ISPs be compelled to block internet porn  Comprehensive guidelines be issued by the Telecom Regulatory Authority of India to service providers in order to curb the viewing of internet porn on mobile devices  A Cyber Police Force be established under the National Investigation Agency This petition is currently under consideration by the Committee, pursuant to which the Committee will call for formal comments from the concerned Ministries/Departments based on its findings. The Ministries/Departments will then either take action based on the Committee’s findings, or revert with reasons as to why such action is untenable.22

21 22

http://sflc.in/india-to-ban-internet-porn/ Ibid

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Both the above petitions seek to put an end to the perceived menace of internet porn in the country, albeit through very different means. Where Kamlesh Vaswani proposes an outright ban on all pornographic material, criminalizing its viewership in the process, the petition before the Rajya Sabha Committee envisages a somewhat reserved approach involving criminalization of the more extreme varieties of internet porn, backed by filters and ISP-level blocks. As the Supreme Court and the Rajya Sabha Committee deliberate over these petitions and contemplate possible courses of action, it would do well to take a brief look at the current legal treatment of internet porn in the country.23 While there are no direct references to the term ‘pornography’ under any Indian legislation, it indirectly finds mention in several. Section 292 of the Indian Penal Code (IPC) prohibits the production and distribution of any material that is deemed obscene. As per the Section, any material is deemed obscene if it is ‘lascivious’ or ‘appeals to the prurient interest’, or if it tends to deprave or corrupt any person likely to come across such material. Similarly, Sections 67 and 67A of the Information Technology Act (IT Act) prohibit the electronic publication of obscene and sexually explicit material, and the Indecent Representation of Women (Prohibition) Act (IRWPA) prohibits the production and distribution of material, where women are depicted in an indecent manner. The term ‘indecent representation of women’ is defined by the IRWPA as the depiction of women in such a way as to have the effect of being indecent, derogatory or denigrating women, or is likely to deprave, corrupt or injure public morals. Contraventions of the above provisions are punishable with varying of imprisonment and fines. Conspicuously exempted from the list of punishable offences however, is private viewership of pornographic material. This means that while an Indian citizen is barred from producing, distributing or publishing pornographic material in any manner, he would be perfectly within his rights when accessing it in his personal capacity. However, the production, distribution and even viewership of child pornography is heavily punished by the Information Technology Act and Protection of Children from Sexual Offences Act.24 There have been several instances, where the Government of India has blocked certain websites from public access – reportedly on the basis of complaints received from the general public. For 23

Ibid

24

Ibid

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instance, a popular erotic web comic Savita Bhabhi, which followed the sexual escapades of an Indian housewife was blocked in 2009 pursuant to orders from the Department of Telecommunications. Again, June 2013 saw the blocking of a series of online forums and image boards with pornographic content, though some of the blocked websites also had non-pornographic content. These orders are issued directly to the Internet Service Providers, yet they do not cite any reasons for the block or specify the particular provisions of law under which the orders are issued. According to a report that appeared on a national newspaper in June 2013, DOT officials claim that the Department is merely following orders issued by the Cyber Security Co-ordination Committee and hence cannot talk about the specific reasons behind the blocks. Interestingly though, there is no such entity as the Cyber Security Co-ordination Committee in existence in India, which means the reasons/authority behind the DOT’s orders remain unknown.25 This istrative lack of clarity might be traced back in part to the very nature of the internet – which poses significant challenges to any attempt at regulation of content – coupled with the general unfamiliarity on part of a majority of Indian public officials regarding the internet and its functioning. Further, as the internet is a global network that spans multiple trans-national jurisdictions with widely differing laws, pornography that is legally distributed under the laws governing the distributor might be illegally consumed under laws governing the consumers. United Kingdom on the other hand prohibits the publication of all obscene material under the Obscene Publications Act, where obscenity is understood in consonance with J. Cockburn’s test laid down in the 1868 House of Lords decision in R v. Hicklin (“whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such influences, and into whose hands a publication of this sort may fall”). Aside from the prohibition on publication of obscene material, recently proposed changes to UK law will – if implemented – mandate ISPs to block access to pornographic websites unless customers specifically request access. Though the law itself has yet to be amended to this end, this ‘default-on’ filter mechanism has already been deployed by several ISPs. In addition, even the possession of ‘extreme pornographic images’ i.e.

25

Ibid

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depictions of sexual acts that threaten life or involve risk of serious injury, is now a punishable offence under the Criminal Justice and Immigration Act of 2008. 26

26

Ibid

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Conclusion Those who fear censorship of pornography conjure up the slippery slope argument that if we give in to this we will have to lose our other freedoms. They also argue that if you drive this underground by making pornography illegal you will get a scenario similar to that of the prohibition period in American history. But to say that pornography has no effect on the viewers and on society at large is a blatant ignorance of the facts on the ground. In India, distributing pornography is illegal. However, enforcement is extremely lax and pornographic materials are easily available in public places. Softcore and hardcore pornography movies/photos are easily accessible through magazines, films, or Internet. The law states that possessing and watching pornographic materials is legal, but production and distribution are prohibited. While internet porn is regulated across jurisdictions in multiple ways spanning an entire spectrum in of severity, such widely differing legal treatment of one global network foreseeably gives rise to several istrative challenges, the least of which is ensuring compliance with local laws. Factoring in the relative ease with which restrictions that limit access to any online content may be circumvented, one cannot help but wonder if a blanket-ban on internet porn as envisaged by the previously mentioned petitions is likely to have any effect on the actual viewership of pornography. Further, any attempt at bulk censorship is also certain to inflict collateral damage in of unnecessary censorship of content meant for legitimate public good. This has already been demonstrated to be a very real possibility when UK’s porn filters inadvertently blocked access to a number of sexual education/medical websites. More importantly, criminalizing the private viewership of internet porn will compromise the citizens’ right to privacy, as ensuring compliance with such laws would involve monitoring online activities of citizens. This could result in the establishment of highly intrusive monitoring mechanisms, adding significantly to the Government’s surveillance avenues and the possibility of abuse of power by enforcement agencies.

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Bibliography  Rajak, Brajesh, Pornography Laws: XXX Must not be Tolerated (2011)  http://sflc.in/india-to-ban-internet-porn/  http://www.dailymail.co.uk/indiahome/indianews/article-2509509/Pornsites-cause-crime-women-Supreme-Court-demands-immediate-actioncreate-porn-free-India.html  http://www.cyberlawsindia.net/index1.html  http://indianexpress.com/article/india/politics/cant-ban-pornography-oninternet-govt-to-sc/  http://www.shmoop.com/free-speech/miller-v-california-obscenity.html  http://civil-rights.lawyers.com/pornography-obscenity-and-the-law.html  http://www.firstamendmentcenter.org/pornography-obscenity

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