On 20 July, a magistrate's court in Mumbai remanded Indian businessman Raj Kundra to three-day police custody in what is being touted as "pornography scandal case". Earlier, Kundra was arrested by the Crime Branch of Mumbai Police after his name was allegedly revealed by one of the co-accused during interrogation.
Kundra has been made an accused, along with nine others, in an FIR lodged in February 2021, following a complaint filed by a woman claiming that she was forced to do a porn film after being promised an acting job. The Crime Branch portrayed Kundra as the "key conspirator", who was kept informed about the scripts and production of alleged porn movies that were shared on the app "HotsShots".
Kundra's arrest has resurfaced the debate on the legality of porn in India. Is pornographic content allowed? If not, what is it that can land one in trouble? We explore various penal provisions that deal with pornographic material as "sexually explicit/obscene material" and lay down punishments for the same.
Legal Framework Governing Porn in India
In India, pornographic material is dealt with under the Information Technology Act (IT Act), Indecent Representation of Women Act, and the Indian Penal Code. Apart from general provisions on "sexually explicit" or "obscene materials", the IT Act and the Prevention of Child Sexual Offences Act (POCSO) also have specific provisions prohibiting child pornography.
Interestingly, these laws neither legalise nor prohibit the act of pornography per se. They do not prohibit watching or downloading porn, except child pornography. Only the acts of "publication" and "sharing" of pornographic material are penalised.
Section 67A of the IT Act prohibits publishing or transmission of any material which has sexually explicit acts or conduct in it. Section 67 of the IT Act, just like section 292 of the Indian Penal Code, prohibits publishing or transmission of any obscene material through electronic mode.
Those convicted of an offence under section 67A can go to jail for up to 5 (first conviction) or 7 years (subsequent conviction) and will also have to pay a fine of Rs 10 lakhs
Commenting on the facts alleged against Raj Kundra, Kazim Rizvi, founder of the tech law and policy think tank The Dialogue, told The Quint that Kundra's "intent and involvement" will play a large role in deciding the case. Rizvi believes that prohibition under section 67A can be extended to financing of sexually explicit material as well.
"Section 67 and 67A of the IT Act that deals with ‘publishing or transmitting of material containing sexually explicit act in electronic form’ when coupled with similar reading sections 292 and 293 of the IPC (related to obscene and indecent advertisements and displays) are likely to apply in such a scenario of financing pornographic content for the internet" - Kazim Rizvi
The Indecent Representation of Women Act, on the other hand, prohibits the representation of women or any part of her body in an "indecent form" provided that such representation will injure "public morality" or "morals".
In 2015, the Supreme Court had remarked that watching porn in the confines of one's private space is part of one's right to privacy. Therefore, Indian law on porn doesn't directly infringe upon that right by banning private consumption of porn. However, it indirectly curbs pornography by banning its publication and transmission. Publication or transmission of porn goes beyond one's private space and becomes a matter of public morality or public interest – where the state can intervene.
Complete Ban on Child Pornography
Unlike other "sexually explicit material", merely viewing or downloading of any material containing child pornography is also an offence. Section 67B of the IT Act makes it publishing, transmitting, viewing or downloading child pornography illegal.
The POCSO Act also defines child pornography as using the child in any form of media for sexual gratification and lays down stringent punishments for the same. The maximum punishment one can get for child pornography under POCSO is imprisonment for life.
The Policy Pendulum on Porn Ban
In 2015, a lawyer had moved a plea in the Supreme Court seeking a ban on porn websites arguing that watching porn promotes sex crimes. In light of that petition, the BJP-led government had asked internet service providers (ISPs) to take down as many as 857 websites.
This unilateral "porn ban" created an uproar in the country, with people citing violation of fundamental rights to privacy and freedom of expression as grounds to criticise the move. In response, the government partially rescinded the ban, asking ISPs to unblock porn sites that did not promote child pornography.
But there was another U-turn. In December 2018, the Uttarakhand High Court directed the central government to ban porn websites while hearing a petition concerning the gang rape of a 15-year old girl in Dehradun. The court cited accused's statement, where they had said that they committed rape after watching porn, as a reason to direct the porn ban.
With judicial backing, the Department of Telecom again directed ISPs to block 827 porn websites. Major telecom companies like Jio, Airtel and Vodafone banned many websites from their network including those that are legal in other jurisdictions, and do not apparently host child pornography.
The Implementation Gap
Despite the Uttarakhand High Court's order, and the subsequent stance taken by the Department of Telecom and ISPs, porn remains readily accessible on the internet.
One trick adopted by porn websites to flout the porn ban is to change their domain name or create a "mirror website". Popular porn site PornHub did the same in 2018. The implementation of the ban is also not foolproof as users can access the banned websites on some other browsers such as UC Browser, or use VPN.
Despite the porn ban, the consumption of porn has increased in India. As per statistics released by PornHub in 2019, India features on number 3, only below the US and the UK, on the list of countries with most viewers. A report by Times of India also showed that porn consumption in India peaked by 33% during the COVID-19 lockdown last year.
The proliferation of porn has not only exposed the implementation gap between the policy and the reality, but has also made participants in the porn industry vulnerable to selective policing.
Identifying and tracing the publishers of all pornographic material online sounds like an impossible task for the police. Therefore, the police act only when there's a complaint filed by someone aggrieved by the publication or circulation of certain pornographic material – as in the Raj Kundra case.
It seems that law enforcement agencies are taking cognisance of violations of Section 67A of the IT Act when a complaint is brought to their notice. Therefore, while creating, financing, or publishing porn is an offence, the fact is that much of this industry continues to operate under the radar.
The Fertile Ground for Arbitrary Policing
The legal provisions – sections 67, 67A of the IT Act, Section 292 of the IPC, and Indecent Representation of Women Act – use vague and ambiguous words to define the offence.
The law doesn't tell us the objective qualifications that would make a particular act "sexually explicit" or "obscene". Phrases such as "prurient", "lascivious", "morals", and "depravity", used in these laws are too open ended, leaving it to the law enforcement agencies to interpret them as they deem fit. This may lead to arbitrary policing where selective persons or groups are targeted.
A one-sided interpretation of what counts as "obscene" or "indecent" may subject a person to rigorous search and seizure by investigating agencies. Possibly, even without first checking if any harm has been caused by such publication.
Therefore, the ambiguous and open-ended wording of obscenity laws pose a threat to the fundamental rights to freedom of speech and expression, and privacy.
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