Indian laws on obscenity are quite unusual. One set deals with adult pornography and another with child pornography. Watching or keeping porn video content on a mobile or a laptop is legal, but shooting or uploading it on any website, passing it on to someone or selling it violate several legal provisions. In case of child porn, watching child porn or keeping them on a personal device are also prohibited—under the Protection of Children from Sexual Offences (POCSO) Act, 2012. Some experts find the contradictions relating to adult porn baffling. For one, how do you check the circulation of porn content? Two, as even industry insiders say, if consumption is permitted, production and circulation can never be curtailed.
In instances where police arrested people watching porn at late-night parties, courts have quashed the FIR, holding that watching porn within a private space is no offence under Indian laws. Courts have asserted the same about keeping porn content on phones, laptops or in CD form. One such judgment, delivered by the Rajasthan High Court, related to a case where police had raided a house and arrested four persons, including a woman, for watching ‘obscene’ films on television. The court held that if the ‘obscene’ object is inside a house and not for sale, hire, public exhibition or circulation, the accused can’t be charged under Section 292 of the IPC.
National Crime Records Bureau data confirms the pattern. In 2019, 1,158 FIRs were filed for publishing or transmitting sexually explicit material—banned under sections 67A/67B of the Information and Technology Act. This works out to a ratio of around two persons per 10 lakh population. Of these cases, 249 were disposed of and nobody was convicted. Only 108 cases were registered in 2019 under sections 292, 293 and 294 of the IPC, which ban the sale of ‘obscene objects’. Their status hasn’t been reported. Under the Indecent Representation of Women (Prohibition) Act, 1986, only 23 cases were reported in 2019—18 were sent for trial; 12 resulted in acquittals; the rest remain pending; zero convictions. “There were 557 pending cases too and we got only seven convictions in them. Many are still under litigation,” says a police officer.
One of the reasons why conviction is difficult is that no law deals directly with porn, says Nishant K. Srivastava, founder and managing partner, Actus Legal Associates & Advocates. “Take the Raj Kundra case. The allegations of involvement in ‘production’ and ‘publishing’ of porn as a ‘key conspirator’ are grave ones, yet it will be difficult to get a final conviction for many legal and technical reasons.” Not the least of them the fact that the law approaches various facets in a segmented fashion, via a confusing welter of laws.
A conjoined reading of relevant sections of these laws makes one thing clear: they largely criminalise “production”, “publication”, “transmission” and “sale” of “obscene material”. “Production” is covered only indirectly, by the Indecent Representation of Women (Prohibition) Act. Another confusing aspect is the territorial application of Indian laws. For instance, Section 75 of the IT Act says prosecuting agencies may also implicate persons who committed any offence outside India, irrespective of their nationality. Other laws, however, have no universal jurisdiction. “If I am making a porn film, say, in the US, I will be tried according to US laws, if there are any. However, if I upload it on a website from there, even if US laws allow me to do so, I’ll be prosecuted in India,” says Srivastava.
Indore-based lawyer Kamlesh Vasvani, who filed the first PIL on the matter in the Supreme Court in 2013, says India needs a separate law that defines pornography and deals with all its aspects. His petition, which is still pending, raises the issue of porn content being accessible to minors. “Thousands of such sites are accessible, but the government is sleeping,” says Vasvani. “Income from internet and mobile users runs into billions of rupees every day. This establishes the connivance, conspiracy and malafide intentions of the government. I have also demanded an exhaustive anti-pornography law along with a national policy to tackle porn addiction.”
“The immediate solution is banning all porn sites so that their accessibility to children can be stopped,” says Supreme Court lawyer D.K. Garg.
(This appeared in the print edition as "Sliding Through The Seams")
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