The ban on porn in India is interesting in many ways – for some, it is a way to break through any dependency and addiction, while for some others it has become a lesson on how to use VPNs. The idea behind the porn ban in India is clear – the government wants to prevent sexual violence, if any, depicted in pornography from trickling down into violence against women in India.
Whether it is working is another matter altogether. Whatever your views are, you will agree that the recent prohibition on porn websites does not seem to be tormenting Indians as the Department of Telecom might have predicted. The easy-to-bypass ban has invited mockery from technology leaders and personalities.
There does seem to be a general panic feeling among Indians that, perhaps, the involvement of the Uttarakhand High Court makes watching porn a crime. The answer is rather simple – watching pornography will not make you a criminal. We spoke to cyber law experts in the country to see the ban from a legal lens, and explore how the government can actually hope to achieve what it wants to i.e. ending sexual violence stemming from porn.
Dr. Karnika Seth is a Dehi-based cyber law expert and the co-founder of legal consulting firm Seth Associate as well as cyber litigation firm Lex Cyberia.
Firstly, Dr. Seth clarifies that watching porn in itself in not a crime unless the content you’re watching represents child sexual abuse. Publishing or circulating media related to your personal sexual encounters or those of others is punishable by law under the Sections 67 and 67A of the IT Act, 2000 as well as Section 292 of IPC.
Further, since watch porn per se is not illegal, using workarounds such as VPN will not land you in any legal trouble, “as per extant law“, she added. But currently, the administrators or proprietors of porn websites, social media accounts, and groups for sharing pornographic content, and ISP are held responsible and penalized under the existing law – if their negligence can be proven.
The original petition in favor of a complete ban on porn, which was filed by Kamlesh Vaswani, is currently awaiting a decision by the Supreme Court and although the government had blocked access to the 857 sites listed by the petitioner in 2015, sites other than those hosting child pornography were unblocked following outrage on social media.
The initial order to block websites was “basically in obedience to the observation of the Supreme Court where the court asked the department to take action on the list of alleged porn sites“, said IT Minister, Ravi Shankar Prasad, had said at the time. The 2018 ban applies to all jurisdictions in India, until it is annulled by the Supreme Court.
Seth does not favor a complete ban but says “the law needs to be amended under Section 67, 67A of IT Act, 2000“. She adds that while adults can store media for “personal use“, given there’s consent involved, any form of transmission is punishable under aforementioned sections of the IT Act, 2000.
Simultaneously, she suggests that the government needs to rethink this blanket approach. “Such porn which is extreme pornography, child porn, gang rape videos should be banned,” Seth said.
“In my view, parents need to block adult porn from their kids devices by using software/filtering routers/Wifi systems.” – Dr Karnika Seth
However, research shows that teens do not really have a problem outpacing their parents in bypassing any methods used to block porn or other sites.
Lastly, Seth said that like in the US, “Section 67 and Section 67A of IT Act should be amended to allow publication and circulation of adult content which is being circulated even by social networks/messaging platforms” in India.
Apar Gupta is the Executive Director of the Internet Freedom Foundation (IFF), an organization waging a crusade for online freedom around the world. He also believes there’s a need to understand what parts of pornography are criminalized in India.
Gupta, to begin with, stresses that criminalization of pornography is “rooted in the offence of production, sale and distribution of obscenity“. Citing the judgment by the High Court of Bombay in Chandrakant Mansaram More v. the State of Maharashtra in the year 2010 for illustration, he adds that “viewing pornography is not a criminal act, and people who view it cannot be prosecuted for the offence.”
This, however, is subject to the condition that porn is viewed in private and not displayed in public. As long as the consumption is private, anyone viewing pornography cannot be prosecuted, even if they use a bypass such as a VPN.
In his previous writing for the Quint, Gupta confronted Vaswani’s petition to make porn-viewing absolutely illegal – even inside your bedroom and observes, “every person who has read 50 Shades of Grey will end up in prison” if the apex court decides in favor of the petitioner.
As per the recent orders by the High Court of Uttarakhand, ISPs – and not users themselves – are obligated to act and prevent the viewing or distribution of allegedly obscene content. And while operators or hosts of pornography websites might face the wrath of the brass, those overseas are most likely to elude any action. Moreover, curbing access to porn could be a monumental challenge.
“Ultimately, there is too much porn out there, and while moralistic and conservative mores may demand their removal it conflicts with the core of human desire for too many in India and over the world which has from time immemorial manufactured and sought erotica” – Apar Gupta
While Gupta believes that it might be virtually impossible to block porn, he also emphasizes the linkage between porn and the freedom of expression. Although the liberty of expressing your sexuality has been debated endlessly, Gupta insists that we must explore this freedom on par with other human rights. He cites Cyber Sexy, a book by Richa Kaul Padte which explores porn and it’s necessity in the fulfillment of female sexual desires and personality development.
Of course, the porn ban is not effective – that much we know – but the government could take more drastic steps in the future. While Gupta acknowledged the possibility of the government using its “prerogative” to amend the existing sections of the IT Act (noted above) and deem enjoying porn in private spaces an offense, it will be subject to opposition. He felt that such an ordinance “may even explore a path to repeal the offence of obscenity and focus on a sex positive approach to content regulation.”
Gupta said the sense of curiosity that drives mostly teenagers to explore online porn is too strong. He also hailed scholars such as Ratna Kapur and Nadine Strossen, urging that not only must porn be decriminalized, but there must also be a focus on themes that tackle genuine social issues.
In short, today we not only need to decriminalise pornography, but create incentives for the production of content with themes which focus on consent, intimacy, respect and gender equality. We need to remove the veil of ignorance, go beyond law to free our sexual self. This does not mean the promotion of exhibitionism which may jar with the mores of others, but promotes healthy, loving relationships in which sex is not a source of shame and embarrassment, but a bond of confidence and affection.
Gupta warned that these questions on the validity of online porn are not easy to answer but instead convoluted and indeed “hydra-headed“, as the Supreme Court of India has called them in the past.
I’ve been talking actively about porn with my colleagues and have realized that it is perceived differently by everyone. This perception of people is based on a variety of factors such as their social and sexual conditioning, culture, and encounters with those they are attracted to. I’ve learned that before we reach a point of decision, we must actively talk about sexuality and two recent decisions by the Supreme Court have clearly given us the legal liberty to.
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