Pornography in India: legitimate or not?

Introduction

Pornography was originally described as any work of art or literature showing the lives of prostitutes, derived from the Greek porni (“prostitute”) and graphein (“to write”).

Pornography is the depiction of sexual behaviour in books, photographs, sculptures, films, and other forms of media with the intent of eliciting sexual arousal. The distinction between pornography (illicit and prohibited content) and erotica (generally accepted stuff) is primarily subjective and reflects shifting community norms.

Sexually explicit content can be utilised for a variety of objectives, including education, art, entertainment, science, personal sexual satisfaction, and fantasy. “Pornography” can be characterized as anything meant to elicit sexual arousal or desire, generally involving sexually explicit material, according to popular use.

Background

The contemporary history of Western pornography began with the Enlightenment (18th century), when printing technology progressed enough to allow the creation of textual and visual materials that appealed to audiences of all socioeconomic levels and sexual preferences.

Pornographic films were readily available as early as the 1920s, and their popularity skyrocketed in the 1960s. The widespread availability of pornographic films was aided by the introduction of videocassettes in the 1980s and digital videodiscs (DVDs) in the 1990s, which allowed for their private viewing.

Pornography has long been denounced and criminalised on the grounds that it depraves and corrupts both adolescents and adults, and that it leads to sex crimes.

Pornography and India

People in India believe that watching porn is prohibited, however this is not the case. You cannot go to jail for watching porn, but you may be jailed for distributing or creating pornographic content, according to Indian law. That is the fundamental idea by which the entire country operates, including the police, attorneys, the courts, and, of course, filmmakers. However, the textual law’s real practical implications are both murky and hazy.

“Publication, transmission, and causing to be communicated and published in electronic form any content containing sexually explicit act or behaviour is punished with imprisonment up to 5 years and a fine up to 10 lakhs,” according to Section 67A of the Information Technology Act of 2000. If you’re discovered selling or commercialising porn, you might face jail time and hefty fines.

Raj Kundra’s arrest on July 19 is the most talked-about violation of these rules. The producer-businessman was charged under sections 420 of the Indian Penal Code (IPC), 34 of the Indian Penal Code (IPC), 292 and 293 of the Information Technology Act, and the Indecent Representation of Women (Prohibition) Act, as well as relevant sections of the IT Act and the Indecent Representation of Women (Prohibition) Act. Kundra’s enterprises, partners, and their app HotShots, according to his attorneys and associates engaged in the case, were not involved in the production of porn, but rather erotica.

What is erotica now?

Any literary or creative work that deals substantively with erotically stimulating or sexually arousing subject matter yet is not typically regarded pornographic is referred to as erotica.

Pornography is divided into two types

  • Hardcore pornography comprises of nudity or partial nudity in sexual circumstances, whereas;
  • soft core pornography consists of nudity or partial nudity in sexual situations. Nudity may be present in both types of pornography.

In Delhi High Court, Avnish Bajaj vs State, the case known as the Bazee.com case, an IIT Kharagpur student named Ravi Raj posted a listing on bazee.com with the username Alice elec offering an obscene MMS video clip for sale for Rs 125 per video. Fortunately, bazee.com has a filter in place to prevent users from publishing dubious content. Despite the fact that the description was never included in the sale, Item 2787748- DPS Girl having fun!!! Bazee points + full video.

On November 27th, 2004 and deactivated about 10 a.m. on November 29th, 2004. Following that, the Crime Branch of the Delhi Police took notice of the situation and filed a FIR. Ravi Raj, Avnish Bajaj, and Sharat Digumarti, the website’s owner, have all been charged.

In Supreme Court of India, Bachpan Bachao Andolan vs Union of India & Ors [(C) No.51 OF 2006], The petitioners wanted the Indian Penal Code to make intra-state trafficking of young children, their bondage and coercive detention, as well as routine sexual harassment and abuses, punishable. Concerns about child sexual abuse were also referred to the Law Commission of India by the Supreme Court of India.

 

Cyber Pornography Laws in India

In simple terms, cyber pornography is the act of creating, displaying, importing, distributing, or publishing pornography through the use of cyberspace. Traditional pornographic entertainment has been mostly displaced by online/digital pornographic entertainment since the advent of internet. Cyber pornography is illegal in several countries and allowed in others. This is a grey area of the law in India, as defined by the Information Technology Act, 2000, where it is neither unlawful nor legalised.

In Madras High Court, Dr. L. Prakash vs State of Tamil Nadu [W.P.M.P.No. 10120 of 2002], Dr. L. Parekh was a well-known physician who produced over 120 research papers, all of which were published in prestigious medical journals. In an internet obscenity case, the doctor was caught and sentenced to life in jail. The accused filed a writ petition asking for all of the privileges that come with being a “special class prisoner.” The court dismissed the accused’s writ petition and refused the accused any special treatment.

In the Tamil Nadu High Court, Suhas Katti v. State of Tamil Nadu [C No. 4680 of 2004], The woman brought the complaint against him for sending indecent communications. The case has established a precedent for prosecuting criminals who transmit offensive messages that defames, irritates, or offends a person due to their filthy and vulgar nature. The case is especially significant since it is the first time that online evidence has been presented in a court under section 65B of the Indian Evidence Act.

Conclusion

The legal and administrative impediments to safeguarding public’s interests on the Internet are perplexing. Definitional issues, as well as differences in cultural and social norms, make developing an effective worldwide framework for protecting children online problematic. Different approaches to difficulties involving the exercise of criminal jurisdiction over crimes undertaken via the Internet, extradition, and the acquisition of evidence have added to the problems.

Cyber pornography has become more dangerous as a result of the Internet’s presence. Despite the fact that there are laws against the publication and distribution of cyber pornography, viewing it is not unlawful unless it is child pornography. Intermediaries will not be held accountable for any illegal content posted by users if they were diligent and did not aid in the cybercrime.

The lack of a uniform and harmonised framework on privacy, content regulation, and pornography are also important roadblocks to implementing a successful international approach to safeguard children’s online interests. The obstacles, however, are not insurmountable because the dialogue is also aimed at the presentation.

Reference:
1. The Information Technology Act of 2000.
2. Raj Kundra Case
3. Avnish Bajaj vs State
4. Bachpan Bachao Andolan vs Union of India & Ors [(C) No.51 OF 2006]
5. Dr. L. Prakash vs State of Tamil Nadu [W.P.M.P.No. 10120 of 2002]
6. Suhas Katti v. State of Tamil Nadu [C No. 4680 of 2004]
7. Indian Evidence Act, 1872
8. Indian Penal Code, 1860

Author

Disclaimer

All efforts are made to ensure the accuracy and correctness of the information published at Legally Flawless. However, Legally Flawless shall not be responsible for any errors caused due to oversight or otherwise. The students are advised to check an opportunity themselves before applying.

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