A STUDY ON BAN ON PORNOGRAPHY IN INDIA

INTRODUCTION :

The term pornography has originated from the Greek word “pornographos” which can literally be translated as writing about prostitutes. While the term “pornography” in Webster’s Dictionary has been defined as “writings, pictures, etc., intended primarily to arouse sexual desire.” It is not only a morally problematic issue in India but also in every corner of the world. A worst and unfavourable impact of the technology can be seen in this era where pornography‟s composition is 33% in the world-wide net. The word pornography is defined as “anything written, any photograph, any movie etc. intended to arouse sexual excitement.” The main problem regarding pornography is that there are various technically specialised issues while banning those sites which exhibit pornographic items and how it violates the fundamental rights of speech and expression and to access to the free use of internet which causes a very ill impact on the upcoming generation.

Under Section 67 of Information Technology Act 2000, pornography is held as a punishable offence. Therefore, there is an ongoing controversy between the rights of users to access the internet content and legal provisions regarding that particular content. In this article the researchers have tried their level best to discuss various issues and challenges of pornography in India, through various articles, online data, case laws and books. One third of the internet is covered by pornographic content which is resulting in men trying exploiting and suppressing women and children and committing various offences of unnatural sex. To stop this exploitation of women and children, a strong control of law is needed.

PORNOGRAPHY AS VIOLATION – HARM TO WOMEN AND CHILDREN  :

The feminism principle used to be mainly concentrated on the idea of, “a woman’s body, a woman’s right.” With respect to rape, consent is still stressed upon and women’s right activists declare, “No means no.” Radical feminists opine that no woman of sound health would give consent to the practice of pornography. Thus, any women who consents to it is a woman who is wired to believe the dominion of men over women and that women are incapable of rendering consent. Children need special protection under the law. Children do not have the capacity to give consent for their engagement in pornography even on such occasion when there is no coercion. The mental and physical well-being of children and women must be taken care of by providing comparable care.

One of the sole reasons for demand to ban and regulate pornography is for the reason of harm that is inflicted on woman. It is claimed that pornography is a means by which men, for their own gratification, intrude on, possess and exploit women for profit. Women are brutalised, ‘trussed, maimed, raped’ and these conditions are presented ‘as the nature of women’. The harm, it is claimed, may be inflicted on women on the street by those influenced by exposure to pornography or on those women involved with the production of pornography. It is also argued that pornography negatively influences the general perception on women and promotes the subordination of them. Naturally, the assumption of the correctness of this proposition would lead allowing of the prohibition of the sexually explicit materials to the extent that has been revealed by research. However, it is far from clear that there is enough neutral, reliable evidence proving a correlation between pornography and sexual crimes or cultural breakdown.

Pornography is one among the sex discriminative practices that leads to denial of opportunities to women in society. Pornography is a paramount cause for the creation and maintenance of sex being a tool for discrimination. Pornography has developed as a system to exploit and subordinate women. It is observed that, “The bigotry and contempt it promotes, with the acts of aggression it fosters, harm women’s opportunities for equality of rights in employment, education, access to and use of public accommodations, and acquisition of real property; it pro motes rape, battery, child abuse, kidnapping and prostitution and inhibits just enforcement of laws against such acts; and contributes significantly to restricting women in particular from full exercise of citizenship and participation in public life”

The obviousness of pornography being harmful to children is evidenced by the fact of increasing number of countries making laws prohibiting the sale of pornography to children. Accurate clinical studies cannot be carried out in this regard. The ethics of research methodology morally bars any researcher from intentionally making the children be exposed to pornographic material to study the effect it has on them. Parental consent on the same is hard to obtain and studying of children with respect to pornographic material without obtaining consent from the parents is downright unethical.

It is claimed that women are used in a degrading manner in pornography. They only pretend to be getting pleasure, but actually they do not. Women do whatever is demanded from them to produce such materials. Mackinnon claims that the purpose of the dissemination of pornography and trafficking of women is to silence women.It is also claimed that pornography creates inequality between men and women. There is an assumption that women are unequally treated and subordinated during the process. By merging the sexuality and subordination, it creates an atmosphere well-fitted to a social structure of sexual inequality and, in the process, underpins the continued recurrence of that inequality.

REASONS BEHIND THE FAILURE OF THE ATTEMPT TAKEN BY INDIA TO BAN PORNOGRAPHY :

Indian legislators do not want to see adult online content only for citizens of the country. Well, there is nothing they can do to respond effectively to their wishes.

On 27 October, the Department of Telecommunications, Government of India, asked Internet service providers (ISPs) to ban 827 websites from hosting pornographic content.

This is at least the second attempt by India to dismiss it as one of the most prolific consumers of pornography. Following a Supreme Court ruling in August 2015, the government unsuccessfully attempted to block 857 sites because such content promoted sexual assault.

This time, the Supreme Court of the state of Uttarakhand in the north of the country has seen a pornographic film re-enacted by the Supreme Court ban in Dehradun after being raped by an accused of rape.

Whatever the intent of the court, it is almost impossible to prevent Indians from consuming pornographic content online.

Just a few days after the government gave its verdict to Internet service providers, Pornhub, the world’s largest porn site, launched a mirror site with a slightly modified web address or URL reserved for Indian users.

“In India, there is no law prohibiting the private viewing of pornography and adult content, it is clear that the Government of India has no solution to the very serious and systemic problem in the country using websites.” For adults like us as a scapegoat, “said Pornhub Vice President Corey Price.” For the government, it’s damaging for Indians who want to ban sites like our parents for adult content Has become one of the biggest connoisseurs with parental control, and unpleasant closing page, and uncomfortable closing situations. ‘Strict use.’

Meanwhile, the ban has been brutally featured in social media.

 LAWS IN REGULATING  PORNOGRAPHY IN  INDIA :

Laws on pornography varies from each country based on the mindsets of people and societal set ups. In India, the topic of sexual intercourse though is considered to be a big taboo, the audience of pornography is considerably high. There is no dedicated law on the same but there are several laws that governs the issue of pornography and its forms. These include the Information Technology Act, 2000, Indian Penal Code, 1860, POCSO Act, 2012 and Indecent Representation of Women Act, 1986.

Firstly, under Section 67 of the Information Technology Act, 2000 makes the following acts punishable with imprisonment upto 3 years and fine upto 5 lakhs:

  • Publication- which would include uploading on a website, whats app group or any other digital portal where third parties can have access to such content.
  • Transmission- this includes sending obscene photos or images to any person via email, messaging, whats app or any other form of digital media.
  • Causing to be published or transmitted- this is a very wide terminology which would end up making the intermediary portal liable, using which the offender has published or transmitted such obscene content. The Intermediary Guidelines under the Information Technology Act put an onus on the Intermediary/Service Provider to exercise due diligence to ensure their portal is not being misused.

Section 67A of the Information Technology Act makes publication, transmission and causing to be transmitted and published in electronic form any material containing sexually explicit act or conduct , punishable with imprisonment upto 5 years and fine upto 10 lakhs and Section 67B bans  the Child pornography.

Secondly, as per Section 292 of IPC prohibits the sale of obscene material. Section 292(1) explains the meaning of “obscenity” and Section 292(2) explains the punishment for sale, distribution, etc. of obscene materials.

Section 292(1) states that any material will be deemed obscene if it is lascivious or prurient or any part of the material has the tendency to corrupt or deprave the people.

Section 292(2) states that a person who:

  • Sell, distributes, lets to hire, publicly exhibit or put into circulation any obscene material.
  • Imports or exports obscene material or knows that such material will be put for sale, distribution or circulation.
  • Is involved or receives profit from any business in the course of which he has knowledge or reason to believe that such obscene objects are for aforesaid purposes.
  • Advertises the obscene material.
  • Offers to do or attempts to do any act which is prohibited under the section.

On a first conviction, such a person shall be awarded either simple or rigorous imprisonment that may extend to 2 years along with a fine that may extend to ₹2,000. On the second conviction or person, such a person shall be awarded simple or rigorous imprisonment that may extend to 5 years along with a fine that may extend to ₹5,000.

Section 293 of Indian Penal Code, 1860, specifies the punishment for a person who sells, lets to hire or distributes any obscene object to any person who is below the age of 20 years. It states that on the first conviction a person shall be awarded imprisonment which may extend to 3 years along with the fine which may extend to ₹5,000 and on subsequent conviction, with imprisonment which may extend to 7 years along with the fine which may extend to ₹5,000.

With respect to The POCSO Act, 2012 ,which was specifically enacted to prevent children from sexual offences. The act protects children from sexual assault, sexual harassment, and pornography. The act aims to protect the interests and well-being of the children. For the purpose of the act, any person who has not attained the age of 18 years is a child. The Act is gender-neutral.

The provisions relating to Cyber Pornography under the POCSO Act are discussed below:

  • Section 13 of the POCSO Act, 2012, defines the offence of child pornography, it states that whosoever, uses a child in any form of media for the sexual gratification shall be guilty of the offence of child pornography.
  • Section 14 of the POCSO Act, 2012, provides the punishment for using a child for pornographic purposes.

Lastly in case of Indecent Representation of Women’s Act, 1986, the Act seeks to prohibit the representation of women or any part of her body in an indecent form provided that such representation will injure the public morality or morals.

Under Section 79 of the IT Act the intermediaries and the Internet Service Providers are accorded a safe harbour protection through which they enjoy exemption from such content that appear on their platforms. The law on intermediaries require them to draft a fail proof due diligence mechanism to avoid such content but there is no visible progress in this regard as such contents are still available largely on the platforms. The intermediaries are under an obligation to provide to the Court or the Government information on request but many a times this is not duly carried out, as such is hindered by high adherence to the right of privacy of an individual enabled through unbreakable encryption systems. Such an exemption is not given when the intermediaries fails to carry out such requests of deletion of content expeditiously or is involved in the commission of the offence. The guidelines also require them to define to the users expressly the content that is allowed to be posted, used, shared or published in such platforms.

A model law on Child Pornography or Child Sexual Abuse Material was released by the International Centre for Missing and Exploited Children (ICMEC) in the year 2018. The law of child pornography in India significantly succeeds to match the model law. But there exist certain mismatches with respect to the provision under the IT Act and POCSO Act like differing definition of child pornography, possession is banned under POCSO but IT act extends to prohibit even browsing of child pornography. The inadvertent viewing can also prove to be a violation in a few cases. The model law requires mandatory reporting by the service providers and intermediaries but such a provision is not in strict form under the Indian law. Access to information is also a cumbersome process under the Indian law.

Revenge porn is a recent phenomenon and is defined as “sexually explicit images of a person posted online without that person’s consent especially as a form of revenge or harassment”. A Sessions Court in West Bengal in a case decided over an instance of revenge porn and the perpetrator was made liable under Sections 354, 354A, 354C and 509 of the Indian Penal Code along with Sections 66E, 66C, 67 and 67A of the Information Technology Act.The court declared her to be a rape victim and asked the state government to award her compensation.

There had been several PILs that were instituted to have a concrete judgement on the issue of pornography in India.  There have been directions issued to Government to formulate methods but banning was not a feasible and final solution. However, in 2018 the Uttarakhand High Court ordered to ban porn sites and the Government initiated to direct the service providers to ban 827 websites. Network providers like Bharti Airtel, Reliance Jio, Vodafone restricted such content from their network.

The basic law for pornography in India can be summarized as below:

• Act of watching pornography online or download of the same is not illegal.

• Publication of pornography is illegal.

• Possession of pornographic material is not illegal subject to exceptions of child  pornography.

• Any kind of electronic transmission of the same is restricted.

JUDICIAL DETERMINATION :

A social worker who has submitted petitions prohibiting pornography Websites that want to prevent a solution through justice regarding the impact of pornography on society. In 2013, a petition was filed to the Supreme Court of India for the prohibition of Pornography in India. The court sent a message to the headquarters Government of India and sought its answer. Government Informed the court, that the cyber regulatory advisory committee which was formed according to Section 88 of Information Technology Act 2000 with a little about the availability of obscenity on the Internet and he paid attention to the subject. The case is still pending before the Supreme Court and the Supreme Court issued a communication to the Ministries of the House, In addition to information technology and broadcasting besides Association of Internet Service Providers of India on a petition Seeking an anti-pornography law filed by a lawyer Vijay Panjwani

A new publication was also filed for the public interest in front of KamleshVaswani’s Supreme Court, Suggested that pornography is one of the reasons that has led to increased sexual offenses against women. An online ban Pornography is not possible or desirable, and certainly not a call to court. PIL calls for ban of such websites Written by UtkarshAnand, New Delhi, Published April 28, 2014, may not have a full internet ban on Pornography and legal action for the same does not exist in the country in a large number of cases, which was conveyed through government supreme Court. Department Secretary Telecom (DoT) said blocking pornography Web sites are not possible due to practical difficulties. Internet Overseas where services are often found where this publication is authorized. The government claimed that Total censorship was reduced before publishing content Published in Cyberspace. Supreme Court sought clarification with Secretary of the DoT, to this edition. In reply to the secretary, DoT has stated that the role of DoT is limited. However, the process is considered as a request

According to Apar Gupta, executive director of the Internet Freedom Foundation, a New Delhi-based charitable organization, Indian Internet service providers do not require legislation to ban mirror sites. Furthermore, they may no longer have to block the first 800 sites because the Supreme Court ruling was provisional and became obsolete after the ban was lifted.

The justification for the last block on mirror pages remains unclear. Following an amendment to the Information Technology Act in 2010, the Government of India can no longer order Internet service providers to ban a website for reasons of obscenity only without legal restriction.

“Internet service providers can take precautionary steps to block adult pornographic websites to avoid further litigation that could endanger their license,”Apar Gupta said.

This may explain the randomness of new blocks. For example, Quartz stated that although the Pornhub mirror site is not accessible to Bharti Airtel and Reliance Jio customers, it works for Vodafone and ACT Fibernet customers. However, ACT FiberNet users cannot use xvideos2.com, the mirroring site of XVideos, another popular pornographic site.

CONCLUSION :

India is a country of ethics, morality, and culture where people give more importance to dignity than education. However, the general definition of obscenity refers to an act, speech, or object that may distort public morality due to its indecency in content or form. Although pornography has a negative impact on society, it is also Harmful to values ​​and morals and damaging the ethical ways of enriched culture with humility and sexuality, the laws are not sufficiently adapted to deal with this. The majority of of Mass found the internet is the way to enjoy and express freedom, as Fundamental Right with the IT Act, 2000. Some provisions are embedded to control exploitation and exploitation for children pornography on the Internet. Some people have filed the various numbers of PIL’s on judicial interpretation and asked for a ban on such sites in the Supreme Court. But there are still some PILs Pending and in some cases due to technical complexity; so the courts couldn’t ban these websites completely. It was held by the constitution that women and children are the weakest part.

Regarding the legality or illegality of pornographic websites, the prevailing grey area in India should be regulated, special laws should be enacted to promote culture in India and strict steps should be taken to prevent websites from becoming illegal. Child pornography to take action. Be safe and help small children, even for them, live in dignity and implement Article 21 of the Indian Constitution in general.

An aggressive and ruthless staging of women is showed to addicted to the adults, but especially teenagers are captured through this and aimed in this business. The sole cause that resulted in the predatory sexual behaviour that leads to to crossing the limits of humanity. That’s a lot, of course, natural things are shown to be unnatural and inhuman with the help of pornography, which takes generation closer to animal behaviour. Technology is the best means for strengthening human development and pornography is the worst use of the technique. As a closure, it is necessary for strict legal control and prevention Pornography to save the morality of the next generation from moral decline.

REFERENCES :

https://www.jurist.org/commentary/2020/05/milind-rajratnam-combating-child-pornography/

Aishwarya Says:

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