INDIAN LAWS ON PORNOGRAPHY – by Shubhangi Singh @lexcliq

Recently, Actor Shilpa Shetty’s Husband, Mr. Raj Kundra was arrested by the Mumbai Crime Branch, due to his alleged involvement in the production and distribution of pornographic films through a mobile application. He is also alleged for his involvement in management of the app, looking after the monetary transactions. 

In India, Information Technology (IT) Act 2000, the Indian Penal Code (IPC) and the Protection of Children from Sexual Offences (POCSO) Act 2012 regulate the cases related to the pornography. 

VIEWING PORN PRIVATELY IS LEGAL-

In India, a person can watch pornographic content in a private space. Even, The Supreme Court also orally remarked this in 2015 that it cannot stop an adult from exercising his fundamental right to personal liberty to watch porn within the privacy of his room.

According to Article 19 of the Indian Constitution, a citizen has the freedom of speech and expression. But, this freedom is a limited right as the government can impose reasonable restrictions. One such reasonable restriction is imposed when someone’s freedom of speech and expression hurts the “morality and decency”. As a result of this, the Indian government back in 2015, issued orders to internet service providers to ban hundreds of pornographic sites. 

PUBLICATION AND DISTRIBUTION IS ILLEGAL- 

Section 292 of the IPC exclusively dealt with sale, distribution, public exhibition or circulation of any obscene book, drawing, painting, etc. According to Section 293 of the IPC makes it illegal to sell, distribute, exhibit or circular obscene objects to anyone under the age of 20 years, and Section 294 IPC makes it a crime to do any obscene act or sing obscene songs in any public place. 

The IT Act 2000 makes it illegal to publish or transmit obscene material or material containing sexually explicit acts in electronic form. Anybody who does this can be punished with a three-year jail term along with Rs 5 lakh as fine. Section 67A of the IT Act provides the punishment for publishing or transmitting material containing sexually explicit acts, etc., in electronic form. Anyone who “publishes or transmits or causes to be published or transmitted” any sexually explicit material can be punished with a jail term of five years along with Rs 10 lakh as fine. 

ROLE OF CONSENT

Section 66E of the IT Act provides the punishment for “violation of privacy”. It provides for a punishment of 3 years or fine of a maximum of Rs 2 lakh, for anyone who “intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent”, violating their privacy. Section 354A of the Act, defines sexual harassment as “showing pornography against the will of a woman”.

The Indecent Representation of Women (Prohibition) Act 1986 also prohibits “indecent representation of women through advertisements or in publications, writings, paintings, figures or in any other manner”.

POSSESSION OF CHILD PORNS IS ILLEGAL

Publication, Possession or transmission of pronography of a child is illegal. Section 14 of the POCSO Act 2012,  makes it a crime to “use a child or children for pornographic purposes”, prescribing a punishment of at least five years jail term with fine. In case of a second or subsequent conviction, it provides for a minimum sentence of seven years along with fine.  Section 15 of the POCSO Act also makes it illegal to store or possess child pornography “for transmitting or propagating or displaying or distributing” it in any manner. The only exception to this is storing or possessing pornographic material for reporting it to the authorities or for using it as evidence in court. Watching or promoting child pornography is a serious (and heinous) offense in India. This means if you access a porn site that is showing child pornography, you can be punished. And you can be punished irrespective of whether you access a blocked website with such content, or a website that is not blocked but has illegal content on it.

Section 15 also provides for an enhanced punishment of three to five years imprisonment for anyone who stores or possesses child pornography for commercial purposes.

Additionally, Section 67B of the IT Act makes it punishable for anyone to publish or transmit material depicting children in sexually explicit acts in electronic form. So within this provision, creating text or digital images or collecting, browsing, downloading, advertising, promoting, exchanging or distributing any material that depicts children in “obscene or indecent or sexually explicit manner” is also prohibited.

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