By Fen Mathew
Decades ago, when the internet was introduced to the world for the first time it was with the hope that it will make the world a better place to live, help connect people across the globe and make their life and work easier, but it was not that straightforward as it seemed to be at that time.
While on one side it was proving to be a boon for the users, it had its dark side and disadvantages at the same time especially affecting the younger generations who had easy access to the world of internet but very less check and control on its use and one of the biggest threats of such uninterrupted access was the rapid increase of pornography and porn industry across the world.
The word pornography is defined as, representation of sexual behaviour in books, pictures, statues, motion pictures, and other media that is intended to cause sexual excitement by Britannica.[1]
The word pornography has been derived from Greek words ‘porni’ which means ‘prostitute’ and ‘graphein’ which means to ‘write’. It may be presented in different media like magazines, videos, books, writing, animation, films, and Video games but it does not include any kind of sex shows, striptease, etc.
Pornography in India
The concept of porn is not new to Indian culture. The Khajuraho temples built in Madhya Pradesh that were built 885 AD and 1050 AD by the Chandela dynasty is one of the oldest carvings which depict erotic and sexual scenes on it which is proof that the concept of pornography is not new to India. Michael Edwards, author of the book Bound to Exile: A Victorian in India, obscene pictures were in circulation in India as early as 1860 and were mostly imported from America.
The oldest case relating to obscenity was the maharaja libel case of 1862 which is around the book written by journalist Karsandas Mulji portraying a maharaja in West India as a man who would advance sexual favors in the name of religion by exploiting the female devotees.
Laws relating to pornography in India
In the modern era, the concept of pornography has widened, and easy internet access has made the availability of porn effortless. With the younger generations closely affiliated to good internet connection and smartphones, the culture of pornography has crept into their lives which has adversely affected them worrying the elders and parents.
Pornography even though it is viewed in private effects the married life in the future. It may sometimes lead to adultery, prostitution, and unreasonable expectation which lead to dissolute behaviour. To prevent such wrong behaviours and offenses from escalating in society, the legislature had to make laws to curb the increasing menace of pornography in India.
- Information Technology Act, 2000
Under this Act, pornography is not declared illegal but there are provisions laid down to regulate the production and distribution of cyber pornography.
Section 67 of the Act makes the following acts punishable with fines of up to Rs 5 lakhs and imprisonment up to 3 years.
Publication of pornographic content on the website, WhatsApp, or any other platform where it can be accessed by a third party or transmission which means sending obscene material to any party mechanically or causing it to be published or transmitted which makes the intermediary portal liable.
The intermediary guidelines of IT Act, 2000 out the onus on the service provider or the intermediary to exercise due diligence to not misuse their platform.
Section 67A of the Information Technology Act, 2000 lays down the Punishment for publishing or transmitting material containing sexually explicit acts, etc., in electronic form.
It states that Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees.
- Indian Penal Code, 1860
Section 292 of IPC deals with the definition of obscene material and dealing with obscene material.
Sec 292(1) says that a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, such as to tend to deprave and corrupt person, who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.
Section 292(2) lays down that any person who-
- sells, lets to hire, distributes, publicly exhibits, or in any manner puts into circulation, or
- imports, exports, or conveys any obscene object or
- Takes part or receives any profit related to aforementioned acts relating to obscene materials or,
- Advertises any obscene material or,
- Offers to do or attempts to do any act which is prohibited under the section.
- On first conviction will be liable for imprisonment maximum of 2 years and fine up to 2000/- and on second conviction will be liable imprisonment which may extend up to 5 years and a maximum fine of 5000-/.
Section 293 of IPC states that any person who sells, lets to hire, or distributes any obscene material to any person below the age of 20 years shall be awarded imprisonment which may extend up to 3 years and a fine up to Rs 2000 and on subsequent conviction, with imprisonment up to 7 years and fine up to Rs 5000.
Child pornography in India
Child pornography refers to the portrayal of a minor in a sexually explicit act through the way of videos, photographs, or other digital content. over the years, sharing of child porn across the internet has increased in significant numbers.
In 1998, over 3,000 cases were registered against websites containing child pornography. The number of cases increased to over 100,000 just a decade later, and in the year 2014, the number exceeded 1 million for the first time. Last year, there were 18.4 million reported cases of child pornography across the world.[2]
According to market figures from the National Center for Sexual Abuse, child pornography is one of the fastest growing online businesses and India is among its biggest consumers and contributors. In India, a pornographic video is captured every 40 seconds, about 38 percent of which are linked to child sexual abuse. The director of the Indian Cyber Army stated that around 25% of all the search engine queries in India are related to child pornography.
A recent study by the US National Center for Missing and Exploited Children (NCMEC) and the Indian National Crime Records Bureau (NCRB) found that more than 25,000 pieces of alleged child sexual abuse content have been uploaded to social media platforms in India over the last 5 months (as on 2nd May 2020).[3]
India reported a maximum number of online child sexual abuse imagery (CSAI) cases followed by Thailand. This data was shown by the US-based National Centre for Missing and Exploited Children (NCMEC). According to the report, India accounted for 3.88 million such cases filed between 1998 and 2017 even though the number of internet users is comparatively less than countries like Iraq and Thailand.
An official from the Ministry of Human Affairs (MHA) informed that Delhi topped the list in uploading Child Sexual Abuse Material (CSAM) and other states like Maharashtra, Uttar Pradesh, and West Bengal were the other top states.
Laws relating to child pornography in India
- Information Technology Act, 2000
Child pornography is not banned in India but some laws make the circulation of any material relating to child porn an offense. Section 67B of the Information and Technology Act lays down the provisions related to child porn. It states that any person below the age of 18 years will be treated as a child.
It says that any person who;
- publishes or transmits or causes to be published or transmitted material in any electronic form which depicts children engaged in a sexually explicit act or conduct; or
- creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges, or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner; or
- cultivates, entices, or induces children to online relationship with one or more children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource; or
- facilitates abusing children online, or
- records in any electronic form own abuse or that of others pertaining to sexually explicit act with children,
On a first conviction, imprisonment may to a maximum of 5 years and fine to a maximum of 10 lakhs rupees, and on subsequent conviction with imprisonment up to 7 years and fine which can be extended to 10 lakhs.
- POCSO (The Protection of Children from Sexual Offences) Act, 2012
Section 13 of the Act defines the offense of child pornography. It states that whosoever uses a child in any form of media for sexual gratification, which includes-
- representation of the sexual organs of a child;
- usage of a child engaged in real or simulated sexual acts (with or without penetration);
- the indecent or obscene representation of a child shall be guilty of the offense of using a child for pornographic purposes.
Section 14 of the Act lays down punishments for using a child in a pornographic Act and after the 2018 bill, the quantum of punishments was changed to punish the offenders in such serious crimes.
- Whoever uses a child or children for pornographic purposes shall be punished with imprisonment of either description which may extend to five years
- If the person using the child for pornographic purposes commits an offense which results in penetrative sexual assault, he shall be punished with imprisonment of either description for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.
- If the person using the child for pornographic purposes commits an offense that results in aggravated penetrative sexual assault, he shall be punished with rigorous imprisonment for life and shall also be liable to fine,
- If the person uses a child for pornographic purposes resulting in sexual assault, he shall be punished with imprisonment of either description for a term which shall not be less than six years but which may extend to eight years, and shall also be liable to fine.
- If the person uses a child for pornographic purposes resulting in aggravated sexual assault, he shall be punished with imprisonment of either description for a term which shall not be less than eight years but which may extend to ten years, and shall also be liable to fine.
Ban on pornographic content in India
The history of the porn ban in India goes back to 2013 to the case Kamlesh Vaswani Vs. Union of India and Others[4] when a petitioner named Kamlesh Vaswani filed Public Interest Litigation asking the court to block pornographic websites in India to curb the violence happening against women. In his report, he claimed that there were around 4 crore websites that showed pornographic content and needed to be banned.
In the year 2015, the Ministry of Electronics and IT directed the department of telecom (DoT) to ban 827 websites that showed porn content by giving a long list of such websites under section 79 of the IT Act but this ban was short-lived and eventually removed.
But again, in October 2018, the government brought back the ban which was triggered due to a horrific incident that took place in a school in Uttarakhand were 4 boys raped a junior girl. After investigation it came up that the boys were inspired by the porn, they carried out the horrendous acts. At that time Uttarakhand High Court appealed to the government to block the porn sites to prevent such crimes in the future.
Arrests made for filming and distribution of pornographic content
In February 2020, a TV actress Gahna Vashisht was arrested along with some other model and actresses on the allegations that she was shooting and filming pornographic content at Madh Island in Malad in Mumbai when police raided the apartment. Police was tipped by few neighbours about such activities and victims tried to contact the police as they were forcefully pushed into filming.[5]
Soon after her arrest, Mumbai police also arrested UK production house representative Umesh Kamat who used to collect videos from the actress and upload them on the websites.
In another case, Maharashtra cyber police booked Alt Balaji, other production houses for ‘transmitting pornographic content’ in November 2020. The police invoked sections of the Indian Penal Code, the IT Act and the Indecent Representation of Women (Prohibition) Act in the FIR against 13 streaming services, including Alt Balaji operated by Balaji Telefilms Limited, and pornographic websites.[6]
In past 2 years there have been several cases of arrest by police for the offences of child pornography in the places like Mumbai[7], Kerala[8], Hyderabad[9], and Delhi[10].
With multiple laws in act and several awareness programs running across the country, the control on pornographic content, its use and sale has not been curbed efficiently in the country as there are still many websites accessible to people watch such content. There are news relating to arrest and allegations on people for producing, filming, advertising such intent but India is far from controlling the exploitation that is taking place on the pretext of porn culture and industry.
Conclusion
After reading the developments in the porn industry and laws in India and understanding the need to regulate and curb it, it can be concluded that even though there have been several amendments in the existing laws and introduction of new laws, there has been not much difference in the pornographic industry.
The ban on the porn websites did not prove to be very useful as the audiences have turned to various other methods of getting their way such as changing VPN settings, the banned sites have made alternatives to attract the audience, piracy of videos etc which makes the availability of video content easy to reach.
There have been cases of children being pushed into the industry and exploited to work, women around the country are trafficked, exploited so that they can be used in the industry and even though there have been strict laws and continuous check on such rackets, we still come across many news and instances that tell us about the human trafficking rackets that exist in India.
There is very little or no effect on the porn industry in India even after the formation of laws and in contrast these practices have gained popularity in the hidden markets where people still engage to fulfil their demands.
- John Philip Jenkins, “Pornography” available at: pornography (Last visited on June 3, 2021) ↑
- Milind Rajratnam, “Combating Child Pornography in India” available at: milind-rajratnam-combating-child-pornography
(Last visited on June 3, 2021) ↑
- Milind Rajratnam, “Combating Child Pornography in India” available at: /milind-rajratnam-combating-child-pornography
(Last visited on June 3, 2021) ↑
- Kamlesh Vaswani Vs. Union of India and Others (2014) 6 SCC 705 ↑
- Zee Media Bureau, “Actress-model arrested for porn video racket in Mumbai”, available at: actress-gehana-vasisth-arrested-for-shooting-uploading-pornographic-videos-2340269.html (Last visited on June 3, 2021) ↑
- Express News Service, “Maharashtra: Cyber police books Alt Balaji, other production houses for transmitting pornographic content”, available at: maharashtra-cyber-police-books-alt-balaji-other-production-houses-for-transmitting-pornographic-content-7033149/ (Last visited on June 3, 2021) ↑
- Mohamed Thaver, “CBI books 30-year-old man from Mumbai in child pornography case”, available at: cbi-books-30-year-old-man-from-mumbai-in-child-pornography-case-6883307/ (Last visited on June 3, 2021) ↑
- Press Trust of India, “41 Arrested for Sharing Child Pornography: Kerala Police”, available at: kerala-police-busts-online-child-pornography-arrests-47-1694738-2020-06-28 (Last visited on June 3, 2021) ↑
- Unknown, “Two held for watching child porn in Hyderabad”, available at: two-held-for-watching-child-porn-in-hyderabad/article32289118.ece (Last visited on June 3, 2021) ↑
- Tanseem Haider, “5 arrested in Delhi for circulating child pornography on social media”, available at: 5-arrested-in-delhi-for-circulating-child-pornography-on-social-media-1755982-2021-01-05 (Last visited on June 3, 2021) ↑
