Published on: 12 September 2023 at 19:17 IST
The Kerala High Court has declared that watching pornography in the privacy of one’s own space, without sharing or exhibiting it to others, is not a criminal offense.
The judgment, delivered by Justice PV Kunhikrishnan, affirms that such an act is a personal choice and that any interference with it would infringe upon an individual’s right to privacy.
The case, titled Aneesh v State of Kerala, centered on the question of whether viewing explicit content privately constitutes a violation of Section 292 of the Indian Penal Code (IPC), which primarily addresses the sale, distribution, and public display of obscene materials.
The Court’s decision clarified that merely watching explicit material in private, whether it be an obscene photo or video on a mobile phone, does not fall under Section 292 of the IPC.
The offense under this section is only triggered if the accused attempts to circulate, distribute, or publicly exhibit such material.
As a result of this ruling, the Court dismissed a case against an individual who had been charged under Section 292 after being spotted watching explicit videos on his mobile phone while standing by the roadside.
The prosecution’s argument had been that the accused was observed viewing explicit material on his mobile phone. However, the Court emphasized that to establish an offense under Section 292 IPC, there must be evidence demonstrating that the accused engaged in activities such as selling, distributing, publicly displaying, or making obscene materials available for circulation.
Furthermore, the Court acknowledged the historical existence of pornography, emphasizing that the digital age has made it more accessible than ever. Nevertheless, it also underscored that consensual sex between adults is not an offense in India and emphasized the importance of privacy in such matters.
The judgment stated, “Consensual sex between a man and a woman is not an offense in our country, if it is within their privacy. A court of law need not recognize consensual sex or watching of a porn video in privacy because these are within the domain of the will of society and the decision of the legislature. The duty of the court is only to find out whether it amounts to an offense.”
In a notable addition, the Court issued a reminder to parents about the potential risks associated with children viewing explicit content, despite it not being considered an offense. It urged parents not to provide unsupervised access to mobile phones containing such material and encouraged them to guide their children towards informative and age-appropriate content.
The judgment also stressed the importance of nourishing children with healthy activities and encouraging physical play.
With these insightful observations, the Kerala High Court concluded the case, providing important clarity on the legal stance regarding private consumption of explicit material in India.