Banning Porn: An Indecent Proposal?

Policymakers in India need to focus on legislation and not morality when dealing with porn.

WrittenBy:Arunabh Saikia
Date:
Article image
  • Share this article on whatsapp

Ravi Shankar Prasad, the country’s Communications and Information Technology Minister, wants us to view porn in the “context of Indian culture and moral obligation towards society“. Before discussing the merit (or the lack thereof) of the statement, we should give Prasad some leeway. Apart from accompanying Prime Minister Narendra Modi as he filed his nomination papers in Varanasi, Prasad hasn’t had much of a moment to call his own in this honeymoon for his party.

So the “it’s-against-our-culture” statement was coming sooner than later. It was important to do so to be at least on equal footing with the likes of Harsh Vardhan and Smriti Irani – younger colleagues who have enjoyed much more airtime.

subscription-appeal-image

Support Independent Media

The media must be free and fair, uninfluenced by corporate or state interests. That's why you, the public, need to pay to keep news free.

Contribute

However, the clamour to ban porn had begun much before. Last year, following a public interest litigation (PIL) by one Vijay Panjwani, the Supreme Court issued notices to ministries of home affairs, information technology and information and broadcasting, besides the Internet Service Providers Association of India (ISPAI) to get their act together to deal with this “serious” problem.

The court had then asked them to put in place a mechanism to block porn sites, particularly ones showing child pornography.

The PIL, filed by Panjwani, apart from asking for a ban on porn websites, also happened to raise the issue of the lack of legislation pertaining to pornography. The PIL reasoned that most “crimes against women/girls/children like gang rape and sexual assault are definitely fuelled by watching pornography”.

The PIL then went on to point out a Bombay High Court judgment, which had opined that watching porn is no offence, and only distribution, production and sharing are. Such judgments, the petitioner contended, built confidence among the youth to watch porn (and rape).

Over the course of the petition, the premise of the argument is quite simple: porn makes men horny, wanting to rape, and the lack of a legal framework has led to porn flourishing in India.

To be fair, the petitioner’s argument about the lack of legislation stands on solid ground. The word pornography does not feature in the Indian Penal Code (IPC). There are indirect references, though.

Section 292 of IPC prohibits the production and distribution of any material that is deemed obscene. Obscene is defined as anything that is “lascivious” or “appeals to the prurient interest”, or if it tends to deprave or corrupt any person likely to come across such material.

Under Sections 67 and 67A of the Information Technology (IT) Act, electronic publication of obscene and sexually-explicit material is prohibited.

The Indecent Representation of Women (Prohibition) Act (IRWPA) prohibits “the production and distribution of material, where women are depicted in an indecent manner”.  The IRWPA defines the term “indecent representation of women” as “the depiction of women in such a way as to have the effect of being indecent, derogatory or denigrating women, or is likely to deprave, corrupt or injure public morals”.

Laws regarding child pornography are, however, stricter. The 2009 amendment of Section 67 deems the browsing of child pornography an offense. The Protection of Children From Sexual Offences Act also views child pornography with seriousness and offenses can lead to lengthy periods of imprisonment and fines.

The Indian law thus quite categorically distinguishes between pornography that features children and adults. The court clearly sees viewing pornography (as long as it doesn’t feature anyone below the age of 18) as a matter of personal choice.

Now, second part of the petitioner’s argument: that porn makes people –particularly men – rape. While journalists who’ve written on this subject have chosen to quote studies such as this to argue that there is no direct co-relation between rape and pornography (and easier availability of porn may even lead to a decline in rapes), I’d refrain from doing so. For two reasons: first, academic studies done by criminal psychology professors with American citizens as the sample set cannot possibly hold true in the Indian context. Second, and more importantly, establishing a co-relation — positive or negative — between pornography and rape is beyond the scope of this piece.

Section 292 of the IPC is not only ill-equipped to deal with pornography in its current Internet avatar, but also doesn’t have the dexterity to address the concerns of a fledgeling porn industry in India. While it is easy to dismiss concerns of lack of sound legislation such as the petitioner’s as extensions of a warped sense of morality, anyone with an idea of the pornography scene in India would tell you that things are not hunky-dory – and underage pornography is a serious concern.

In fact, the notion of morality that has set the tone of the debate does a great disservice to the real issue.

A critically acclaimed 2012 Bollywood flick, Miss Lovely, paints a gory but very believable picture of the Indian pornography industry. The industry is set on the very foundations of exploitation that draws a large part of its immunity from the lack of legal regulations. India, along with Thailand, Cambodia and Brazil, has one of the highest rates of commercial sexual exploitation of children. Child pornography, executed in brothels, is one of the more common forms of commercial sexual exploitation of children in India.

The dearth of a robust legislation that recognises a direct link between underage pornography and child sexual abuse undermines what is a serious problem. A problem that has nothing to do with morality or Indian culture but is a direct fall-out of ill-conceived laws and even worse enforcement.

The courts, reluctant to address the issue of inadequate laws pertaining to pornography, have asked the government to deal with it. The government has, in turn, asked Internet Service Providers to block websites: a task not only gargantuan but also self-defeating. As an official of the ISPAI told Newslaundry, “With the lack of legal clarity as to what porn exactly is, blocking websites is a very difficult thing to do. Websites keep changing their names. However, we are obliged to follow government directives and we block whatever we are asked to by CERT [Computer Emergency Response Team].”

Apart from problems like a drop in Internet speed, blocking websites is also an exercise in futility. Speaking to Newslaundry, Rajesh Chharya, president of the ISPAI, said, “Blocking is not a solution – education and awareness are. Blocked websites can be easily accessed through what are called proxy servers. They are free and easily available.”

The government’s current approach to pornography is fundamentally flawed. It entails half-baked measures to achieve something that’s not even possible and conveniently ignores the real issues. Acknowledging the dynamics of the Internet and the ground reality that there is a revenue generating and livelihood-providing sex industry in the country, which would do well with legal protection, would be the first step.

The next hearing of the case is scheduled for the last week of this month. Hopefully, practicality will take precedence over morality, and of course “Indian culture”.

subscription-appeal-image

Power NL-TNM Election Fund

General elections are around the corner, and Newslaundry and The News Minute have ambitious plans together to focus on the issues that really matter to the voter. From political funding to battleground states, media coverage to 10 years of Modi, choose a project you would like to support and power our journalism.

Ground reportage is central to public interest journalism. Only readers like you can make it possible. Will you?

Support now

You may also like