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Internet and Pornography

INTERNET AND PORNOGRAPHY
- Vatsal Mehrotra, Symbiosis Law School, Pune

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.”

Albeit, the term “porn” or obscenity has always had the taboo effect on the Indian society and has not meshed well with the social fabric of the country. For the flow of the article, obscenity shall be used as the term “pornographic” is not explicitly defined in the context of Indian laws.    In fact, obscenity has always been considered outside the purview of protection granted under freedom of speech and expression [1] and has been subjected to the reasonable tests of public morality and decency. In India there is no particular provision which criminalizes pornography. There are mainly three statutes which talk about the obscenity- Indian Penal Code, 1860 (IPC) section 292 along with section 67 of the Information Technology Act, 2000 (IT Act). The third specific statute is Indecent Representation of Women (Prohibition) Act, 1986. 

The concept of obscenity has not been defined and the meaning of the term changes through time and evolution of society. But the Indian courts have adopted the Hicklin test as formulated in R v. Hicklin[2]  and has held that obscenity is sex which appeals to the carnal side of the human nature or has such tendency; however, such an appeal varies on individual case basis.[3] The courts under art.19(2) have always found public morality as restriction to the individuals freedom of speech and expression. And this article would seek to examine the violation of the Fundamental Right of an individual along with studying the harmful effects of unregularized access of pornographic material while making certain recommendations on the same.

Violation of Fundamental Rights

The debate around pornography has always been viewed with two different prisms of conservatives and liberals. Ideologically the conservatives view every sexually explicit material as obscene and demand a complete ban on the same. For them protecting and preserving the conservative outlook of life from the destructive effect of the sexually explicit content is far more important the individual’s freedom and liberty. But this has been subject to strong criticism and vehemently disregarded by the liberals. The idea that the liberals propagate is the minimum state interference except in cases when there is a subsequent harm to the other. The main grounds on which a liberal contention stands is that the right of freedom and speech which protects the individual liberty of a person gives him/her the right to express their opinion at their own accord and even propagate such opinion without causing harm to the others. Further the individual’s right to explore and cosset in their own personal convictions so as to develop their conscious and way of life is also very important. In fact, a presumption against prohibition of such activities shall also be considered as they depict a way of people which certain individuals follow.  Moreover, a major segment of the society feels that apart from helping an individual reach and become aware about his liberty, the  pornographic material should be protected as pornography is an important form of sexual expression which may liberate the women from the oppressive shackles of sexual conservatism and would help the women to explore their own form of sexuality.[4] The feminist debate which is structured on equality, also talks about the equality of women in terms of their sexuality. Inspite, the situation of individual sexuality being on a lower pedestal, the marginalized position of women adds to their hindrance in achieving sexual liberty.

Moreover, these liberal thoughts are well within the framework of our Constitution and are aligned with the vision of our forefathers, however, the entire extent of Indian laws which deal with obscenity have been upheld under art 19(2) which talks of reasonable restrictions in the interest of the State which includes public order, decency and morality and the Supreme court  has upheld section 292 which talks about obscenity and the restriction is in the interest of public decency and morality. Anyway, the State as well as the Judiciary has completely failed to elaborate on the grounds that how the private use and enjoyment of pornographic material leads to the violation of public decency and morality[5] while the logic of the harm principle[6] also fails as the State has not been able to show the harm cause to the other by the private usage of pornography, and thereby the State cannot exercise this power over the individual. Furthermore, the argument of compelling state interest test as laid down in Govind v. State of M.P.[7] which states that only restriction that can be placed on fundamental rights is when the law satisfies this test, does not hold much ground as the Delhi High Court in Naz foundation case[8] held that public molarity or public disapproval of certain acts is not a valid justification for the restriction of the fundamental rights granted under art. 21 of the Constitution and “If there is any type of ‘morality’ that can pass the test of compelling state interest, it must be ‘constitutional’ morality and not public morality.”[9] Therefore, it is suggested that courts while deciding cases which involve the right of an individual to indulge in pornographic material either as a creator or viewer, the approach of Constitutional Morality should be adopted while dealing with the argument of compelling state interest. Despite the Naz Foundation Case being overruled by a two-judge bench of the Supreme Court, the constitutional importance of the same cannot be ignored. The Delhi bench decision forms an important landmark in the interpretation of the fundamental rights and the restrictions on it.

Harmful Effects of Unregularized Access of Pornographic Material
Notwithstanding the fact that the right to watch porn is covered largely under the ambit of the right to privacy, its unregularized usage has a number of harmful effects both on society and the individual. In society it leads to the increase in prostitution, adultery, and child trafficking. Child pornography is the harsh side of the pornographic industry and due to widespread demand of it, content creators are tempted to shoot such videos which is detrimental to basic rights of children and human dignity. An analysis of the content of Playboy, Penthouse, and Hustler from the years 1953 to 1984 revealed 6,004 child images and an additional 14,854 images depicting crime or violence. Furthermore, nearly two-thirds of the child images were sexual and violent, with most of the images displaying girls between the ages of three and eleven years of age. Each of these magazines portrayed the scenes involving children as though the child had been unharmed by the sexual scene or even benefited from it.[10] Furthermore, a number of psychological studies have drawn a correlation between depression and porn, with the frequency of accessing such material is a strong indicator of a person’s deteriorating mental health. It also increases the sexual aggression and abuse amongst the frequent users and also leads to the increase in rape myth acceptance. When the pornographic material is accessed by a child who has not yet reached the age of maturity, there are increased chances of it affecting the child’s memory in a negative way and might even make him/her forget the difference between reality and fantasy. Though the adults are also prone to this, the effect on minors is more detrimental.

Thereby, the unregulated usage of pornographic material is not in favour of either the society or the individual. The State shall pass laws which strikes a balance between the freedom of an individual meanwhile restricting his access to such corrupt usage of his freedom. Meanwhile also taking steps to ensure that this material is not accessed by minors who are prone to its detrimental effects.

References

[1] Ranjit D. Udeshi v. State of Maharashtra, AIR [1965] SC 881
[2] R v. Hicklin (1868) 3 QB 360
[3] Supra 1.
[4] D. Cornell, “Feminism and Philosophy” (2000)
[5] Vallishree Chandra and Gayathri Ramachandran, \'The Right to Pornography in India: An Analysis in Light        Individual Liberty and Public Morality\' (2011) 4 NUJS L Rev 323
[6] John Stuart Mill, on “Liberty” (1975)
[7] Govind v. State of M.P. (1975) 2 SCC 148
[8] Naz Foundation v. Govt. of NCT (2009) 160 DLT 277
[9] Id. ¶ 79
[10] Judith A. Reisman, “The Psychopharmacology of Pictorial Pornography Restructuring Brain, Mind & Memory & Subverting Freedom of Speech” 26, (2007).