07,Dec 2023
Pornography has not been defined in any statute of India. However, videography or photography that is obscene is termed as pornography. In other words, the word ‘Obscene material’ is indirectly used for pornography material. Taking the Section 292 of IPC into account, it can be said that “a paper, book, pamphlet, drawing, writing, figure, painting, or any other object to be deemed as obscene if it is appeals or lascivious prurient interest or its affect.” Before we read the information in detail, let’s see what Supreme Court of India think about pornography.
In attempt to define pornography let’s see what Supreme Court thinks is obscene:
In the 1965 case of Ranjit D. Udeshi v. State of Maharashtra, the court first backed an obscenity test based on Chief Justice Cockburn's standards, which determined whether a piece of content may impurely influence those who were exposed to it. In the Director General, Directorate General of Doordarshan v. Anand Patwardhan case from 2006, the court eventually discarded the Hicklin test and adopted the Standard Community Test. This new definition of obscenity was based on current social norms and if the content catered to sensual pleasures while being unimportant. The court moved further away from the Hicklin test in the 2014 case Aveek Sarkar v. State of West Bengal, taking context and background into account, particularly if it insulted the modesty of the person being depicted.
Understand Pornography and Indian Laws
According to Indian law, certain pornographic, obscene, or sexually explicit pictures that are "lascivious or appeal to the prurient desire" or "tend to deprave and corrupt humans" are illegal. The following laws' specific details and requirements determine whether such actions are allowed, against the law, or punishable:
However, these laws do not explicitly and specifically define "pornography" or "obscenity" despite the fact that they outline the behaviors and circumstances that result in punishment. Due to the fact that not all pornographic content is obscene and is therefore subject to varying, or usually no penalties, it can be difficult to determine if a person's activities, such as the possession, creation, or distribution of pornographic content, are prohibited. The subjective definitions of the two phrases have evolved over time along with societal and mental trends. The problem of how the phrase "sexually explicit" is used also affects the sort of punishment that is meted out to offenders.
Provisions under the Information and Technology Act, 2000
The electronic transfer of material involving sexually explicit activities is addressed in Section 67A modification. A 5-year prison sentence and a Rs. 10-lakh fine can be imposed on anybody who "publishes or transmits or causes to be published or transmitted in the electronic form" any pornographic content. The act's Section 67B addresses child pornography.
Indian Penal Code (IPC)
According to Section 292 of the IPC, "something" is obscene if it is vulgar, lascivious, or has the potential to degrade and corrupt another person.
If someone is found guilty for the first time, they may get a sentence of up to two years in prison and a fine of up to Rs 2,000; however, if they are found guilty again, their sentence may increase to five years and a fine of up to Rs 5,000.
Anyone who buys, distributes, shows, or circulates such information to anyone under the age of 20 is subject to punishment, according to Section 293 of the IPC. In this instance, the sentence for the first conviction is 3 years (extension) in jail and a fine of Rs. 2000; for the second conviction, the sentence is up to 7 years in prison and a fine of Rs. 5,000.
Indecent Representation of Women (Prohibition) Act, 1986
POCSO Act 2012
Child pornography is forbidden in all publications, transmissions, and possessions, according to the law.
The POCSO Act of 2012's Section 14 makes it illegal to "use a child or children for pornographic purposes," and the penalty is at least five years in prison and a fine. In the event of a second conviction, the sentence may be increased to seven years in addition to a fine.
In accordance with Section 15 of the Act, it is also unlawful to store or possess child pornography "for the purpose of transmitting, propagating, displaying, or distributing" it in any way. The penalty for keeping or having child pornography for commercial gain is 3 to 5 years in prison.
3 Important Laws on Pornography in India
Distributing and Retailing Sexually Explicit Content
Selling, distributing, exhibiting, circulating, importing, or exporting any pornographic photograph, writing, pamphlet, book, or drawing that is lusty, lewd, or that depraves or corrupts another person is illegal under section 292 of the Indian Penal Code, 1860.
On the first conviction, the offender faces a maximum sentence of two years in jail and a maximum punishment of Rs. 2000 in penalties. In case, if found guilty again then the imprisonment might be increased to five years in jail and a fine of up to Rs. 5000.
Giving Young People Access to and Selling Them Pornographic Materials.
Any individual who sells, issues, exhibits, or circulate any pornographic picture, writing, painting, book, pamphlet, etc. that is lewd or lustful to someone under the age of eighteen faces up to three years in prison and a fine of up to Rs. 2000 for the first conviction. If an individual is found guilty again then he/she might be sent to imprisonment for up to seven years with a fine of up to Rs. 5000.
Lewd Behavior and Music in Public
It is illegal for someone to do any obscene conduct in a public setting, such as singing, reciting, or saying offensive phrases or melodies that offend other people. The accused faces an imprisonment of maximum of three months, a fine, or both.
Pornographic content is now mostly accessible online, which is why the Information Technology Act of 2000's sections 67A and 67B were put into effect.
Publication and electronic transmission of sexually explicit actions or conduct are prohibited under Section 67A of the Act. The offender faces a maximum sentence of five years in jail and a fine of Rs. 10, 00,000. The maximum sentence in the event of a second conviction is seven years.
The identical offense described in the previous section is penalized under Section 67B of the Act if it contains sexually explicit activities that represent minors.
Conclusion
In conclusion, navigating the legal landscape surrounding pornography in India requires a nuanced understanding of various statutes, including the Indian Penal Code, the Information Technology Act of 2000, the Indecent Representation of Women (Prohibition) Act, 1986, and the Protection of Children from Sexual Offences (POCSO) Act of 2012. While the term "pornography" remains undefined explicitly, the legal framework relies on the characterization of content as obscene, considering its potential to appeal to prurient interests or degrade individuals. The Supreme Court's evolution in defining obscenity, moving from the Hicklin test to the Standard Community Test, emphasizes the contextual and societal nature of these determinations.
The consequences for engaging in the creation, distribution, or possession of pornographic content vary under different laws, reflecting the government's commitment to safeguarding societal morals and protecting vulnerable populations, especially children. As technology continues to shape the accessibility of such content, the provisions under the Information Technology Act highlight the government's efforts to regulate electronic transmission and publication of sexually explicit material. In essence, understanding the intricate web of laws and their interpretations is essential for individuals and entities to navigate the legal implications surrounding pornography in India.
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References
- https://blog.ipleaders.in/cyber-pornography/
- https://www.indiatimes.com/explainers/news/ laws-related-to-pornography-in-india-579700.html
- https://www.indialawoffices.com/legal-articles/ indian-laws-on-pornography