Due to its association with immorality, obscenity, and other negative traits, sex is viewed as a taboo topic in Indian society. The Indian legal system has developed rules that, in large part, uphold this societal morality. The outlawing of pornography is one such clause. Can a government lawfully forbid people from producing or accessing porn? Or would that be an unjustifiable infringement of fundamental rights? It is crucial to always keep in mind that the rule of law is only a tool for the realization of particular ideals and not an end in itself. This is particularly clear when we have to create regulations in a field where there is a great deal of conflict between conflicting ideals. One such arena is pornography.
In spite of the fact that Article 19 of the Constitution of India ensures the fundamental right to freedom of speech and expression, it has been determined that an obscenity ban is not unconstitutional. Obscene, according to the Supreme Court, is “offensive to modesty or decency; livid, dirty, disgusting.”
According to Sec 292 of the Indian Penal Code, 1860:
“………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, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, 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.”
Pornography is not illegal to see in India, but it is strictly forbidden to transmit or distribute it. There isn’t a strong argument in favor of outlawing the watching of porn. However, there is relatively little sex education offered in schools in a culture that is still quite repressive of sex in many ways. In contrast to its Western counterparts, the Indian porn business is totally unregulated.
Despite the fact that there is not one particular provision in any statute dealing with it, the concept of pornography has been included under the ambit of Section 292(1) dealing with obscenity in the Indian Penal Code, 1860 (IPC), which provides for criminal punishment for the sale, distribution, etc. of obscene material.
The Information Technology Act, 2000(IT Act’) and the Indecent Representation of Women (Prohibition) Act, 19861 (IRWP Act), also prohibit pornography.
According to Article 19(2) of the Indian Constitution, which permits the State to put reasonable restrictions on the Right to freedom of speech and expression on grounds including public order, decency, and morality, the full range of Indian laws pertaining to obscenity has been maintained as lawful. The legislation utilized the wording of the Indian Constitution and reiterated that fundamental rights are not absolute in nature and certain restrictions can be imposed.
Let us look at some similar cases relating to pornography and obscenity.
Ranjit D Udeshi v State of Maharashtra
In the above-mentioned case, the issue was the clash between freedom of speech and expression and obscenity.
However, the Court upheld that Section 292 of the IPC was legal on the grounds that it clearly includes a restriction in the furtherance of the interest of public decency and morality, and the legislation against obscenity, of course, when truly and correctly interpreted and enforced, aims nothing more than to further these principles.
This legislative and judicial approach has entirely failed to explain how the private use and pleasure of pornographic content harms morality and public decency. The theoretical underpinnings of this approach appear to be based on the harm principle, but the State has yet to demonstrate what kind of harm, if any, is inflicted by the private actions of consenting adults in creating and viewing pornography.
Naz Foundation v Government of NCT of Delhi
The Hon’ble Court determined that privacy acknowledges a right to a private realm of autonomy and intimacy that permits everyone to create and maintain interpersonal relationships without any kind of interference from the outer community. The way one expresses his or her sexuality is the very core of the area of private intimacy. Invasion of this realm will amount to a breach of privacy if one acts consensually and without injuring the other in expressing one’s sexuality. Now, because pornography is a vehicle for expressing one’s sexuality, it must be within the scope and of the right to privacy, provided it is created and viewed discreetly by consenting people and does not cause harm to others.
Using the terms “obscene” and “pornographic” interchangeably raises the fundamental and contentious question of whether some or all pornographic materials are truly obscene. The treatment of sexually explicit content, that is, placing everything under the broad banner of obscenity without distinguishing between private and public consumption of such material, is another cause for these legislations undermining human freedom and autonomy.
Now if we take a look at an English case, it can be clearly concluded that US protects the liberty of the public instead of restricting it.
Billy Jenkins v State of Georgia:
The First and the Fourteenth Amendments of the United States Constitution prohibit state and federal governments from completely suppressing or prohibiting sexually explicit items based solely on their obscene content.
The statutes, whether the Indecent Representation of Women (Prohibition) Act or Indian Penal Code, have simply replicated the old English Law and the morality that it was founded on. The rules of England have altered, but the law operating on Indian land remains unchanged. The effect of India’s obscenity laws may be observed in the government’s unrestricted discretion in banning films, books, and other items under the guise of offensive or immoral content. The morals and decency of society that are compromised by obscene content are the central themes of the courts’ arguments in all of the instances mentioned above. However, the morality that these Hon’ble courts emphasis looks more like an idealised, predetermined concept that has been accepted by everybody. Who created the standard to determine this morality and what exactly constitutes it are still open topics. The distinction between the “decent” and the “obscene” is still fuzzy.
Author(s) Name: Srijan Garg (Rajiv Gandhi National University of Law)
Constitution of India 1950, art 19
Indian Penal Code 1860, s 292
Indian Penal Code 1860, s 292(1)
Constitution of India 1950, Art 19(2)
Ranjit D Udeshi v State of Maharashtra (1965) AIR 881
Indian Penal Code 1860, s 292
Naz Foundation v Government of NCT of Delhi (2009) Writ Petition (Civil) No. 7455/2001
Jenkins v State of Georgia (1974) 418 U.S. 153