Legal Status of Pornography in India

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By V Arjun

Introduction.

We know that the COVID-19 Pandemic has hit us hard and this has caused a huge negative effect in our lives. Causing havoc from the economy of our country or world as a whole, to the feelings of a person. That is a wide aspect. It is as if we can measure such a distance between these two major aspects only by using stellar units. So, taking into consideration these two very important points or end points, we will be able to see a master and slave. When we talk about that perspective,  here the Corona Virus is only a catalyst to these outcomes. That is, to give more clarity to the situation let’s assume the thoughts and feelings of a lonely person. The economy’s downfall would affect a person’s mind. He might have troubles regarding his job. If that person was a daily wage worker before the arrival of the pandemic, he would definitely go through a hard time being broken. Some people might overcome this situation easily, whereas others might fight it difficult to come over these kinds of stressful periods. When they can’t handle such a period, some people will attempt to commit suicide. We have already heard a lot of news about attempts to commit suicide as well as suicide. This shows out or high lightens the situation of the present-day stress that people carry with them. That too, mostly consists of a young population. Another sad truth is that the hard times faced by homeless children. We know that social distancing is necessary to break the chain and reduce the widespread of Corona Viruses, but the homeless children cannot adopt such a change to their lives as they have nowhere to go and there are no such secure places for them. There are children ragpickers and it turns out to be difficult to find such a job during the lockdown period. This stressful situation paves way for more crimes in the situation and that too, mainly the crimes against women. People are finding this period as to marry girl children at a young age as the authorities are busy fighting COVID-19 Pandemic. There is another population who are addicted to porn. The situation of those addicts aren’t much discussed in such a scenario. But this situation has a deep connection with psychology that must be discussed. In these stressful situations, people mostly tend to rely on certain small-time happiness. One such engagement they find is watching porn videos. Most people aren’t aware of the illegality in such acts. Pornography’s meaning can be found to display of sexual organs visually to create an excitement within the viewers, which is sexual. This situation takes the whole concept to another level. The topic pornography must not be learned or approached with shyness, but with at most concentration. There are many aspects within this concept. They are legal aspects, psychological aspects, different meanings and colors that can be given to a particular thing based on its contents and so on. Perspectives of people will be different. But in law, different aspects had been given different colors while taking about pornography. Another major problem that we face is the creation of such porn videos by normal people other than pornographic channels or companies. This situation violates a lot of laws as well as morality principles. To tackle this situation proper action must be taken. But the major hindrance faced by the authorities is that such pornographic creations happen on the internet and the internet is ubiquitous. It is literally everywhere and that is the major importance of the internet. But when we come into this matter, we can understand, the ubiquitous nature of the internet makes it difficult to control illegal activities by people, which is related to porn. The origin of such issues can be traced back to peeping tom syndrome or voyeurism. This might result in people capturing videos or photos of other people engaging in sexual activities or even getting undressed.

Negative effects of watching porn and growth of porn sites.

The major down pulling fact of porn is that the viewers tend to believe there is a reality behind the porn video stories. This makes them live in a mythical world of addiction. People turn unaware of the reality and naturality in the process of sex. This is turn develops a negative attitude in people in approaching people of opposite sex or same sex. There are many families who suffer due to the porn addiction of husbands. In these kinds of situations, the wives are forced to satisfy husbands via methods as in porn videos. This treats them as mere satisfying machines or just toys. Most people hide their porn addictions and this thus causes dishonesty in those people. This makes men think that women have no voice in matters related to sex and thus, children are burden to maintain conjugal rights. Also, the videos that have immoral content among family members had caused immoral and brutal happenings within the families. These addicts take into consideration that such porn scripts on prohibited relations are common and thus go crazy on these matters causing shock and sadness in families. Also, porn gives an image that all people are involved in immoral activities and thus, it is fine to live in such a society by reflecting illegality as well as immorality paving way for adultery as well as unnatural sex. In this kind of mistaken porn-sex-culture, people glorify sex as well as adultery as a part of their culture. This is where all the misunderstandings take place.

Coming to the growth of porn sites, it was reported that during the period of lockdown people all over the world visited porn sites and this turned out to be a record as the graph showed an increase in the number of people watching porn videos during the early months of this Year-2020. That is, from March to June. This way there was an increase in profit of the porn sites and porn producing firms and companies.

Ban on Porn sites in India.

More than 800 porn sites were banned in India as taken care of, by the Department of Electronics and Information Technology. The major motive behind such an act was to stop the circulation of child pornography in internet. This will cause a lot of psychological issues in the viewers and thus, must be stopped. We know that the young population are the assets of our nation. There had been many controversies and criticism on the banning of porn sites, quoting it as a hindrance to freedom.

Role of Voyeurism.

Voyeurism can be termed as the desire of a person to see other people getting undressed or getting into private moments, which is actually sexual. This can also be termed as peeping-tom-syndrome. Section 354C explains about voyeurism.[1] Here private moments or private acts means where a person engages into activities which he/she or any person is not likely to do in the public and if the person engages in such private activities in his or her room or any place considered to be secure by them. In this situation, that person might be getting undressed, in underwear or might even be in the toilet. So, if a person breaks into their privacy and if he spreads such digital information, then it is an offence. Even if the victim had agreed the offender to take his/her images, but they had not given the permission to publish or disseminate such photos and videos, then the person so disseminating it is punishable.

Focusing on Cyber Pornography

Watching child pornography is an offence and also transmission of porn is an offence.Cyber pornography is punishable up to five years of imprisonment and Rupees ten lakhs as fine. As earlier mentioned, pornography can be easily termed inside dissemination of videos, e-mails, mobile messages and so on having obscene content with them.

In a case Dr. L.Prakash v. State of Tamil Nadu, a doctor made porn images and photos and sold it foreign porn websites. The records of porn videos were obscene to such an extent that the public prosecutor had to request the High Court of Chennai to transfer that case to another Court as a Lady Judge presided over the Court where the case was tried. The High Court of Chennai gave permission to transfer the case, but on appeal, the Supreme Court sent back the case to the Court where it originally presided, taking into consideration the convenience of the lady witness in the case.[2]

Tests to check obscenity

The major tests to check obscenity in an image or video or any artistic works are Hicklin Test, Roth Test and Contemporary Interpretation.

1)Hicklin Test

 Court held that without taking into much consideration the artistic values, those materials which are intended to corrupt minds in a sexual manner can be considered as obscene. This was decided in an English Case, R. v. Hicklin.[3]

2) Roth Test

 The United States Court held that the Hicklin Test was inappropriate and improper, as only if the dominating content or theme is obscene or if that content creates a negative sexual impact on an average person, a book or an artistic work can be put under the topic of obscenity.

3) Contemporary Interpretation

  The concept of Contemporary Interpretation can be easily termed as the way a modern man thinks. This can be explained with the help of the case Aveek Sarkar v. State of West Bengal.[4]That is, in 1994 a German Magazine named Stern published an image as the cover page of the magazine, where  Tennis Player Boris Becker and his fiancée Actress Barbara were standing naked while Boris covered Barbara’s breast with his arms. Barbara was a dark-skinned beauty and the object of such a cover page was a thought against Apartheid. Also, there was an article in the magazine regarding their future plans as well as their message to the public. But when this article got published in the Ananda bazarPatrika, in India, a lawyer named Aveek Sarkar filed a case against the editor, publisher and printer of that magazine under Indian Penal Code Section 292. Aveek Sarkar claimed that such a photograph would corrupt the innocent minds of the young population in a negative sexual manner and this matter must be taken care of. The Supreme Court held that the objective of such a publication of image must be taken care of and must be looked into as the message of such an image was against apartheid. Court also held that, correct test to determine obscenity is Contemporary Interpretation or Roth Test and not hicklin test.

Conclusion

It is sad to notice and understand that the youth of our country are under peer pressure and they are facing a lot of stress. This automatically results in the feeding of their addictions to get a physical as well as mental satisfaction just for a moment. But the cost of these addictions are much deeper, uglier and scarier than we could imagine. Without even us knowing, the porn addiction is causing a lot of damage to the minds of the younger generation. With the internet at fingertips, even at a very young age, children are getting addicted to such porn sites. This automatically increases a mythical sexual desire in their minds, which would later develop into psychological problems and those children will start to offend others as they grow up. They often tend to get a sight of the private moments of other people. The offenders capture these private moments in electronic gadgets such as pen-cameras and phones, then upload them on the internet, having a motive to get money from the victim through blackmail or to satisfy their way of psychological disorders by harassing the victim. As such problems are created as a negative side of sexual desire, people as they grow up, must be provided with proper sexual education. The children must teach from a very young age about the sexuality of people and they must be given proper knowledge that sex is a natural process which caused the human and animal population. They must be taught to respect people. People shouldn’t see other people as a thing to satisfy their basic sexual needs. India is a country which has given importance to sex education at a very ancient period. But now, due to lack of proper sex education and lack of proper enforcement and inability to enforcement, many people are turning addicts as well as victims to pornography. If we are able to provide proper knowledge about sexual energy and understand the psychology of people all around the world, we will be able to overcome the negative impact of such a situation.

Reference

Indian Kanoon-https://indiankanoon.org/


[1] Indian Kanoon,https://indiankanoon.org/search/?formInput=section+354C+IPChttps://indiankanoon.org/search/?formInput=section+354C+IPC

[2] Indian Kanoon,https://indiankanoon.org/doc/1250731/

[3] Indian kanoon, https://indiankanoon.org/search/?formInput=r%20v%20hicklin

[4]Indian Kanoon,https://indiankanoon.org/search/?formInput=Aveek+Sarkar+vs+State+of+West+Bengal+1994

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