Watching, publishing, sharing pornography: What is a crime in India and what isn’t

Actor Shilpa Shetty’s husband Raj Kundra has been arrested for allegedly being a ‘key conspirator’ in a case pertaining to pornographic films. Here’s what the laws say.

Representational image. | Photo: Flickr

New Delhi: Actor Shilpa Shetty’s husband and businessman Raj Kundra was arrested Monday for allegedly being a “key conspirator” in a case pertaining to the production and publishing of pornographic films through mobile apps. 

The allegations against Kundra involve forming a company to develop ‘Hotshots’, a mobile application allegedly used to publish porn, helping manage and maintain it, supervising its functioning and monetary dealings through WhatsApp groups, setting up another company to protect Hotshots’ videos from piracy, and having suspiciously large global transfers in bank accounts. He was remanded to police custody Wednesday, till 23 July.

But what does Indian law say on pornography?

In India, provisions of the Information Technology (IT) Act 2000, the Indian Penal Code (IPC) and the Protection of Children from Sexual Offences (POCSO) Act 2012 talk about pornography. ThePrint explains.

Viewing porn privately is not illegal

In India, viewing sexually explicit material in private spaces is not illegal. The Supreme Court had also orally remarked back in July 2015 that it cannot stop an adult from exercising his fundamental right to personal liberty to watch porn within the privacy of his room.

Constitutionally, any restriction on the exercise of free speech is required to strictly conform to any of the eight grounds contained in Article 19(2) of the Constitution. In other words, a law can restrict freedom of speech and expression on these eight grounds, which includes “morality and decency”. 

Asserting that porn websites violate “morality and decency”, the Department of Telecommunications of the central government had issued an order in July 2015, requiring internet service providers to ban 857 pornographic websites. The order was issued against the backdrop of a petition filed by an Indore-based lawyer calling for a ban on pornographic websites.

However, a few days later, the government clarified that the ban was only temporary, and was aimed specifically at child pornography.

Publication or transmission of porn is illegal

Before the advent of technology, Section 292 of the IPC exclusively dealt with sale, distribution, public exhibition or circulation of any obscene book, drawing, painting, etc. It says that any such material would be considered to be obscene “if it is lascivious or appeals to the pruri­ent interest or if its effect…such as to tend to deprave and corrupt a person” who reads, sees or hears it.

Section 293 of the IPC makes it illegal to sell, distribute, exhibit or circular obscene objects to anyone under the age of 20 years, and Section 294 makes it a crime to do any obscene act or sing obscene songs in any public place.

However, with pornographic material largely available in electronic form, the IT Act 2000 makes it illegal to publish or transmit obscene material or material containing sexually explicit acts in electronic form.

Section 67 of the Act makes it illegal to publish or transmit “obscene material” in electronic form. This material, it says, can be anything which is “lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt” people who watch it, read or hear it. Anybody who does this can be punished with a three-year jail term along with Rs 5 lakh as fine.

Section 67A of the IT Act provides the punishment for publishing or transmitting material containing sexually explicit acts, etc., in electronic form. Anyone who “publishes or transmits or causes to be published or transmitted” any sexually explicit material can be punished with a jail term of five years along with Rs 10 lakh as fine.

What role does consent play

The law has also begun to recognise consent in this regard. For instance, Section 66E of the IT Act provides the punishment for “violation of privacy”. It provides for a punishment of 3 years or fine of a maximum of Rs 2 lakh, for anyone who “intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent”, violating their privacy.

Several amendments made to the IPC in 2013 also highlighted the importance of consent. For instance, Section 354A defines sexual harassment as “showing pornography against the will of a woman”.

The Indecent Representation of Women (Prohibition) Act 1986 also prohibits “indecent representation of women through advertisements or in publications, writings, paintings, figures or in any other manner”.

Possession of child pornography is illegal

When it comes to child pornography, it isn’t just publication or transmission, but also possession that is illegal under the law. 

Section 14 of the POCSO Act 2012 makes it a crime to “use a child or children for pornographic purposes”, prescribing a punishment of at least five years jail term with fine. In case of a second or subsequent conviction, it provides for a minimum sentence of seven years along with fine. 

Section 15 of the POCSO Act also makes it illegal to store or possess child pornography “for transmitting or propagating or displaying or distributing” it in any manner. The only exception to this is storing or possessing pornographic material for reporting it to the authorities or for using it as evidence in court.

Section 15 also provides for an enhanced punishment of three to five years imprisonment for anyone who stores or possesses child pornography for commercial purposes.

Additionally, Section 67B of the IT Act makes it punishable for anyone to publish or transmit material depicting children in sexually explicit acts in electronic form. So within this provision, creating text or digital images or collecting, browsing, downloading, advertising, promoting, exchanging or distributing any material that depicts children in “obscene or indecent or sexually explicit manner” is also prohibited.

(Edited by Amit Upadhyaya)