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On 20 July, a magistrate's court in Mumbai remanded Indian businessman Raj Kundra to three-day police custody in what is being touted as "pornography scandal case". Earlier, Kundra was arrested by the Crime Branch of Mumbai Police after his name was allegedly revealed by one of the co-accused during interrogation.
Kundra has been made an accused, along with nine others, in an FIR lodged in February 2021, following a complaint filed by a woman claiming that she was forced to do a porn film after being promised an acting job. The Crime Branch portrayed Kundra as the "key conspirator", who was kept informed about the scripts and production of alleged porn movies that were shared on the app "HotsShots".
In India, pornographic material is dealt with under the Information Technology Act (IT Act), Indecent Representation of Women Act, and the Indian Penal Code. Apart from general provisions on "sexually explicit" or "obscene materials", the IT Act and the Prevention of Child Sexual Offences Act (POCSO) also have specific provisions prohibiting child pornography.
Section 67A of the IT Act prohibits publishing or transmission of any material which has sexually explicit acts or conduct in it. Section 67 of the IT Act, just like section 292 of the Indian Penal Code, prohibits publishing or transmission of any obscene material through electronic mode.
Commenting on the facts alleged against Raj Kundra, Kazim Rizvi, founder of the tech law and policy think tank The Dialogue, told The Quint that Kundra's "intent and involvement" will play a large role in deciding the case. Rizvi believes that prohibition under section 67A can be extended to financing of sexually explicit material as well.
The Indecent Representation of Women Act, on the other hand, prohibits the representation of women or any part of her body in an "indecent form" provided that such representation will injure "public morality" or "morals".
Unlike other "sexually explicit material", merely viewing or downloading of any material containing child pornography is also an offence. Section 67B of the IT Act makes it publishing, transmitting, viewing or downloading child pornography illegal.
In 2015, a lawyer had moved a plea in the Supreme Court seeking a ban on porn websites arguing that watching porn promotes sex crimes. In light of that petition, the BJP-led government had asked internet service providers (ISPs) to take down as many as 857 websites.
But there was another U-turn. In December 2018, the Uttarakhand High Court directed the central government to ban porn websites while hearing a petition concerning the gang rape of a 15-year old girl in Dehradun. The court cited accused's statement, where they had said that they committed rape after watching porn, as a reason to direct the porn ban.
Despite the Uttarakhand High Court's order, and the subsequent stance taken by the Department of Telecom and ISPs, porn remains readily accessible on the internet.
Despite the porn ban, the consumption of porn has increased in India. As per statistics released by PornHub in 2019, India features on number 3, only below the US and the UK, on the list of countries with most viewers. A report by Times of India also showed that porn consumption in India peaked by 33% during the COVID-19 lockdown last year.
The proliferation of porn has not only exposed the implementation gap between the policy and the reality, but has also made participants in the porn industry vulnerable to selective policing.
It seems that law enforcement agencies are taking cognisance of violations of Section 67A of the IT Act when a complaint is brought to their notice. Therefore, while creating, financing, or publishing porn is an offence, the fact is that much of this industry continues to operate under the radar.
The legal provisions – sections 67, 67A of the IT Act, Section 292 of the IPC, and Indecent Representation of Women Act – use vague and ambiguous words to define the offence.
A one-sided interpretation of what counts as "obscene" or "indecent" may subject a person to rigorous search and seizure by investigating agencies. Possibly, even without first checking if any harm has been caused by such publication.
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)
Published: 22 Jul 2021,07:52 AM IST