Porn is the depiction of an obscene, sexually explicit or erotic act or behavior intended to cause sexual excitement. Under the Indian law, certain acts related to such sexually explicit, pornographic, or obscene depictions which are “lascivious or appeal to the prurient interest” or “tend to deprave and corrupt persons” attract punishment. The qualification of such acts as legal, illegal, or punishable is determined by the circumstances and conditions laid down under the following statutes:
- Indian Penal Code, 1860 (IPC)
- Information Technology (IT) Act, 2000
- Protection of Children from Sexual Offences (POCSO) Act, 2012
- Indecent Representation of Women (Prohibition) Act, 1986 (IRWA)
However, while these laws provide the qualifying circumstances and conditions to attract punishments, they do not clearly and specifically provide the definition of “pornography” or “obscenity”. This creates confusion while deciding if the actions of a person, such as possession, production, or circulation of porn, are punishable since every pornographic material does not qualify as obscene and therefore attracts different, or often, no punishment. The two words have subjective meanings which have evolved over time with the evolution of the society and change of mindset. In addition, there is also the question of interpretation of the term “sexually explicit” which also influences what punishment the actions of a person attract.
Difference between Pornography, Obscenity and Sexually Explicit
Pornography may or may not be obscene or sexually explicit. However, every obscene or sexually explicit work or material will always be a subset of pornography.
Generally, the term porn is used to denote sexually arousing or erotic works, materials or acts while obscenity refers to a more specific category of pornography which has the potential to be harmful – morally, socially, emotionally and psychologically. It is regarded to have the potential “to deprave and corrupt those whose minds are open to such immoral influences”.
The term “sexually explicit” is self-explanatory and often refers to a more raw, carnal and explicit depiction of sexual activities.
Based on the legal interpretation of these words, the courts decide whether certain works, materials or activities related to pornography are legal, illegal or punishable. Therefore, for the dispensation of justice it is imperative to dissect these words from a legal point of view and understand what activities or materials come within the purview of such interpretation. For example, pornography in the United States (US) receives constitutional protection. However, obscenity and child pornography are not given any protection.
The Apex Courts of the United Kingdom (UK), the US and India, have tried to define these terms and have laid down several tests to determine which type of pornography does and does not qualify as obscene.
The United Kingdom
One of the first standards for obscenity was laid down by the Court of Queen’s Bench in Regina v. Hicklin, 1868. This test, called the Hicklin Test, provided a broad interpretation of obscenity based on the question whether the tendency of the pornographic material was to “deprave and corrupt those whose minds” were “open to such immoral influences and into whose hands a publication of this sort may fall.”
Essentially, this test allowed considering isolated passages of a work with respect to its effect on particularly susceptible persons. If any such passage or part of work appealed to the prurient interest in sex to a susceptible person, it was deemed to be obscene.
The United States
The Hicklin Test was soon adopted in the US in United States v. Bennett, 1879, in applying the Federal Anti-Obscenity Act, 1873. The test was continually used to penalize a wide range of art and literature and to prosecute many artists with serious works of contemporary fiction.
However, the US Supreme Court in Roth v. United States, 1957, scrapped the Hicklin Test and laid down the Contemporary Community Standard Test. This test, as opposed to the Hicklin Test, allowed considering the “dominant theme” of a work taken as a whole with respect to its effect on average and reasonable persons. As such, for the conviction of a person accused of obscenity, it became essential that the dominant theme of his work or material appealed to a prurient interest in sex to an average and reasonable man.
India
The Hicklin Test was adopted by the Supreme Court of India in Ranjit D. Udeshi v. State of Maharashtra, 1965, which dealt with the issue of whether the possession and sale of an allegedly obscene book qualified as an obscene activity mentioned under Section 292 of the IPC.
While Section 292 provides that “a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object” is “deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect taken as a whole, tends to deprave and corrupt persons”, it does not provide any tools to determine as to what exactly is “lascivious” or “prurient”; or has the potential to “deprave and corrupt persons”. As such, the question of whether an accused was guilty for his actions in connection with a pornographic work or material, such as its possession and sale, like in the Ranjit D. Udeshi case, remained hinged on to the determination of whether the work or material itself qualified as obscene or not.
The Hicklin Test, until 2014, remained the standard for determining what work, material or activity qualified as obscene in India. However, in Aveek Sarkar v. State of West Bengal, 2014, the Supreme Court rejected the Hicklin Test and adopted the Community Standard Test to determine what obscenity is. This test, besides the various provisions of IPC, the IT Act, the POCSO Act, and the IRWA, remains the present day standard for determining whether an activity, work or material related to pornography is:
- legal by being in the interest of public good, science, literature, art, learning, history, culture, religion or other objects of general concern, or
- illegal and punishable by being offensively obscene or sexually explicit.
The Various Forms of Pornographic Material
The form and nature of the pornographic work or material greatly determines which statutes act on it, thereby determining its legality or illegality, or the severity of punishment it attracts. Pornographic work or material could exist in the following forms:
- Printed or physically published, including but not limited to books, photographs, pictures, drawings, and paintings.
- Auditory, visual or electronically published, including but not limited to songs, audio tapes, movies, videos, clips, and digital pictures, photographs, doodles and paintings.
What is Illegal?
1. Activities Related to Obscene Objects Under the Indian Penal Code:
Once a work or material qualifies as obscene as per the Community Standard Test, the punishment attracted by the actions of a person in connection with such work or material is determined by the provisions of the IPC. These punishable actions can be classified into the following categories as per the circumstances and conditions laid down under the relevant provisions:
a) Sale, Letting to Hire, Distribution, Exhibition, and Circulation of Obscene Objects
Under Section 292, the IPC punishes any act constituting sale, distribution, exhibition, and circulation of obscene objects or a transaction where one person lets another hire obscene objects such as:
- book,
- pamphlet,
- paper,
- writing,
- drawing,
- painting,
- representation,
- figure, or
- any other object which is obscene.
b) Production, Possession, Trade, Business, Advertisement of Obscene Objects
For purposes related to sale, hiring, distribution, exhibition and circulation of the obscene objects mentioned above, Section 292 of IPC further punishes any person who does any of the following:
- Makes, produces or possesses such obscene objects.
- Imports, exports or conveys any obscene object.
- Takes part in the profit or receives the profit from any business which produces, purchases, keeps, imports, exports, conveys, publicly exhibits or circulates such obscene objects.
- Advertises or makes known that any person is engaged in or is ready to engage in any of the above mentioned acts or that the obscene objects can be procured from or through a person.
- Offers or attempts to do any of the above mentioned acts.
Punishment Under Section 292:
For all the acts mentioned under it, Section 292 provides for a punishment of:
- Up to two years of imprisonment and a fine extending to INR 2,000 on first conviction.
- Up to five years of imprisonment and a fine extending to INR 5,000 on second or subsequent conviction.
c) Sale, Letting to Hire, Distribution, Exhibition, and Circulation of Obscene Objects to Person Under 20 Years of Age
Section 293 of the IPC deals with a similar subject-matter as Section 292 and punishes any act that constitutes:
- sale, distribution, exhibition, and circulation of obscene objects to a person under 20 years of age, or
- a transaction where one person lets a person under 20 years of age hire obscene objects, or
- an offer or attempt to do any of the above.
Punishment under Section 293:
Section 293 attracts slightly more severe punishment as compared to Section 292. For all the acts mentioned under it, Section 293 provides for a punishment of:
- Up to three years of imprisonment and a fine extending to INR 2,000 on first conviction.
- Up to seven years of imprisonment and a fine extending to INR 5,000 on second or subsequent conviction.
d) Acts and Songs Which Are Obscene
The IPC, under section 294, criminalizes any person who, “to the annoyance of others”, commits the following at a public place:
- Sings, recites or utters an obscene song, ballad or words.
- Does an obscene act.
Such obscene act, singing, recitation or utterance is punishable with up to three months of imprisonment or with fine or both.
e) Showing Pornography Against the Will of a Woman
While, Sections 292, 293 and 294 are gender neutral, Section 354A of the IPC specifically punishes a man who shows any pornographic material of any form to a woman against her will with one year imprisonment, or with fine, or both.
It must be noted that Section 354A clearly mentions “pornographic material” instead of “obscene material”. It, therefore, implies that any act of showing a woman such material against her will would be punishable, even if the material she is subjected to seeing fails to qualify as an obscene material as per the Community Standard Test.
2. Activities Related to Obscene and Sexually Explicit Material Under the Information Technology Act
While the IPC criminalizes acts related to pornographic and obscene material existing in auditory, printed, published and gestural form, the IT Act criminalizes acts related to such material existing in electronic form.
a) Publishing or Transmitting Obscene Material or Material Containing Sexually Explicit Act in Electronic Form
Section 67 of the IT Act criminalizes the publishing, transmitting or causing to publish or transmit, in electronic form, any obscene material “which is lascivious or appeals to the prurient interest” or “tends to deprave and corrupt persons” who read, see or hear the matter contained or embodied in it. Such acts are punishable with:
- imprisonment for up to five years and fine extending to INR one lakh on first conviction.
- imprisonment for up to ten years and fine extending to INR two lakh on second or subsequent conviction.
Further, Section 67A of the IT Act criminalizes the publishing and transmitting of any material that contains sexually explicit acts or conducts. Such acts are punishable with:
- imprisonment for up to five years and fine extending to INR 10 lakh on first conviction.
- imprisonment for up to seven years and fine extending to INR 10 lakh on second or subsequent conviction.
b) Depicting Children in Sexually Explicit Act or Conduct
Section 67B of the IT Act specifically pertains to children less than 18 years of age and criminalizes any act that falls under any of the following categories:
- Publishing and transmission of material in electronic form depicting children in sexually explicit act or conduct.
- Creating, collecting, seeking, browsing, downloading, advertising, promoting, exchanging, or distributing any material in an electronic form depicting children in an obscene, indecent or sexually explicit manner.
- Cultivating, enticing, or inducing children to an online relationship with other children for a sexually explicit act or an act that may offend a reasonable adult.
- Facilitating the online abuse of children.
- Recording the abuse of children by oneself or any other person with regard to sexually explicit acts.
Such acts are punishable with:
- imprisonment for up to five years and fine extending to INR 10 lakh on first conviction.
- imprisonment for up to seven years and fine extending to INR 10 lakh on second or subsequent conviction.
c) Violation of Privacy
The IT Act, under Section 66E, also criminalizes any person who knowingly and intentionally captures, publishes or transmits the image of a private area of a person, including naked or undergarment clad pubic area, genitals, breasts or buttocks, without his or her consent. The violation of privacy under Section 66E is punishable with up to three years of imprisonment, or with a fine not exceeding INR 2 lakh, or with both.
3. Activities Related to Use of Children for Pornographic Purposes Under the POCSO Act
Besides the IT Act, the POCSO Act, under Sections 13, 14 and 15, criminalizes the use of a child for sexual gratification. Similar to the U.S., the POCSO Act in India offers no protection to use of children for pornographic purposes. The usage of the term “pornography” in the relevant provisions itself implies that the actions of a person in connection with child pornography are punishable even if the pornographic work or material related to a child fails to qualify as “obscene” under the Community Standard Test.
According to Section 13, the use of a child for sexual gratification includes –
- representation of the sexual organs of the child;
- usage of a child engaged in real or simulated sexual acts (with or without penetration);
- indecent or obscene representation of a child.
Furth, such sexual or pornographic representation and distribution of such material is prohibited in all forms including a programme or advertisement telecast by:
- television channels,
- internet,
- any other electronic form, or
- printed form.
The POCSO Act also criminalizes the storage, possession, transmission, propagation, displaying, sharing, or distribution of such pornographic material involving a child, except when such act has been done for the purpose of:
- reporting it, or
- using it as an evidence in a court.
Punishments under the POCSO Act:
1) The use of a child for pornographic purposes is punishable with:
- imprisonment for a term not less than five years and fine on first conviction.
- imprisonment for a term not less than seven years and fine on second or subsequent conviction.
2) The storage and possession of pornographic material involving a child with an intention to share or transmit it, is punishable with
- fine not less than INR 5,000 for first conviction, and
- fine not less than INR 10,000 for second conviction.
3) The storage and possession of pornographic material involving a child for the purpose of transmitting, propagating, displaying or distributing it, is punishable with imprisonment for up to three years, or with fine, or both.
4) The storage and possession of pornographic material involving a child for commercial purposes is punishable with:
- imprisonment for a term not less than three years and extending up to five years, or with fine, or both on first conviction.
- imprisonment for a term not less than five years and extending up to seven years and fine on second or subsequent conviction.
4. Activities Related to Indecent Representation of Women Under the IRWA
The IRWA, under Sections 3 and 4, criminalizes any person or company which produces or publishes or causes to be produced, published, sold, hired, distributed, circulated, exhibited, advertised, or sent by post any of the following obscene material containing indecent representation of women in any form:
- book,
- pamphlet,
- paper,
- slide,
- film,
- writing,
- drawing,
- painting,
- photograph,
- representation or
- figure.
Punishment under the IRWA:
Any person or, in case of a company, members in charge of or responsible to the company, who indulge in any of the activities prohibited under Sections 3 and 4 of the IRWA are punishable with:
- imprisonment for up to two years and with fine extending up to INR 2,000 on first conviction.
- imprisonment for a term not less than six months and extending up to five years and with fine not less than INR 10,000 and extending up to INR 1,00,000 on second or subsequent conviction.
What is Legal?
1. Exceptions Under IPC, IT Act and IRWA
Although the IPC,the IT Act, and the IRWA criminalize the above-mentioned activities related to pornography, they provide a few exceptional circumstances where such acts may be legal. These circumstances include:
a) The publication of any book, pamphlet, paper, writing, drawing, painting, representation or figure for:
- the public good and in the interest of science, literature, art or learning, or other objects of general concern, or
- religious purposes.
b) A representation though sculpture, engraving, painting, or any other form represented on:
- an ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act, 1958, or
- any temple, or
- on any car used either for the conveyance of idols or for any religious purpose.
c) In addition, the IRWA specifically does not prohibit the activities mentioned under its Sections 3 and 4, if they are done for the purpose of featuring them in any film in respect of which the provisions of Part II of the Cinematograph Act, 1952 (37 of 1952) are applicable.
2. Watching Porn in Private
Watching porn in private is not illegal under any statute or law of India. The Supreme Court, in 2015, had orally remarked that it cannot stop an adult from watching porn within the privacy of his room, which would otherwise be a violation of his right to personal liberty protected by Article 21 of the Constitution. In addition, the K.M. Puttaswamy v. Union of India judgment of the Supreme Court in 2017, clarified that the right to privacy of a person is protected under Article 14, 19 and 21 of the Constitution.
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