The vagueness surrounding obscenity laws allows the government to usurp our rights in the name of morality and make us a laughing stock for the rest of the world, says Kaushik Gupta.
When was the last time a government with an absolute majority withdrew an executive order within a week of its issue? That, my friend, is the power of porn! The varied demographic structure of India has always evoked difference of opinion—that of religion, cultural, language, food and what not. But one thing that transcends all boundaries of gender, caste, economy and education is pornography. Almost all of us watch it, or have watched it at some point in time. Simon Louis Lajeunesse, a professor at the University of Montreal’s School of Social Work, had to scrap his research since the team failed to identify subjects in their 20s who had never watched porn!
What constitutes porn is really very subjective. To some, A Serbian Film is the pinnacle of pornography, while to some others Narda and Karma sunbathing in Xanadu would be titillating enough to call for a ban on Mandrake comics! It is clearly a matter of perspective. This perspective is laced with the sociocultural mores of contemporary society and, of course, that of the individual who is not beyond his personal value system. In the absence of a clear demarcation of what is pornography, the State machinery, in the name of protecting Indian culture and values, can run havoc. The fight therefore, is not really to support pornography but to ensure that our rights are not usurped surreptitiously in the name of morality and decency.
“Morality and decency”, however, remains the primary hurdle. While Article 19 of the Constitution grants us the freedom of speech and expression, it also comes with a rider—in legal parlance, reasonable restriction. The said freedom is not absolute. The State can make laws restricting such freedom if it tends to violate the interests of the sovereign and integrity of India, friendly relations with foreign States, public order, decency or morality, defamation etc. However, what is moral and decent again depends on the subjective perception of the executive and the judge. Such vagueness is an anathema to criminal law. A bench of five Supreme Court judges has observed [1994 Supreme Court Cases (Criminal) page 899]:
It is the basic principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. It is insisted or emphasised that laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Such a law impermissibly delegates basic policy matters to policemen and also judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. More so uncertain and undefined words deployed inevitably lead citizens to “steer far wider of the unlawful zone…than if the boundaries of the forbidden areas were clearly marked.”
What exactly is “obscene” has also not been defined under the statutory law. Section 292 of the Indian Penal Code states that a book, pamphlet, drawing or painting will be deemed to be obscene if “it is lascivious or appeals to the prurient interest or if its effect…if taken as a whole, such as to tend to deprave and corrupt persons, who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.” The exceptions carved out in said section include material published for public good in the interest of science, literature, art or learning, for religious purposes, sculptures on ancient monuments or temples. That, fortunately, saves monuments at Khajuraho and Konark from the ban or being demolished!
In the absence of a clear demarcation of what is pornography, the State machinery, in the name of protecting Indian culture and values, can run havoc. The fight therefore, is not really to support pornography but to ensure that our rights are not usurped surreptitiously in the name of morality and decency.
Unfortunately, the exact meaning and purport of “obscenity” still remains vague since what might be “lascivious” to one might be completely benign to another. The apex court has time and again come in rescue of the ordinary man hounded by the vigilante. In the case where eminent author Samaresh Bose was convicted by the trial court for offence under Section 292 of the IPC for his novel Projapoti, the Court, overturning the conviction, observed [1985 Supreme Court Cases (4) page 289]:
Reference to kissing, description of the body and the figures of the female characters in the book and suggestions of acts of sex by themselves may not have the effect of depraving, debasing and encouraging the readers of any age to lasciviousness
The witness adduced on behalf of the accused in the trial, Sri Budhadev Bose, in most unequivocal terms reminded us of the works of Tagore and the freedom of thought and expression that emanated from his writings.
Anybody who knows the works of Rabindranath Tagore, knows that throughout his life he was a great advocate of freedom, we can say, also of social and sexual freedom May I remind everyone here of his novel Chokher Bali where he describes a love relationship between a young Hindu widow and a young man. May I remind everybody here of Ghare Baire where a married woman, a very highly respected woman falls in love with her husband’s friend. May I remind everyone here of Tagore’s novel Chaturanga where an actual sexual act is described in a very poetic and moving language.
Sadly, we still cannot exercise the right to express our free will, be it in the realm of political opinion or choice of partner for sex. Speaking to members of the Massachusetts Anti-Slavery Society on 28 January 1852, Wendell Philips said, “Eternal vigilance is the price of liberty; power is ever stealing from the many to the few.” We have not been vigilant. We have allowed the government to legislate draconian laws such as Section 66A of the Information Technology Act, 2000, which was used in abundance to throttle dissenting voices and used as an aid to moral policing till it was struck down by the Supreme Court as unconstitutional.
But hope still lingers on. In a more recent Judgment relating to some comments made by actor Khusboo, the apex court, while quashing all charges against her, observed:
Morality and criminality are far from being co-extensive. An expression of opinion in favour of non-dogmatic and non-conventional morality has to be tolerated as the same cannot be a ground to penalise the author.
The recent attempt to purify Indians by banning 857 websites in the garb of preventing child pornography has made us a laughing stalk for the rest of the world.
The recent attempt to purify Indians by banning 857 websites in the garb of preventing child pornography has made us a laughing stalk for the rest of the world. The Google search for ‘porn’ gives about 39,20,00,000 results in 0.28 seconds! There is no logical justification for banning those specific sites especially since many of them were not pornographic at all. I wonder who these people were who get paid from the tax payers’ money to act like a fool and demean the country before the international audience! Pornography is not the problem in our country, accountability is.
Though the judges of the apex court observed in the course of hearing that they cannot stop someone from viewing porn within the confines of their privacy, since viewing such adult content is within their rights, we must be alert and cautious so as to not to violate the law too. Section 67 of the Information Technology Act, 2000, and Section 67A, post the 2008 amendment criminalizes a person if he “publishes or transmits or causes to be published or transmitted in the electronic form, any material which is” obscene and/or “sexually explicit” in nature. Therefore, though viewing porn is not an offence, uploading and sharing the same is. Next time you share a naked photograph in an online or mobile group, remember, you are violating the law and can be sentenced to jail upto five years along with a fine of Rs 10 lakh, if proved!
The exception to the rule of viewing is engrafted in Section 67B, which makes even browsing punishable if the content is “depicting children in obscene or indecent or sexually explicit manner”. The law is silent on what happens if you are browsing porn and in one of the sections of the site there are indecent representations of minors that you were neither seeking nor supporting. The makers of the law need to be better conversant with the modus operandi of the sites and ensure a person is not hounded for no fault of his own.
In a country where minors, even today, are wedded and forced into sexual intercourse sanctioned by the society, a country where less than 50 km away from the national capital, a minor girl of 15 is ordered to be raped by a village council since her brother has ran away with a married woman, there isn’t much hope yet of understanding of a child’s rights and violations.
The issue of child pornography is much deeper and needs to be eradicated from the root. But in a country where minors, even today, are wedded and forced into sexual intercourse sanctioned by the society, a country where less than 50 km away from the national capital, a minor girl of 15 is ordered to be raped by a village council since her brother has ran away with a married woman, there isn’t much hope yet of understanding of a child’s rights and violations. The State washes its hands off the matter by enacting stringent laws in a kneejerk reaction to a violation which shakes the collective conscience. But a penal law only punishes. Awareness prevents.
On a lighter note, as sourced from social networking, a man asked a preacher if God created Adam and Eve and if He was keeping a watch over them. On receiving a strong affirmative nod from the preacher, the man retorted, “Ah! So God created the first porn and watched it too!”
And banning of porn was actually a typo. After beef, the government actually wanted to ban pork!
