THE PORN ULTIMATUM?

This article by Adith Charlie, Rajesh Kurup and Priyanka Pani was published in the Hindu Business Line on May 21, 2013. Pranesh Prakash is quoted.

Vaswani, an Indore-based lawyer had filed a Public Interest Litigation (PIL) in Supreme Court, requesting to make watching porn a non-bailable offence. He also wants a complete ban on pornography. He says he has his reasons too.

In a recent incident in the capital, a five-year-old girl was allegedly raped by two men and left to die. According to media reports, the accused had watched porn on their mobile phones minutes before the crime. There has been a 7.1 per cent increase in crime against women nationwide since 2010, as per data from the National Crime Records Bureau. Vaswani believes that the free availability of porn is making the country unsafe for women.

Nirmala Samant Prabhavalkar, member of National Commission for Women (NCW), says that viewing porn, especially at an impressionable age, becomes “an addiction and trains the mind in an inhumane and sadist way”.

According to Google Trends, India ranks fourth in the world for searching the word ‘porn’, a testimony that pornography, mainly electronic, is available across the country. New Delhi has the dubious distinction of the highest-worldwide percentage of searches for “porn” in 2012.

As smartphones become ubiquitous and cheaper (price starts around Rs 3,000) they offer a perfect medium for viewing adult content. A 2011 study by IMRB found that one in every five Indian mobile users wants adult content on 3G-enabled phones.

A different view

Vaswani is not the only crusader against pornography, but is a representative of the minority. The majority favours another strand of thinking: that what an adult views in his private space should not be controlled by the establishment.

They feel that increased censorship of the web would clamp down on the constitutionally enshrined principles of the freedom of speech and expression.

But what is termed as pornography, or what degree of obscenity should be blocked?

Interestingly, the term pornography when used in relation to an offence is not defined in any statutes in India. It is obscenity that has been effectively explained in the Indian Penal Code and the Information Technology Act.

The section 67 of the Information Technology Act states that publishing or transmission of obscene and sexually explicit material in electronic form is punishable. Child pornography, is prohibited under Section 67B of IT Act.

According to the Indian Penal Code (Section 292) a person in mere possession of the obscene stuff for his personal use without any intention of producing or disseminating the material is not culpable.

However, obscenity means different things for different people.

“In countries such as Saudi Arabia, even showing cleavage falls under pornographic purview. So, who decides what is morally acceptable in the Indian society?” asks Rajesh Chharia, President of the Internet Service Providers Association of India.

Technologically possible

A blanket ban on porn Web sites, as is the case in Denmark and Australia (for extreme content), risks banning innocent Web sites too. In 2008, whistle blower WikiLeaks had released the names of sites which were blocked by Denmark’s regulators. Many regular sites were erroneously included in the list. Porn, available in India, is mainly hosted on overseas servers, making it difficult to monitor them, while those on domestic platforms can be easily restricted, according to Vishak Raman, Senior Regional Director of Fortinet, a network security provider. Yet, the technology exists for making a full-fledged ban on porn possible.

In case the Supreme Court upholds the PIL, the onus of implementation will be on the telecom regulator, the Department of Telecommunications and, the Department of Information Technology.

Raman says that companies like his can provide a ‘semi-inline’ solution, for a multi-million dollar fee, to block porn. It is unlikely that DIT and DoT will bear the cost of the entire exercise.

Thus, the ISPs would have to make the investments for a porn-free internet, says an industry official.

Sexual Behaviour

But then could pornography be solely responsible for aggressive sexual behaviour? Contemporary literature does provide some insights. Watching pornography does contribute to an increased risk of violent behaviour but only in men who have aggressive sexual tendencies, as per research by Neil Malamuth, a professor of psychology at the University of California, Los Angeles. In other words, porn does not turn all ordinary men into rapists.

“There has been definitely a spurt in sex-related crimes in the country. However, we can’t say that a total ban on porn will free the society from such evil, but yes there should be a restriction on content on Internet,” NCW’s Prabhavalkar said.

On a TV talk show, porn star and actress Sunny Leone had said: “It's complete nonsense to blame rape on adult material out there. Education starts at home. It's the moms and dads sitting with their children and teaching them what is right and wrong.”

When eWorld approached Leone to understand her outlook on the PIL, husband Daniel Webber said that they do not have any views on the matter. “Whatever is decided by the Supreme Court in this country is decided,” he said.

The Establishment

Pranesh Prakash, a policy director at the Centre for Internet and Society, says that the government cannot cite the IT Act and block content on grounds of it being immoral following the 2009 amendments to the Act.

In 2010, the Bombay High Court, had rejected a PIL filed by Janhit Manch. The NGO wanted the court to direct the government to block pornographic Web sites on the grounds that they have “an adverse influence, leading youth on a delinquent path”. The court held that it would be unconstitutional to do so as it would be infringing on the citizens’ freedom of expression.

Further, the Court observed said that the petitioner should file a complaint under the IT Act, if he feels aggrieved.

Says Nithianandan Balagopalan, a Mumbai-based lawyer: “Any law that falls foul of fundamental rights of a citizen of India is open to be challenged in a court of law and can be struck down as being ‘ultra fires’ if indeed found to be so.

Yet, Vaswani believes he has a strong case. “The court (in the 2010 Janhit Manch PIL) might have passed orders safeguarding the freedom of free speech and expression. What we are discussing here is not speech, but conduct. This cultural pollution has to stop,” he was quoted in the media.

Some experts believe that proper enforcement of existing laws are more important that enacting new ones. “There should be stringent punishment for those involved in organised production and distribution of pornographic material. The police must not be lenient with such people,” says Ramesh Vaidyanathan, Managing Partner of Advaya Legal.

Around the world

India is not the only democracy in the world to consider a ban on pornography. The latest to join the ranks is Iceland, which too wants a ban as part of its attempts to completely do away with the country’s sex industry. In 2009, it introduced fines and jail terms for those who patronise prostitutes, and later in 2010 it banned strip clubs.

A ban on porn would mean restrictions on the use of the Internet. A free Internet stimulates innovation. The world's largest democracy and a model for much of the developing world, India is set to become one of the most important test cases for the future of Internet freedom globally. Any decision by the Supreme Court on this front would be path-breaking, ramifications of which would be felt for a long time to come.