The government’s flip-flop on the issue of banning websites that carry pornographic content highlights both policy confusion and the difficulty involved in having a policy on it. In its zeal to address the concerns of the Supreme Court over the menace of child pornography the government asked Internet service providers to block 857 websites. The order was withdrawn no sooner than it was sought to be enforced. However, sites that show child pornography will remain blocked. The onus may now be on intermediaries to ensure that elements of child pornography are not mixed in general pornographic content. But this process will involve determining the age of those featured. The immediate reaction of some sections of civil society appears to be that any ban on watching pornography encroaches on citizens’ right to privacy, and that what they should or should not watch inside their home ought not to be anyone’s concern. Also, a cyber ban may be counter-productive as technological means to bypass such restrictions are available. However, is a hands-off policy on online pornography in consonance with the legal position? While there is no single law that criminalises the gamut of making, distributing, publishing and watching pornographic material, there are enough legal provisions to bring pornographic content under the ambit of criminal law.
Section 292 of the Indian Penal Code makes distribution of obscene material a crime; Section 67 of the Information Technology Act makes it an offence to publish or transmit obscene material in electronic form; and the Protection of Children from Sexual Offences Act makes using children in pornographic acts and storing such material for commercial purposes punishable. There is a law that prohibits indecent representation of women. Therefore, making pornographic films involving children or in a manner that represents women indecently is illegal. Uploading such content on the Internet is an offence too. Yet, it may be argued that it is no crime if adults consent to be videographed during sexual acts and the footage is uploaded from outside the country. In any case, watching such content in the privacy of one’s home can be no crime. Enforcing such a body of law is not easy. Even the question of what constitutes pornography may be open to misinterpretation, unless one falls back on known definitions drawn from various legal provisions — something that appeals to the prurient interest, or tends to corrupt or deprave. In the circumstances, the most pragmatic way for a government to deal with it will be to be vigilant against child pornography while moving against other alleged violators only in specific cases. Otherwise, it may be difficult to stem the tide of intrusive enforcement.