With no clear definition of pornography under Indian laws, one can only rely on dictionary meanings which would refer to pornography being inclusive of“sexually explicit material that is primarily designed to produce sexual arousal among its consumers.”[1] Pornographic material would typically include magazines, videos, pictures, and such other materialthat contains sexually explicit content and is capable of communication en masse.

The advent of Internet age has made the access of pornographic material easy and prolific. For instance, by just a few clicks, the person can access plethora of content ranging across ethnicity, regions, relationships, and such other categories which exists. The fact that a person is able to access such content on their portable devices and can always re-access the same content at a later date freely, combined with the fact that there is no limit to the nature of content made available, or the languages in which it is available, has led to an addiction in many.[2]

Availability of Pornographic Material Across Various Media

With evolution of the platforms through which pornographic material isnow published and transmitted, the difficulty in monitoring and regulating the same has also increased.The hardships and difficulty in regulating online pornography have also been discussed in the case of Avnish Bajaj v. State wherein a website Bazee.com had a listing for sale of a video shot through mobile phone which featured two school children indulging in sexual activities. Criminal prosecution was filed against the directors of the company owning the website. The Delhi High Court considering the dynamic and multidimensional nature of internet observed in light of the scenario that ‘…the regulation of pornography on the internet has posed a serious challenge to governments and legislatures primarily on account of the nature of the medium….”[3]

There are several platforms which have cropped up in the recent past, which allow its users to create content and publish it on their platform, which has led to them publishing sexually explicit content alongwith other kind of content behind the garb of video on demand mode. One such platform is Only Fans which is a UK-based platform wherein subscribers pay money and watch content created by the creators including sexual content. This platform has provided a boost to the adult sex industry and sex workers have earned huge revenues through this platform. Recently, the website announced that it would restrictsexually explicit content on its website citing certain bank restraints, which was not well received by the audience and hence backtracked by the company on August 25, 2021 [4] which certainly shows that people are interested and are willing to pay for viewing sexual content.

Regulating Pornography

Pornography and the First Amendment in the United States of America

Pornography is perceived differently in different communities globally. In countries where it is perceived as obscene,bad and immoral, it has been criminalized entirely whereas in other countries it has beentreated liberally andonly specific categories such as child pornography, revenge pornography,have been criminalized.Child pornography has been prohibited inalmost all major countries around the worldincluding United States of America, United Kingdom, Italy.The countries which have regulated pornography, have actually provided a certain level of protection to the actors / performers in the industry, as opposed to conservative states like Russia where the industry is riddled with issues related to ill-treatment, low wages, and the likes &[5][6] In the United States of America, there are less censorship rules and pornography, though regulated in certain aspects, is not completely banned as it is covered under the robe of freedom of expression protected under the first amendment to the U.S Constitution.[7]

The U.S. Supreme Court evolved a three-step test in Miller vs California [8], popularly known as the Community Standard Testto ascertain obscenity of material. This test basically evaluates the material as a whole by applying contemporary community standards and in the event where such material as a whole is patently offensive and lacks any scientific, artistic value, the said material is considered as obscene and appropriately penalized under the applicable laws. Using the said Community Standards Test, U.S. Supreme Court has declared few mainstream hard-core pornography movies such as “Deep Throat” released in 1972 as obscene [9] and accordingly such movies had been banned by nearly 23 states in the U.S.A. This test is also recognized by the courts of India.

Indian Scenario

In India, pornography has been treated as an aggravated form of obscenity[10] by way of judicial precedents. While there are no legislations governingpornography specifically, it is covered under laws governing obscenity and is punishable under the provisions of Indian Penal Code, 1860 and Indecent Representation of Women’s Act 1986. In the event where pornographic material is transmitted, published or distributed via computer resource, it is subject to the provisions of the Information Technology Act, 2000 (IT Act), in addition to the earlier cited statutes.

The Indian Penal Code, 1860 (IPC”)provisions lay down the test for obscenity and further lays down circumstances under which an offence is said to have been committed and punishmentfor such offence[11] .Obscenity has been defined to include any material such as book, video, painting, etc. which is “lascivious, or appeals to the pruri¬ent interest or if its effect, if taken as a whole tends to corrupt or deprave a person .[12]” The provision is expansive enough to include acts which relate to the sale, distribution, hiring, public exhibition, imports/ exports, and any other act which puts the “obscene objects” to circulation in any manner. As the words “obscene”, “corrupt”, “deprave” have not been specifically defined, the true import of these words is then left for the interpretation by the courts of law.

Further, the Indecent representation of Women’s (Prohibition) Act,1986prohibitsselling any material such as book, painting, paper, film, figure which portrays women in an indecent manner in any form with only exceptions that such material is for public good or education purposes and for any bonafide use for religious purposes [13]. The Act defines indecent representation of women as “depiction in any manner of the figure of a woman; her form or body or any part thereof in such way as to have the effect of being indecent, or derogatory to, or denigrating women, or is likely to deprave, corrupt or injure the public morality or morals” . Going by this definition, pornographic content would have women represented in an indecent fashion which would in turn lead to such material being in violation of the provisions of this Act. In the case of Aveek Sarkar v. State of West Bengal[15] an article from a German magazine announcing engagement of Boris Becker, a famous tennis player with dark skinned film actressBarbara Feltus was was reproduced and published in Indian magazine titled “Sports World along with a nude picture of the couple wherein Boris Becker’s hands were covering breasts of his fiancée. The Editor and publisher of the said magazine faced charges of obscenity.The Hon’ble Calcutta High Court declined to quash the criminal proceedings and hence an appeal was preferred before the Supreme Court of India. Interestingly, the apex court in the said judgment rejected the insular Hicklin’s test [16] and adopted the generous community standards test as the test for obscenity. The Court focused on the context in which the photograph was set out andstatedthat it did not excite sexual passion or tended to deprave or corrupt the minds of people in whose hands the magazine or newspaper may have fallen but was portrayed in a manner which conveyed the message of racial equality and promoted love and marriage between persons of distinct racial backgrounds.

It is pertinent to note that in this age, the incidence of “pornographic subject matter” is prevalent over the internet, which is sufficiently governed under the IT Act and the rules made thereunder. While the terminology adopted under the IT Act is not exactly on the lines of the IPC, they deal with transmission and/or publication of “sexually explicit material” which thereby is penalizing transmission or publication of pornographic material over the internet [17]. However, possession of said pornographic material for private consumption is beyond the purview of this section [18] and will not be generally tried lest such consumption at an individual level is coupled with any other offence. For instance, where a person forces another to watch pornographic content, it could be a case of sexual harassment.Separately, Section 67B further specifically penalizes child pornography wherein children i.e., person below 18 years of age are shown indulging in sexually explicit acts and the same is penalized severely under the IT Act.

A writ petition[19] was filed in Supreme Court regarding complete ban on porn websites citing the ill effects of pornography on society as a whole including crime against women, increase in child pornographyand the Supreme Court declined passing any interim order citing that it is a violation ofan adult individual’s right to personal liberty underArticle 21 of the Indian Constitution to watch such pornographic material within his private space [20].

Pornography laws in UK

The United Kingdom is not as stringent in its approach of dealing with prevalence of pornography in the country. In United Kingdom, Part 3 ofthe Digital Economy Act, 2017deals specifically with Online Pornography and Section 15 of the said legislation defines pornographic material and the said legislation emphasizes on age verification of any person viewing pornographic material over the internet. However, the said legislation has not been enforced due to certain procedural lapses [21].It is pertinent to note that creation and publication of pornographic material is not penalized, and the same israther considered as anykind of movie and/or video for which a special category of classification has been created wherein such content can be published, viewed and commercially made available after obtaining appropriate British Board of Film Certification (BBFC) classification certificate.

Under the BBFC guidelines there are two categoriesin relationto pornographic material-issuance of an 18 certificate and R18 certificate. The 18 (Suitable for Adults) certificate is issued for such content in whichthere are more explicit images of sexual activity in relation to sex work [22].Sex Works containing only material which may be simulated are generally passed under the said certification [23].

R18 certificate is a special and legally restricted classification primarily for explicit works of consenting sex or strong fetish material involving adults. Films may only be shown to adults in specially licensed cinemas, and video works may be supplied to adults only in licensed sex shops.Sex works containing clear images of real sex, strong fetish material, sexually explicit animated images, or other very strong sexual images come under the R18 category.Video works of consenting sex is permitted under this classification thereby pornography, although highly restricted is permitted and not completely shunned in the United Kingdom and video works of pornography can be created and certified under this R18 classification. However, video works containing materials which are likely to encourage sexually abusive behavior or portray sexual activity which involves real or apparent lack of consent and certain other instances are not permitted under the said category. While this does take away from the categories which play into such fetishes of individuals and are available on several pornographic websites, the law does not bar anyone from depicting sexual activity which appears to be consensual and would not be invoking images or responses (in the viewers) which are predominantly violent in nature.

The government further, under Criminal Justice and Courts Act, 2015 penalizes publication of any private sexual photographs and videos without the consent of the individuals featuring in such photograph or film, which is also known as ‘revenge pornography’ [24].

In essence the laws ofUK penalize certain specific pornographic materials such as materials featuring children, or any material published without consent and publication of extreme pornographic material instead of penalizing any and all kind of material[25] which depicts sexually explicit / pornographic content.

With a population which is now engaging in dialogues across several sensitive subjects in the country, it is time that the laws around depiction, portrayal and transmission of content which has sexually explicit images, videos are relooked. Furthermore, having low threshold for instances whereby a subjective matter like obscenity can be twisted out of context, and a parochial approach is taken to justify the imposition of such onerous restrictions, will only lead to a higher number of cases being tried before the courts of law. Adopting an approach which balances the demand of the viewers, while ensuring that the audience may not be matured enough to be subject to such explicit content, may bring about a change which is necessary in law, and, in society. Making a clean break may not be possible, but to assume new laws which would empower individuals to make personal choices, about what they wish to view, read, or communicate [without causing harm to another], may be like a breath of fresh air.

Krishi Shah, Associate, TMT Law Practice

Krishi is an Associate at TMT Law Practice. She has completed B.B.A LL.B. (Hons.) from University of Mumbai Law Academy in August 2021. She has garnered experience by working in media department of law firms and a production house. She has worked on several transactions pertaining to content creation and exploitation and worked on various kinds of agreements including artist management agreements, services agreements, brand solutions agreements, influencer agreements and other agreements and documents relevant in the media industry.

1. Stanford Encyclopaedia of Philosophy. Pornography and Censorship, May 5, 2004, available at http://plato.stanford.edu/entries/pornography-censorship/ (Last visited on August 10, 2021)
2. Online Porn Addiction: What We Know and What We Don’t—A Systematic Review, January 15, 2019, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6352245/ (Last visited on August 11, 2021)
3. Avnish Bajaj v. State, 2008 (150) DLT 769. Justice S. Muralidhar, “The easy availability, even to children, of pornographic material in digital form including video clips, its rapid transmission across the world wide web, and the absence of effective filters to screen out objectionable material from being accessed are factors that compound the challenge.”
4. https://www.pocket-lint.com/apps/news/153545-what-is-onlyfans-who-uses-it-and-how-does-it-work; https://gadgets.ndtv.com/internet/news/onlyfans-ban-porn-sexually-explicit-content-reverse-cancel-decision-plan-creator-sex-worker-advocate-october-1-2518888;
5. https://www.opendemocracy.net/en/odr/russian-porn-stars-arent-just-hot-theyre-also-ostracised-and-exploited/;
6. https://www.theguardian.com/commentisfree/2019/aug/15/why-are-people-silent-about-the-abuses-and-exploitation-in-porn. The plight of porn stars has been discussed by a popular porn star, Mia Khalifa in an interview, wherein she shares her personal experience of the criticism faced by the adult sex industry, being looked down upon by the society due to her profession and her work as a porn star acting as roadblock for her to secure any opportunity in other professions.
7. Obscenity and Pornography by David L Hudson accessible at https://www.mtsu.edu/first-amendment/article/1004/obscenity-and-pornography;https://worldpopulationreview.com/country-rankings/countries-where-porn-is-illegal;
8. Marvin Miller vs State of California, [93 S.Ct. 2607]- Held that“The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, Roth supra, at 489, 77 S.Ct. at 1311, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value”
9. https://casetext.com/case/people-v-mature-enterprises
10. Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881, Paragraph 8 (per Hidayatullah, J.): “Thereis, of course, some difference between obscenity and pornography in that the latter denoteswritings, pictures etc. intended to arouse sexual desire while the former may include writingsetc. not intended to do so but which have that tendency. Both, of course, offend against publicdecency and morals but pornography is obscenity in a more aggravated form.”
11. Sections 292 to 294 of Indian Penal Code, 1862 lay down the punishment for offences related to publication, distribution, sale of obscene material.
12. Section 292(1) of Indian Penal Code, 1862
13. Section 4 of Indecent Representation of Women’s (Prohibition) Act,1986
14. Section 2(c) of Indecent Representation of Women’s (Prohibition) Act, 1986
15. Aveek Sarkar v. State of West Bengal (2014) 4 SCC 257
16. In Regina v. Hicklin, L.R. 3 Q.B. 360 (1868), Lord Chief Justice Alexander Cockburn, writing for the Court of Queen’s Bench, supplied a broad definition of obscenity, based on ascertaining “whether the tendency of the matter is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.
17. Section 67A of the Information Technology Act, 2000
18. “Watching pornography no offence: IPC and IT Act”- by Manoj Mitta on May 28, 2021 accessible at https://timesofindia.indiatimes.com/india/watching-pornography-no-offence-ipc-and-it-act/articleshow/8613854.cms
19. Kamlesh Vaswani vs Union of India, (2014) 6 SCC 705
20. “Can’t stop an adult from watching porn in his room, says SC”- by KrishnadasRajgopalanaccesible at https://www.thehindu.com/news/national/cant-stop-an-adult-from-watching-porn-in-his-room-says-sc/article7400690.ece
21. https://questions-statements.parliament.uk/written-statements/detail/2019-10-16/HCWS13
22. Sex works are works whose primary purpose is sexual arousal or stimulation
23. BBFC Classification Guidelines
24. Section 33 of the Criminal Justice and Courts Act, 2015
25. Defined under Section 63 of Criminal Justice and Immigration Act 2008

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