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When the case of Raj Kundra came into the limelight, we all started questioning the pornography laws in India. On February 4, 2021, the Mumbai police arrested five people for allegedly forcing women to act in porn movies. Police continued their search for companies that produced such content and companies that distributed them. One UK production house got caught by the police, and its executive Umesh Kamat was arrested by them.
Raj Kundra's alleged connection with Umesh was the reason for his arrest. His arrest instigated a flurry of questions in the mind of every Indian citizen. Is it illegal to upload pornographic images? What if it's consensual? To answer them, we need to review the pornography laws in India.
Cyber pornography can be defined as the simple act of using the virtual space to create, display, import, distribute, and publishing obscene materials. Pornography has become a grey area in the legal domain, where it is not illegal, but it's not entirely legal either.
In India, certain pornographic acts can lead to imprisonment of up to 3 years and fines up to 5 lakhs. The following actions are mentioned in Section 67 of the Information Technology Act, 2000.
Publication - It includes uploading any obscene material on a website, social media site (WhatsApp, Instagram), or any digital portal where third parties can view such pictures or videos.
Transmission - includes sending obscene pictures or videos to any individual via email, WhatsApp, messages, or any other version of digital media.
Causing to be published or transmitted - A very wide terminology that could impose liability on intermediary online portals where the accused has published obscene images or videos.
Publication, transmission, and causing to be published any obscene material in digital form is an offence under Section 67A of the Information Technology Act, 2000. Any individual held guilty under this section can get imprisoned for five years and fined up to 10 lakhs. Hence, It is legal to watch porn or store pornographic content, but it is illegal to publish or message any obscene material.
However, watching or storing porn can become illegal if it involves a minor. Browsing or downloading child pornography is a punishable offence. According to Section 14 of the POCSO Act, 2012, using a child or children for pornographic purposes is punishable with at least five years prison time with a fine.
There are many tests to confirm if the material published is obscene or not in the legal world. An old Hicklin test prescribed obscenity test as:-
"a method of 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."
However, this old test got struck down by the Hon'ble Supreme Court in Aveek Sarkar vs. State of West Bengal & Anr (2014). The judges adopted a test where they will use current community standards in the society and the judicial precedents to decide whether any published material is obscene or not.
In conclusion, the provisions mentioned above and the ruling of Aveek Sarkar clearly show that hosting a website that displays any pornographic content is illegal under Section 67 and 67A of the IT Act, 2000. However, the grey area that prevails in India regarding the legality or illegality of pornographic materials should be regulated as soon as possible.
For a more detailed understanding, refer to the case study of "Aveek Sarkar vs. State of West Bengal & Anr" by clicking the case below.