Opinion Missing the point,again

Pornography is currently in danger of becoming an over-criminalised offence. One of the central contentions of the PIL is that that there is no clear definition of pornography in the law. But recent judgments do define pornography as an aggravated form of obscenity,and as sexually explicit material that often has nudity. Since Independence,Indian courts have upheld strict standards for obscenity and have been over-protective rather than lax,while similar laws have been dropped in England and other Commonwealth countries.

The PIL selectively targets provisions in the Information Technology Act (Sections 66,67,69,71,72,75,79,80 and 85),stating that they are inadequate to deal with the scourge of pornography. Statistics cited in the petition and from other surveys suggest that 30 per cent of global internet traffic is pornography. This figure,however,has to be scaled in relation to internet penetration in India,which is only 10 per cent,or 128 million people.

The petition is unfairly targeting only online pornography and disregards several offline modes of circulating explicit material. It taps into the anxieties of the state about disorderly and unruly technology like the internet,rather than any genuine concern about sexual violence or even porn. The existing penal law adequately covers the offence of making,distributing or selling obscene material,online and offline. The IT Act extends liability to any intermediary or third party when pornographic content is hosted on their website or routed through their service. This means that the web of people who can be held liable for offences related to porn covers anyone who is merely a nodal point in a vast network of illicit circulation (for example,in 2008,a person was illegally detained on the basis of an incorrect IP address). If watching porn is included in this expanding list of offences,then this would include a minister being shown porn in the legislative assembly,and anybody who is curious or just doesn’t have pop-up blockers for every website advertising live cams.

The valid concerns around pornography,especially amateur porn,should be about the rights of people who are captured in pornographic images without their consent. For this,the new amendment to the sexual assault law,though unsatisfactory for other reasons,does an adequate job. Offences include capturing images of a woman in a private or sexual act with a hidden camera. The translation of the bare text of the law to actual use remains a persistent obstacle,as is the case generally for all laws relating to sexual assault and rape,but also for laws on newer technology. The ethics of policing and the awareness of the existence of these offences has to be addressed,especially through pressure on the police.

Judgments on obscenity in India refer to how explicit and sexual content can be found in our mythologies,temple statues,paintings and poetry. This PIL,however,shows no regard for or knowledge of Indian culture,be it 18th century paintings of Radha and Krishna,erotic poetry in Tamil and Sanskrit,or even how young people now access information about sex. In hyperbolic language,the petition describes pornography as moral cancer,a trade more lethal than cyanide: “Watching pornography puts the country’s security in danger”. In itself,porn is nothing more than explicit images that can be compelling,disturbing or even boring. However,Vaswani’s petition overstates what porn does,and describes it as the worst killer. This hyperbole and obfuscation of what causes sexual violence,and the attribution of it to pornography,does not allow us to address gendered and class hierarchies that are more likely to be the causes for sexual violence and brutality.

Our legal regime is playing a hard game of catch-up,even as technology changes,devices multiply and the network spreads. Watching pornography was never a criminal offence,even when the law was formulated in 1856 in England — the courts were concerned about sexual and satirical attacks on the authority of the church. Even if watching porn is made an offence,there is no foolproof technical and legal system to either track people online or impose a ban on the internet. Legal diktat that is indifferent to ordinary desires and lives will not address our concerns about sexual violence and misogyny.

The writer is with the Bangalore-based Alternative Law Forum

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