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MULTI-FACET DEVASTATING IMPACT OF PORNOGRAPHY IN INDIA: A SOCIO LEGAL STUDY WITH SPECIAL REFERENCE TO LAW by -Navdeep Kour & Kartik Sharma

ABSTRACT

In recent years pornography explosion is evidently seen in India and the whole world too. Availability of smart phones and cheap data provides the access to pornographic contents anywhere at any place to anyone. It is really worrisome for any country where teenagers are prime targeted audience of the pornography industry and children are sexually abused and depicted as normal sex partners in pornographic materials which is established by fact that millions of visits on porn websites depicting child pornography despite of ban. Banned Sexually explicit materials are available due to technical miracles which need no much expertise. Easy development of websites, VPN techniques and availability of proxy servers practically make pornography uncontrolled. Pornography is present since decades and print media proved a revolutionary invention but there is no doubt that internet proliferates the distribution of sexually explicit materials to millions of people just by a single click.

Number of legal provisions and regulations are there in India to regulate the obscenity and cyber pornography including child pornography, but till now no concrete chapter is included in penal Act or a complete legislation which cover all the aspects to regulate the over increasing menace of the pornography. Legal provisions are scattered here and there in different Statutes. Therefore, in the context of obscenity especially after internet, and particularly child pornography, and immorality, the government of India has been consistently putting ‘reasonable’ restriction through various enactments. India is lacking behind in tackling the increasing menace of pornography.

Therefore, the present study aims to study the multi-facet devastating impact of pornography with reference to the legal provisions and regulations to regulate the over increasing menace of pornography in India and further helps the common man and researchers to understand the impact of the pornography on individual, family, and the society.

KEYWORDS: Pornography in India, Impact of Pornography, Child Pornography, Cyber Pornography.

INTRODUCTION

“Pornography is a process, not a thing. That process involves cultural shifts, norms, regulations, social relations, taboos, and sanctioned/unsanctioned pleasures and desires.”2

– (Walter Kendrick)

Sex has always been a motivating and enigmatic force in human life. In heaven, Adam and Eve ate the forbidden fruit, were confronted by the ferocity of this unfathomable power, and were subsequently driven out of heaven as punishment. It has been quite effective, human psychology’s motivating element for mysteriously human behavior. Since the beginning of time, people have acted in a certain way. Even today, without a surety, there are no disagreements. All men have a strong drive and great interest in learning everything there is to know about it ages. Simultaneously, when the sexual behavior is depicted in any medium, Pornography is a phrase that has been used to describe one of the most serious issues as well as a threat. Human interest is being questioned, causing tremendous concern for the social system and the lawmakers

Although lust and fantasies for different sex positions, sex partners, and sexual crimes are a part of all living species, only humans are aware of them. Humans have always had a fascination with sexuality and how it is represented, even though the term “pornography” is a recent one. It was given this name in the seventeenth century. Pornography has a long history in civilization. It is impossible, if not possible, to remove it from society, and it is even undesirable to do so.

India has a strong foundation of sexual activities in world history which was evident in literature art and engraving on walls of temples. Sexual intercourse was treated as a science. India used it for the purpose of sexual education. Sexuality and sensuality were well engaged in ancient Indian society validated by literature and art. Eroticism in ancient India was a well- studied concept as shown by the “Kamasutra”, written by MallanagaVatsyayana sometime during the 2nd century.3

With the advancement of technology, the depiction of sexuality was given a new name:

pornography, which was a poorly defined phrase at the time. Images, photos, films, art, literature, animation, and video games are only some of the pornographic items available. With simple access and massive reach around the globe, Internet technology elevates it to a new level. The internet’s speed is increasing, making it more adaptable. Pornography is now accessible to everyone, regardless of age, gender, or nationality, thanks to smart phones and inexpensive data.

MEANING OF PONOGRAPGHY

Indian law nowhere defines the term ‘Pornography’. Even the term is not statutorily defined in the United States of America and other nations as there is, no standardized set of decent ethics and morals, there cannot be any uniform definition of this term. The word pornography, “derived from the Greek word porni which means ”prostitute” and “graphein means to write, was originally defined as any work of art or literature depicting the life of prostitutes.”4 “Pornography has been defined as the viewing of explicit materials in the form of pictures and videos, in which people are performing intercourse with clearly exposed and visible genitals. Pornography can be described in two elements, First is that pornography is “explicit and includes images of exposed genitals and/or depictions of sexual behavior that are unconcealed, Second is that pornography is “intended to increase sexual arousal.”5

Pornography is not a thing but a concept, a thought and a structure, different cultures at different times categorize different texts as pornographic as a way to control forms of knowledge and thus power relations between groups. Pornography changes from country to country and era to era depending on the institutions managed by powerful groups for their own ends, but all the same it makes sense to describe pornography as “any presentation, by no matter by any way a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes. Further it is stated that “each state shall ensure that, as a minimum, producing, distributing, disseminating, importing, exporting, offering, selling, or possessing for the above purposes, child pornography. Pornographic contents are generally depicted by the symbol shown in the below figure i.e. XXX.

Symbol Used to Represent Pornographic Materials6

HISTORY OF PORNOGRAPHY

Pornography has deep roots in all the societies and communities of the world depending on their cultures and style of living. Evidence of history shows that pornography is available to enjoy sex and used as a sex education in the liberal societies and as lust for religious purposes. It was primarily for happy satisfied married life, it was not for leisure and to educate the young ones about the sexual activities before they entered into wedlock. Classical forms of art depict a variety of erotic images, although they are very different from contemporary pornography. 7

·  ANCIENT ERA

Pornography has deep roots in society, and it is impossible, if not impossible, to eradicate it. Sensual and sexually explicit materials are not new; a lengthy history demonstrates their significance and widespread acceptance in all cultures and societies. Pornography and sensual materials have existed since the dawn of time, but new research has revealed that ancient culture was significantly more liberal and channelized than modern culture. Pornography is a phenomenon that has no definition, even though its origin is from the French word pornography, which means “stuff capable of causing arousal in the viewer.” Paleolithic people sculpted representations of pregnant women with big breasts and hefty thighs thousands of years ago.

But these are not pornography as such and archaeologists suggested these for religious purposes showing fertility. Religion and sex cannot be separated. Under Buddhism, it is believed that “Budha” lives in the “Yoni”. It was well known that sex is the essential path to the Moksha. Ancient cultures were far more liberal or open in terms of sexuality and its depiction with astonishing modes like depicting the sexual things that “include sexy underwear from the Bronze Age, ribald frescoes from Athens and cloth condoms that were dipped in milk.8

·  MEDIEVAL TIME

Pornography in the medieval period is more based on the sexual depravity and hypocrisy of religious persons and other working classes. Manuscript “Decameron”, containing hundred erotic and sensual stories written by Giovanni Ocasio, who was an Italian poet. Other peculiar examples of erotica and the renowned erotic manuals, such as the Arsamatoria9, writing that is enthralling and arousing. In the sixteenth century, literature was primarily used for religious goals, i.e., to encourage the regime to engage in private worship of God, but it was also sexually provocative. These were both personal and widespread. Literature, riddles, jokes, and political satires are examples of pornographic works from the time period. These were mostly available to the wealthy and elite, regardless of their population.

Churches ruled and regulated people’s sexual behavior prior to the usurpation of the nation state. People were punished by the churches, excommunication, imprisonment, and other writing that is enthralling and arousing. In the sixteenth century, literature was primarily used for religious goals, i.e., to encourage the regime to engage in private worship of God, but it was also sexually provocative. These were both personal and widespread. Literature, riddles, jokes, and political satires are examples of pornographic works from the period. These were mostly available to the wealthy and elite, regardless of their population.

·   MODERN ERA

Through historical developments, pornography emerges as a class in connection with records. Modernity is related to technological advancements, and pornography is widely recognized as a major component of modernity. Pornography was depicted in art and literature by ancient peoples, but with new technologies, pornography may be consumed from a wide range of sources. After print and motion pictures, pornographic content was freely available in the form of DVDs and CDs, which could be watched secretly on DVD/CD players at home, giving viewers in the next century additional options and ease of access to see sexually explicit items. The evolution of motion pictures, video, CD, and DVD players made it feasible to watch all The first pornography film was “A L’Ecu d’Or ou la bonne augerge” released in France in 1908. An X-rated Argentinean film El Satario, also came in somewhere between 1907 and 1912. Both these films came at almost the same time but this was the beginning of erotic impales in motion pictures. And it is rightly said that:

“From the beginning, early modern European pornography used the shock of sex to test the boundaries and regulation of decent and obscene behavior and expression in the public and private spheres, criticizing and even subverting religious and political authorities” as well social and sexual norms.10

“The Obscene Publication Act of 1857” was the world’s first law prohibiting the publication of obscene materials, yet there was little documentation or mention of criminal proceedings or convictions involving pornography.

IMPACT OF PORNOGRAPHY

“Ban or no ban”, India is watching more porn than ever. In 2015, India knocked out Canada to grab the third position after the US and Britain in visiting one of the world’s largest adult websites Pornhub”.11 In 2020, Pornhub, by analyzing the data revealed that India is the biggest market for pornographic content. The impact of pornography is evidently seen on all the parts of life, not only personally but socially also and on the whole of the society. Pornography has full potential to alter the perceptions and then the behavior of its viewers irrespective of age and gender. In total, all of the social and legal patterns can be distorted.

Effect on Women

Most apposite is the manner in which they eroticized the relations and sexual activities between partners depicting the dominant sexual aggression of men over women, where women are generally shown as inferior to their male counterparts.

The well-known feminist dictum: “Pornography is the theory and rape is the practice” has raised serious concern,12 especially among parents and policy makers. Still just because pornography might portray some women accurately this does not mean that many other women are not defamed by its representations. Perhaps pornography injures the reputations of women who do not desire sexual subordination! Since its audience may infer from depictions of women enjoying such treatment that all women enjoy such treatment.13

According to a 2010 study that analyzed 304 scenes from best-selling pornography videos, almost 90% of scenes contained physical aggression, while nearly 50% contained verbal aggression, primarily in the form of name-calling. Targets of these displays of aggression were overwhelmingly women and either showed pleasure or neutrality in response to the aggression. Some studies that have shown nearly 90% of pornography depict violence while other studies have placed the prevalence at only 2%. One of the most disturbing facts about the prevalence of violence in porn is that nobody can agree on what they consider to be violent content. “What can be proven rather definitively is the association between pornography use in general and violence against women”.

Effect on Teenagers

Teenagers are the most fragile section of society who are trapped in the abuse of the internet and it must be tackled with utmost priority. Adolescents and children are generally exposed to sexually explicit content at an early age. The more problematic it becomes because the teenagers are naturally curious due to their age hence are more prone to hidden or secretive matters. Hormonal changes create natural interest in sexual activities. Their curious brain becomes easily addictive when exposed to pornographic content frequently. Online pornography markedly affects the sexual behavior of adolescents which can have profoundly adverse effects on mind, body, and psychology. Obvious consequences are not unexpected in the preview of studies conducted and showed that the development of the brain of the teenagers they are not able to quick use of their front lobes “the portion of the brain that controls impulses and allows for rapid, smart decision making”.14

Teenagers get exposed to pornography either accidentally or watched due to curiosity when heard from others or peers are talking about it. Initially, teenagers may not feel comfortable watching pornographic content. They may feel fear or shame while some others from the beginning want to continue watching it.

Effects

of Pornography on Young Persons15

Studies reveal that teenagers irrespective of their sex, immediately get indulge in sensual, sexual fantasies. The porn industry takes advantage of this to increase their profit multifold.

Effect on Transgender

The sexual shame on attitudes towards transgender people was associated with greater prejudice, essentially stating that those who felt more shameful about viewing transgender porn performers have been “more likely to discriminate against the transgender community”. This discrimination often comes in the form of harassment, threats, “exposing” or outing transgender people, violence, or revenge porn. Revenge porn or non-consensual image sharing is defined as disseminating naked or semi-naked pictures taken un-consented, often after a breakup or argument. A study conducted by CIPHR and Data & Society Research Institute showed that the LGB community is disproportionately affected by revenge porn.

They found that 15% of LGB internet users had been threatened with revenge porn, as compared to a rate of 2% amongst heterosexual users. Even within this data, it is seen that the transgender community was not accounted for, reflecting a widespread lack of empathy towards their plight. A 2009 report found that “50% of people who died in sexual orientation motivated hate crimes were transgender women”, with genital mutilation a frequent occurrence. While hate crimes and sexually violent crimes are differently motivated, the biggest contributor to hate crimes is racial crimes, showing that being both LGBTQ and a person of color compounds the violence faced.16

Effect on Family

Studies reveal that men consume pornography more often and frequently than women. Men by nature have more cravings for sex than women, which is a popular myth. But, yes social stigmas and patriarchal systems induce men to view more pornographic materials and allow them to carry out sexual activities to pacify their lustful desires. Findings indicate that “there are both positive and negative effects of pornography used within committed relationships”.17 Frequent viewing of pornography raises the bar of their sensual thoughts and desires in turn most of the time after continuous consumption they feel less satisfied with their marital sexual relationship. Men want to enhance as well as different levels of activities as that is shown in porn materials. For the thrill, they opt for group sex, wife swapping, unnatural sex, violent sexual activities, and even rape. With the invention of the Internet technology, “the sex industry has profited from an unprecedented proximity to the home environment”.18 “For men, pornography use reduced the positive relationship between frequency of sex and happiness”.19 Effect on the Society

Societal setup is facing the turmoil of lifestyle, sexuality, and fulfillment of desires. Age, gender, and relations all take back steps and are dominated by sexual and sensual desires without boundaries. “According to social bonding theory another important bond is belief: a society‘s value system entails belief in social rules and respect for the people and institutions that enforce them. If such beliefs are weak or non-existent, people are more likely to engage in deviant behavior.”

Pornography Fuels Sexual Crimes

It’s widely disputed whether porn directly influences a rape culture or other sexual crimes. What is clear is that the matter of consent and what a healthy relationship looks like needs to be tackled head on in the school curriculum, so that boys and girls learn to respect one another and girls know to raise the alarm if they do experience abuse. Experts agree better sex education is crucial. “What is needed is open, serious, honest conversations about sexual consent, about sex in relationships and about the broader context and the complexities [of sex]20

Sexual offenses increase with increased access to the Internet where everything is available at the fingertips of the user. Unluckily, it is evidently recorded exceptional growth in the circulation of child pornographic material, in various forms like videos, images, animations, comic characters, etc. which are widely shared on various online platforms. Women are going through two faces, on one hand, there is marked upliftment in education, carrier, and development, and on the other hand, she is still treated as a commodity for the fulfillment of sexual pleasures.

Pornography when going astray limits this scale of obscenity in any society through different forms of pornographic material which depicts the exploitation of women and children involved in sexual activities solely for commercial purposes. And the State being a “patria parentis” i.e. a https://www.theguardian.com/world/2021/mar/29/is-pornography-to-blame-for-rise-in-culture(last  visited   on March 27, 2022)

guardian and promoter of social and community welfare, has to step forward to curb the ever- increasing menace of any social evil. But unless and until social awakening with strict legal provisions is there, it is not easy to tackle the outbreak of pornography.

A large number of legal provisions and regulations are there in India to regulate obscenity and cyber pornography including child pornography, but till now no concrete chapter is included in the penal Act or complete legislation which covers all the aspects to regulate the ever-increasing menace of pornography. Legal provisions are scattered here and there in different Acts. These must bring together in improvised format to tackle over-increasing child pornography, revenge pornography, human trafficking for purpose of pornography, violation of age verification to view pornography. Laws that deal with Pornography and pornographic obscenity are as follows: PROVISIONS UNDER THE CONSTITUTION OF INDIA

Men have always strived hard for the eradication of prevailing evils in society and focused their minds to solve the problems persistent in society but it worked only to some extent as an accidental factor. The foundation of growth and development is actually men’s deep insight and a keen interest in human progress. Undoubtedly, freedom of thought is a significant factor but with restricted speech as well as expressions freedom of thought is of no use. Men should not be misled in the expression of their thoughts otherwise it can be led to disastrous consequences, either to stagnation or to the explosion of the revolutionary activities departing and straying from the right stream. Both the strict control of the thoughts and expression or the violent outburst is conducive to social order and progression of the society under rule of law.

Delhi High Court,22 gave a remarkable judgment regarding sexual preferences and liberties according to Article 21, The celebrated decision described that “liberty is the right to define one‘s own existence” in relation to own self as well as to the universe and the mysterious human life. Under the compulsion of the state, manhood cannot be defined. Delhi high court expanded this liberty sensitively including choice of sexuality, sexual identity, and choice and preferences of partners, real or imagined.23 At the heart of it lies the liberty to choose the person to enter into a romantic relationship whom and how to have sex with or in the pursuit of sexual pleasure, pornography or erotica is a warmly welcomed companion. Article 21 guarantees this, wrapped in privacy and personal liberty, choosing all measures for consensual sexual pleasure free of social or governmental restraints. Penalization of all types of pornography is against the constitution providing mandates24   but for the promotion of welfare and public order, decency, and morality, the government has a right to impose “reasonable restrictions on the freedom” under Article 19(1) (a) through the operation of existing laws are to be made to take action against unlawful or illegal activities.

In the Case of Kingsley Corpn.v.Regents of University of New York25 dealt with Lady Chatterley’s lover case the Apex Court of USA upheld that propagation of adultery does not offend the freedom of expression. But the Indian constitution provides reasonable restrictions under Art.19 such that freedom of expression and speech is not unbridled and the same is true in the context of the sale and publication of obscene contents.

In ChanderkantKalyandas v. State of Maharashtra and Others26, the SC observed that “the concept of obscenity would differ from country to country depending on the standards of morals of contemporary society” and “ the definition of ‘obscene’ having regard to the standards of contemporary society in which it is read.” The central government recognized the loopholes observed in “likely audience test” and opined that in the modern age of technology, community- based standards have strong redundancy.

Perceptive of the apex court was based on logics and judgment was based on evolving “Responsible Reader Test”27 every judge should have to put himself/herself at the place of the reader of any age who might have a book and then proceeds to appreciate the possibility of “influence the book is likely to have in the minds of the readers.

PROVISIONS UNDER THE INDIAN PENAL CODE

The term “obscene” is originated from the Greek word “ob skein” and the court also felt difficulty in defining the term and what is obscene and what not? Section 292(1) defines the meaning of “obscenity” and provided that any material or any part of the materials will be said to be obscene if it is licentious or lecherous or any part of the material has the tendency to “corrupt or deprave” the people. Section 292(2) explains the punishment for the sale, distribution, etc. of obscene materials. Section 292(2) states that a person who is involved or receives profit from any trade in the itinerary that he has knowledge or belief that such obscene materials, objects or content are used to;

  1. Sells, distributes, lets to hire, publicly exhibit or put into circulation any obscene
  2. Imports or exports obscene material or knows that such material will be put for sale, distribution or

Section 292 and 293 were inserted by the Obscene Publication Act, 1925 to execute the requirements of the “International Convention for the Suppression of the Circulation of and Traffic in Obscene Publications”. India became a signatory of it in 1923 in Geneva.

Highest Court of India in the case of Ranjit D Udeshi v. State of Maharashtra,28 held that, “There is, of course, some difference between obscenity and pornography in that the latter denotes writings, pictures, etc. intended to arouse sexual desire while the former may include writings, etc. not intended to do so but which have that tendency. Both, of course, offend against public decency and morals but pornography is obscenity in a more aggravated form.” INDECENT REPRESENTATION OF WOMEN’S ACT, 1986

It is prohibited to represent any female or her body part in an obscene form provided that such representation will harm public decency and morality. “The Indecent Representation of Women (Prohibition) Act, 1986” was passed to regulate the lewd depiction of a woman or any body part of the women in the different fields of entertainment, mass media, etc. It is stressed on contents which have tendency to “deprave or corrupt”, perplexed indecency with immorality29. Under the provisions of the Act, 1986, it is prohibited to sell, publish, publish, cause to publish to arrange or participate, in representing women in an indecent mode in any advertisements or pictures or motion picture, etc(section 3).

The Act also prohibited the “ publication or sending by post of books, pamphlets, papers, slides, films, writing, drawings, paintings, photographs or any other medium of representation. Indecent representation of women” These provisions are in consonance of the morality and standards of the society and completely prohibit any act, a representation which shows women or her body part to depict it in an indecent manner which is against the general public morality and also disgusting, demeaning towards the women.

THE INDECENT REPRESENTATION OF WOMEN (PROHIBITION) AMENDMENT BILL, 2012

The Act was passed by the RajyaSabha but lost its fate and is still pending in the parliament.

Amendment provisions were included regarding bringing internet and satellite-based communications and cable TV network and online portals like Snapchat, Whats-app, Instagram, Facebook, etc. under the ambit of the Act, 1986. All of the online platforms not only depict women in various indecent representations via literature, images, and videos but also take it to the level of soft-core pornography including children also.

The Indecent Representation of Women (Prohibition) Amendment Bill, 2012 seeks to broaden the scope of the law to cover the audio-visual media and content in electronic form, prescribing stringent penalties which would act as deterrent to violation of the law. The Bill also proposes to strengthen the enforcement mechanism under the law by specifically authorizing police officers not below the rank of Inspector to enter any premises and carry out search and seizure of any material, if there was reason to believe that an offence under the Act has been or is being committed.30

INFORMATION TECHNOLOGY ACT, 2000/ 2008

The twentieth century saw the escalation of many important inventions, the computer, and internet, and information technology. In modern times cyberspace has extremely changed the lifestyle of the masses all over the globe. No human activity is seen without the internet and it sounds strange to think of life without the internet in this modern technologically driven era. But it has proved a bane, a curse in the boon of the modern age. This era of technology has other aspects which are profoundly observed. No one could have imagined that the technology might lead us to some unprecedented, unimagined, unthinkable human activities in the cyber world that would lead to the commission of many crimes.

Though IT Act bans and prohibits the production and distribution of cyber pornography but viewing and downloading pornographic materials for personal use, privately is not prohibited. It was in 2013, a PIL has been filed in the Supreme Court by the lawyer KamleshVaswani challenging section 66, section 67, section 69, section 71, section 72, section 75, section 79, section 80, and section 85 of the IT Act, applying a blanket ban on all type of internet pornography.31

INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES) RULES, 2011,


The “due diligence” shall be contemplated by the internet service providers and rule 3 provides that the Internet Service Providers are bound to know the public about the policies, rules, and regulations to be observed by the users while using hosting service/ Computer Resource of intermediaries and to inform the user that they should not “host, display, upload, modify, publish, transmit, update or share any information which is grossly harmful, harassing, blasphemous defamatory, obscene, pornographic, pedophilic, libelous, invasive of another’s privacy”.32

Sec. 79(2) of the IT Act work in consonance with sec 3 of the Intermediaries Guidelines. Whenever Internet Service Providers are informed by their user/users or come to know that such activity is going on, the intermediary should act accordingly within 36 hours, and diable the activity. Intermediary must kept data stored for 90 days. Here seems that 36 hours is a long period to disable any obscene or pornographic contents of users who are under constant fear and trauma, whereas 90 days is a too short period for preserving data for investigating purposes.

Rule 11 bound the Internet Service provider to publish information regarding grievance officers and his /her contact details so that victim users can complain about the activities mentioned under rule 3. The redressal of the complaint should be redressed within a month from the date when the complaint is received. The law says that Internet service providers have to tell the police as soon as possible if they think someone is using their services for child pornography, for example, through Internet connections, hosting services (using Internet servers), or email. Internet service providers are the companies that sell you your internet service”. It is a Herculean task to regulate cyber pornography because it is not as easy as it seems to be.

Guidelines Regarding Cyber Cafes

“The Information Technology (Guidelines for Cyber Cafe) Rules, 2011” the guidelines regarding managing the Physical arrangement and computer by the government under section 6 and are as follows:-

  1. It is provided that in any cyber cafe where there is partition or cabins formed, they shall be equal to less than 5 feet in height from the level of the floor.
  2. Computers in cyber cafes should be placed in such a way that their screens faced the outdoor
  3. Cabins are not be used by minors unless accompanied by their parents or
  4. Clocks of all the computers shall be set according to the Indian standard time.
  5. All the computers should be provided with filters so that no one can access child pornography or other types of criminal obscene activities and also take precautionary measures to avoid any kind of illegal activity in this regard carried from their computers.
  6. Every cyber cafe should put or hang a display board with information regarding the prohibition of viewing and downloading pornography and other sexually offensive
  7. Cyber cafe shall maintain a record of the users in the log register and also include reasonable measures to prevent users to tamper with the settings of the computer
  8. Record of the staff for 1 year shall also be maintained by the cyber cafe.
  9. Information so recorded shall not be misused or altered by the cyber

To date, these guidelines are not followed strictly. People for the monitory benefits taking advantage of the curiosity and lust of youth and provide them cubicles where they not only watch pornographic contents but also do replication of such materials with their minor partners. Authorities are also reluctant in applying the guidelines. Such useful rules failed due to the lack of cooperation between people and the authorities. The sad part is that teenagers are trapped in the web of the pornography world due to the easy availability of space and privacy, no one bothers.

PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012

It is immoral as well as illegal to use a child for pornography. This Act covers the offenses of any act to use, produce, transmit, publish, and distribute sexually explicit contents establishing that any child is sexually exploited or child faces sexual abuse and used for pornography purposes. The overall aim of POCSO Act is to protect children from “sexual exploitation and degradation” because pornographic content including children must be considered an extreme form of exploitation and hence the most heinous crime against children.

The “child” is defined as anyone who is below “18 years of age” (section 2(1) (d)) and protects them. Child includes both the sex i.e. female and male child. Child pornography under this Act also prohibits any kind of representation of child or sexual organ of child or child involved in any sexual activities or any vulgar and obscene representation through an agenda or commercial purpose in TV shows or cyber activities, is illegal under this legislation.

Chapter III specifically provided that if a child is used for any expression with intention of fulfilling a sensual desire or sexual indulgence as an offense. The POCSO Act specifically protects and prevents minors from crimes related to sexual activities to protect the interest, growth, development as well as well-being  of the children. Provisions are gender-neutral.

Section 13 of the Act33, defines the offense of child pornography stating that any person using “child in any form of media for the sexual purposes and gratification” will be held guilty of child pornography whereas section 11(iii) consider any act as sexual harassment of a child if any object or media is shown to a child for pornographic purposes.

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES (AMENDMENT) ACT, 2019

Recent disturbing incidents of recording child sexual abuse and uploading it on pornographic websites or online portals are very disturbing and need to be tackled stringently. The bill was presented in RajyaSabha by Mrs. SmritiZubinIrani, Minister of Woman and Child Development. The Act got the assent of the president on 5th August 2019. Protection of Children from Sexual Offences Act, 2012 is substituted. For the first time child pornography is defined and also the Act not only enlarge the definition of aggravated sexual assault but also enhance the punishment considerably and also enhanced punishment if any person commits penetrative sexual assault on a child under 16 year of age.

Adult pornography is freely available and perfectly legal to view, download and store for private use but child pornography or child sexual abuse materials are prohibited to view, download and store. Punishment is provided under section 14 for use of a child for pornography. Section 15 provides an award of punishment if a person stores pornographic material involving child34. Punishment is provided for the person who makes, prints, publishes, makes available, imports, exports, advertises, and sells child pornography. POCSO Act, 2012 provided minimum punishment is of 1 year of imprisonment. Anyone who views and accesses child pornography is punished with a minimum of 6 months imprisonment which may be extended up to 10 years.

33 “Whoever, uses a child in any form of media (including programme or advertisement telecast by television channels or internet or any other electronic form or printed form, whether or not such programme or advertisement is intended for personal use or for distribution), for the purposes of sexual gratification, which includes–(a) representation of the sexual organs of a child;(b) usage of a child engaged in real or simulated sexual acts (with or without penetration);(c) the indecent or obscene representation of a child, shall be guilty of the offence of using a child for pornographic purposes”. “Explanation.–For the purposes of this section, the expression ”use a child” shall include involving a child through any medium like print, electronic, computer or any other technology for preparation, production, offering, transmitting, publishing, facilitation and distribution of the pornographic material”.                        Available                                                                                               at https://www.advocatekhoj.com/library/bareacts/childrenprotection/13.php?Title=Protection%20of%20Children%2 0from%20Sexual%20Offences%20Act,%202012&STitle=Use%20of%20child%20for%20pornographic%20purpo ses (last visited on March 28, 2022)

Storage of child sexual abuse materials for purpose transmission, propagation, distribution or for displaying in general or at the commercial level by any person shall be punished with 3 years and can be punished up to 5-year imprisonment with or without fine and if such person is convicted with same offense subsequently shall be punished minimum of 5year imprisonment which can be enhanced up to seven years and fine.35

For the protection of children from internet pornographic contents, the Bombay High Court formed a committee that provides the following recommendations in its “53rd Report”:

  1. Websites depicting child sexual abuse should be blocked;
  2. Children should be prevented from using cyber cafes to view sexually explicit materials;
  3. Cyber cafes should be prevented from becoming means of “publication and propagation” of

The Supreme Court held in State of A.P. v. MangaliYadagirithe36 that the case of a 14yr old girl shall be tried under the POCSO Act. She belonged to SC/ST community and was raped and photos of the incident were taken by the culprits. She was even warned not to file a police complaint and if she did so a picture would be circulated.

Child Pornography is not able to be controlled despite stringent legislation and banning of websites displaying and offering sexually explicit materials showing child sexual abuse. The advancement of technology makes it extremely difficult to curb the menace of child sexual abuse. Common people have a fair knowledge of information technology and they take advantage of it o abuse it by using mobile phones and handy cams.

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES RULES, 2020.

The POCSO Rules, 2020 are given to prevent child sexual abuse and it repealed the POCSO Rules, 2012, and the rules end with Form- A titled “Entitlement of children who have suffered sexual abuse to receive information and services.”The following rules are propounded: Educational material and programs including “personal safety, and measures to protect physical and virtual identity”, prevention and protection of sexual offense and report mechanism with the inculcation of gender sensitivity, gender equality, etc., shall be prepared for children of sexual abuse by the center and state government and also spread awareness about probable risks and susceptibility, etc. The persons who handle such cases or deal with such children shall be trained for a more sensitive and responsible attitude by providing them with proper training, orientation programs, refresher courses, and training to make them more compassionate and sensitive.37

Protection and Care of Children

Whenever any report of the offense is received by the “police officer” or by the “special juvenile police unit” or on the helpline number i.e. toll-free number 109838, such local police officer or SJPU shall proceed by registering the FIR under provisions of section 154 of the Criminal Procedure Code and furnish its copy to the complainant free of cost.

Banning of Child Pornography

We Indians have a strong inclination to give abrupt reactions to problems. These tendencies require improvement in policymaking in India. People in society expect readily available solutions instantly, which pressurize even the government to take haphazard decisions. Banning all types of pornography and then rolling it back is a classical example. It is the human tendency to go deep and deep when he enters into the cyber world by logging into different online portals, websites, or Apps. It becomes more problematic in regards to children as their parents or guardians do not have to check insight about their children‘s cyber activities. Moreover, the majority of children are having smart-phones, laptops, and PC‘s to use. The “Internet Crimes against Children Task Force Program” (ICAC) is running in every state of America. In the whole of India similar program is working only in the State of Kerala.857 websites having child sexual abuse materials were banned on the order of the High Court of Uttarakhand,39 by the telecom department of India in September. The order of banning pornographic sites showing child sexual abuse came in the DPS rape case in Uttarakhand. Reliance Jio has become the first Internet Service Provider that blocks pornographic websites like X Video‘s, Porn Hub, and many other websites of such nature, on the order of DoT. Telecoms like Airtel, Idea, and BSNL also followed the same course. Huge agitation against this ban, took place by the people. They were pleading that it is against their right as paid users to view websites of their choice and also it is against the principle of “Net Neutrality”. And it is obvious, like the rest of the world; India is also a big market of pornography which established the statistics of internet traffic where thirty percent of the traffic is of pornography.According to the data of Pornhub, India is a leading nation among all the major developed countries in accessing, downloading pornographic materials during COVID-19 pandemic. This is because of the availability of cheap and unlimited cellular data packs and plans.40

About 30 to 40% of the total revenue of telecom companies is generated from traffic on pornographic sites. The pornography world is now at the fingertips of the users due to the internet on smart phones leaving behind the desktop and laptops. The government on the order of court first banned the porn websites and then rolled back his order due to huge outcry of people as well as by the telecom sector. Three fourth of total browsing on the internet is related to pornographic materials. Though banning child pornography is still in force, whoever commits it, will be punished. But, people immediately find an alternative route to bypass the ban. All the banned websites containing child sexual abuse materials are still viewed, downloaded, and circulated by the UC like alternative browsers, and browsing history can also be cleared, hence not tracked also. Private viewing of pornography is not illegal for any age group and there is no filter to classify viewers into allowed and not allowed classes on term of age.

CONCLUSION

This chapter is the concluding part of the research work and it is divided into Conclusion and suggestions which are derived from the critical analysis of data carried out by Doctrinal Research methodology in previous chapters focusing on the objectives proposed under main objective as:

Pornography is not defined by any legislation, although it can be classed based on sexual behaviors, common partners, erotic content type, legality, and other factors. The researcher created a study framework in which he presented his findings. Humans are not strangers to sensual, erotic, sexual, and obscene content, despite the name. In the middle of the eighteenth century, pornography was discovered. India, like the rest of the globe, has a long and well- documented history of sexuality and its depiction in various forms and exists till now. The issue is becoming worrisome, as pornographic culture develops at such a rapid and profound pace that morality standards are eroding in the face of rising sexual offence. 80% of all trafficked people are used in the creation of pornographic content. Child sexual exploitation, child prostitution, and child pornography were all carried out in a highly systematic and coordinated manner by the trafficker. Pornography also encourages women to be objectified. In the first three months of the lockdown in India in 2020, 25000 videos of children being sexually molested were uploaded. The staggering truth is that people’s pedophilic attitudes are expanding at an alarming rate, as seen by the number of visits to child pornographic websites. It is a hazardous scenario for any society when youngsters do not feel comfortable among their peers. Prostitution and pornography are both acts of sexual activity performed in front of a camera, with the main distinction being the presence of a camera. Prostitution occurs behind closed doors, but when it occurs in front of a camera, it becomes pornography, a globally accepted, high-revenue-generating enterprise. It’s like a wild horse with great power that’s tearing the fabric of our society apart. There are numerous legal regulations concerning pornography, particularly with reference to children.

In India, pornography-related legislative requirements and regulations exist to regulate obscenity and online pornography, including child pornography, but they have yet to be implemented. Neither a specific chapter nor new legislation has been added to the Indian Penal Code that addresses and govern all areas of the ever-increasing threat of pornography. Sexually graphic material abounds on the internet. People of various ages are frequently exposed. They may be exposed to pornography through tempting adverts, pop-ups, spam e-mails, and other means, or they may be exposed directly to pornography may have first come across soft core pornography, which is offered as a web series, they look for hardcore pornography in movies, videos, and audios, among other things. Anyone, at any time, has access to anything. Although child pornography and other forbidden pornography are technically prohibited, this is not the case in practice. Prohibited pornographic content can still be accessed through VPN technology, proxy servers, and thousands of new porn web sites that not only take viewers to forbidden pornography websites but also hide their identities and locations. Porn hub has now built a mirror website on a new domain -Pornhub.net- to make access to restricted websites even easier. Similarly, the proxy website kproxy.com has received 2.3 million unique visitors from India. Therefore India is lacking behind in tackling the increasing menace of pornography and to regulate this threat, India needs some strict policies in the legislation.

SUGGESTIONS

Keeping in view of all the present provisions, judicial stand regarding pornography in India and the findings derived from the analysis in the research, researcher put forward the viable and feasible suggestions to control the menace of pornography in cyber space.

1. Requirement of an Inclusive Legislation Regarding Pornography

To regulate the consumption, downloading, dissemination, and storage of illicit pornography, as well as the import and export of it, Parliament should adopt a strict inclusive legislative paradigm.

2. Define Pornography and Obscenity

Until now, there is no legal definition of pornography or obscenity. It is urgent that a larger and more comprehensive definition be developed. So that litigants do not have to first fight to describe the matter as obscene or pornographic before turning to the judiciary for discretion.

3. Declare Viewing of Pornography at Public Places as Offence

Public viewing of pornography should be classified as “transmission of pornographic contents,” as it infringes on the fundamental right to privacy of those in the vicinity. It also goes against public policy, morals, and decency, viewing of Pornographic content in public spaces should be made a criminal offence punishable by a five-year prison sentence and a fine.

4. Declare Extreme Pornography as Offence

Extreme pornography of all kinds is simply and freely available to people of all ages. Group sex, sodomy, bestiality, unnatural sexual acts, rapes, gang rapes linked with beatings, abuse forcing, tying, handcuffing, plucking hairs, and much more violence are all featured in extreme pornography. It portrays women as sexual objects or commodities who are subjected to agony, torture, forced sex, humiliation, and even rape. Pornographic materials frequently depict women as they preferred to be tied up, expurgated, maimed, bruised, or otherwise bodily injured. Such violent sexual practices have a profound effect on people’s thoughts, particularly teenagers’, which is why the incidence of severe gang rapes is increasing by the day. India should criminalize the all forms and genre of extreme pornography.

5. Pornographic Offences should be made non bailable

Pornographic Offences should be made non bailable to deal with such offences effectively and if the accused easily get bail he/she may temper the evidences, hamper the investigation and may threaten the witnesses and complainant, due any one or more of these reasons most of digital evidences lost and not recovered.

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  • THE CONSTITUTION OF
  • THE INDIAN PENAL CODE 1860 (Act 45 of 1860)
  • INFORMATION TECHNOLOGY ACT, 2000, (Act 21 of 2000),
  • INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES) RULES, 2011,
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1 Assistant Professor at A.P. Goyal Shimla University & Advocate, High Court Shimla Respectively.

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9 The books in Latin language, “The Arsamatoria” i.e. “The Art of Love is an instructional elegy series in three books by the ancient Roman poet Ovid. It was written in 2 CE. It is a treatise on the art of seduction, intrigue, and sensual arousal sexually explicit items.

10 Lynn Hunt, “The Invention of Pornography, 1500–1800 Obscenity and the Origins of Modernity”, by zone books, (June 1, 1993)

11 “Ban Or No Ban, India Watching More Porn Than Ever: Survey”,(January, 12, 2016), available at https://www.ndtv.com/india-news/ban-or-no-ban-india-watching-more-porn-than-ever-survey-1264719                                                                                                                                                                (last visited on March 27, 2022)

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17 Nicholas P. Newstrom and Steven M. Harris, (2016 ), “ Pornography and Couples: What Does the Research Tell Us?”, Contemporary Family Therapy, volume 38, pages 412–423, available at https://link.springer.com/article/10.1007/s10591-016-9396-4 (last visited on March 27, 2022)

18 Jill C. ManningBrigham,(2006), “The Impact of Internet Pornography on Marriage and the Family: A Review of the Research,Sexual Addiction & Compulsivity” ,The Journal of Treatment & Prevention, Volume 13, 2006 – Issue 2-3, available at https://www.tandfonline.com/doi/full/10.1080/10720160600870711?src=recsys (last visited on March 27, 2022)

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22 In Naz Foundation v. Govt. of NCT of Delhi, (2009) 160 DLT 277, 34.Followed the decision of the case, Planned Parenthood v. Casey, y, 505 US 833 (1992).

23 In Gobind v. State of M.P., AIR 1975 SC 1378 and R., Rajagopal v. State of T.N., AIR 1995 SC 264

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25 (1959) 3 Law Ed 2d 1512

26 AIR 1970 SCR (2) 80

27 Ajay Goswamy v. UOI & Ors, Writ Petition (Civil) 384 Of 2005

28 AIR 1965 SC 881

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31KamleshVaswani vs. Union of India, Cri. Writ Petition No. 177 of 2013

32 Rule 3 (2)(a) of Information Technology ( Intermediary Guidelines) Rules , 2011

34 Whereas “POSCO Act, 2012, provides punishment for the use of child for pornographic purposes, i.e. imprisonment of 5 year and or fine. In the event of any subsequent conviction the punishment may be awarded not less 10year which can be extended up to life imprisonment and fine also. Act also laid down punishment for storage pornographic material involving a child for commercial purposes for 3 year and or fine”.

35 Section 15(1) and section 15(2) of the Protection of Children from Sexual Offences “Amendment” Act, 2019

36 2016 (1) ALD (Crl) 314 (A.P)

37 “Centre notifies new POCSO rules making law for sexual offences against children more stringent” (2020), The Week, available at https://www.theweek.in/wireupdates/national/2020/03/13/del21-pocso-rules-notification.html (last visited on March 28, 2022)

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39Re v. State of Uttrakhand and Others, Writ Petition (PIL) 158 of 2018

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