Watching Porn: Crime in India?

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Is Watching Porn a Crime in India?

According to Porn Hub data - India is the 3rd most porn watching country in the world. Average visit duration to the website for traffic originating from India is 9 min and 30 sec, above the world average of 9 min and 20 seconds. 

To some it may come as a shocker! Since, there is huge consumption of porn in India, this blog delves deeper into legal aspects of pornography – Whether watching porn is legal in India? If yes, does it include child pornography too? Whether sharing pornography online is a legally punishable offence? etc. 

In this write up moral and ethical aspects has not been discussed, having left to readers for introspection and conclusion. The blog shall clarify doubts of those wondering whether it’s illegal to consume pornography.  

Laws Governing Pornography in India:
Indian Penal Code, 1860 is the main criminal code in India. However, it was written at a time when internet was not even conceived. As such, it does deal with porn and related aspects except for Section 354 A. 

Information Technology Act, 2000 (amended 2008) is a special law dealing with internet and matters concerned thereto. Here, we shall focus on Sections of the Act, having bearing on pornography. 

Section 67:Punishment for publishing or transmitting obscene material in electronic form:
Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees. 

Section 67A:Punishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form:

Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees. 

Section 67B:Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form:

Whoever,

(a) publishes or transmits or causes to be published or transmitted material in any electronic form which depicts children engaged in sexually explicit act or conduct; or 

(b) creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner; or 

(c) cultivates, entices or induces children to online relationship with one or more children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource; or 

(d) facilitates abusing children online, or 

(e) records in any electronic form own abuse or that of others pertaining to sexually explicit act with children, 

shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees: 

Provided that provisions of section 67, section 67A and this section does not extend to any book, pamphlet, paper, writing, drawing, painting representation or figure in electronic form – 

(i)    the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting representation or figure is the interest of science, literature, art or learning or other objects of general concern; or 
(ii)    which is kept or used for bona fide heritage or religious purposes. 

Explanation:For the purposes of this section, children, means a person who has not completed the age of 18 years.

Indian Penal Code, Section 354 A:
Section 354A:Sexual harassment and punishment for sexual harassment:
(1) A man committing any of the following acts — 
(i)    physical contact and advances involving unwelcome and explicit sexual overtures; or 
(ii)    a demand or request for sexual favours; or 
(iii)    showing pornography against the will of a woman; or 
(iv)    making sexually coloured remarks, shall be guilty of the offence of sexual harassment. 

(2) Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both. 

(3) Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both. 

Conclusion:
After reading the relevant portion of laws, it becomes clear that – 

(1)Watching porn is not illegal: 

None of sections reproduced above, make watching porn illegal. Especially when the content is being consumed in a private setting like home 

(2)Is watching child pornography, even privately illegal?

Section 67 B (b) makes collection, browsing, downloading, exchanging material in any electronic form depicting children in obscene or indecent or sexually explicit manner, an offence punishable up to 5 years of imprisonment.

It’s obvious that to watch child pornography one needs either already collected content or needs to browse the internet for such contents. IT Act makes both collection and browsing child pornography illegal. By simple logic, watching child pornography isn’t possible without violating the law of the land. 

It’s important to mention the fact that: Even in USA and UK where possession of pornography isn’t an offence, Child Pornography is condemned and is a penal offence.

(3)Making someone else watch pornography is illegal: 
As per Section Section 354A of IPC, showing pornography against the will of a woman is a penal offence. 

Even publishing or transmitting obscene material OR material containing sexually explicit act, etc. in electronic form are legal offence under section 67 and 67 A of IT Act 2000 (as amended in 2008).  

This assumes significance in the backdrop that men at times, force women to watch porn, while in relationships or just friends.

(4)Transmitting obscene photos via WhatsApp, Messenger etc. is illegal:

IT Act section 67 and 67 A penalize transmitting sexually explicit or obscene materials. As such, photos are very well covered under the ambit of IT Act 2000. So, transmitting sexually explicit photos via WhatsApp, private messengers like Facebook is legally an offence. 
 
(5)Sex stories, are as illegal as pornographic content: 

Section 67 B lists down certain exception to the provisions of Section 67 and 67 A. Thus, unless a text is for public good of creating awareness, sex education etc. it comes under ambit of child pornography. “Sex stories” even if fully textual will still fall under the category of pornography and shall be tried the same way.  
So, their publication and transmission, is a punishable offence. However, as explained above their consumption in private setting is legal. 

(6) Porn hosted outside India may be legal:

There are numerous countries where hosting pornographic content is not illegal. If pornography is hosted in such a country, Indian cannot ban hosting of such websites. However, Government of India, is well within its rights to block access to such websites. 

Summing Up:

  • Watching porn at home is not illegal in India. 
  • Saving pornographic content in smart-phones, storage devices etc. is also not illegal, unless it is child pornography.
  • Distribution of such contents, even via private messages like Facebook messenger, Whats app is illegal. 
  • Sex stories are also covered under IT Act, being sexually explicit content. 
  • Child pornography is totally illegal: FBI and Interpol have regularly been cracking down such contents on dark net. 
  • Transmission i.e., sending text, photo, video or anything obscene or containing sexually explicit act (unless for bona fide purpose like sex education) is also illegal in India.