Research Article

Pornography Ban: Will a Ban Curb the Menace.

Author: Himanshu, 1st year student in NUSRL, Ranchi.

ABSTRACT

In the light of the Porn Ban in India dated October 2018, this study aims to answer whether putting an absolute ban on pornography is a warranted decision or not. The prime objective of this research is to analyze the arguments in favor of the ban, essentially postulated by a lawyer, Kamlesh Vaswani in his 2013 PIL, “Kamlesh Vaswani v. Union of India”, and construct counter-arguments to them. The paper uses case-studies, research articles by various authors, and data on pornography & sexual-crimes among others to critically analyze the necessity & effectiveness of the Porn-Ban. The researcher has attempted to address the legal terms in a manner that can be understood by a non-legal reader as well. The key finding of this research is that the concerns of sexual-violence and children watching pornography cannot be curbed by restricting pornography in the nation. At last, the study will contribute a straightforward yet practical solution to curb this menace of society.
Keywords: Pornography Ban, Child-Pornography, Sexual-crimes, Right to Personal Liberty, Freedom of Speech & Expression, Sex Education

INTRODUCTION

Law v. Morality has been a debatable topic for ages where in any case involving this dilemma, there is a clear demarcation between the people in support of the court’s judgment and the people dissenting from the judgment, both having their own set of arguments. Pornography is no different of a case when it comes to Law v. Morality, especially in a country like India, which values its morality and principles more than anything. The legal fight around it started when in 2013, Kamlesh Vaswani, a lawyer, filed a Public Interest Litigation before The Supreme Court of India seeking a ban on pornographic websites.1 It was followed by a ban on pornography in India on 1 August 2015 which was rolled back soon after public outcry.2 It was only in October 2018 when The Uttarakhand High Court taking suo moto cognizance of a rape case of a minor girl, directed the government to block over 850 adult websites3.
The fact that India ranked 3rd in consumption of pornography across the globe is itself sufficient as a ground for its research4. Although it remains a debatable topic whether this ban has curbed sexual violence or not, a more serious concern is its accessibility after the ban. The lockdown due to the Covid-19 pandemic ripped off the curtains of this ban when an industry-leading website, Pornhub saw a whopping 95 percent traffic increase from the country, which basically means, pornographic content is still there and easily accessible as well.5
While the ultimate motive behind the ban i.e. to curb sexual violence against women and minors seems defeated, nobody is critical about the decision. The major idea behind this study is to visit the various arguments which were put forward time & again in the court of law in favor of banning pornography and to analyze them critically.

LEGALITY OF PORNOGRAPHY IN INDIA

The Indian Penal Code, in section 292 declares the selling & distribution of pornographic materials as illegal.6 The following section, i.e. section 293, says that distribution, sale, or circulation of obscene materials and selling of pornographic content to any person under age 20 years is illegal.7 Section 67[B] of the Information Technology Act, 2000 strictly prohibits child pornography and declares it to be illegal across the country.8 However, neither watching pornographic content inside one’s house nor is storing it in smartphones/other storage devices is illegal. 9

TIMELINE OF THE PORNOGRAPHY BAN

The legal battle seeking a ban on pornography started when in 2013, a PIL petition was filed in the Supreme Court of India by Kamlesh Vaswani, a lawyer.1 Following this, the top court issued a notice to the government seeking its response on the same. To the notice, the government reacted by constituting a Cyber Regulation Advisory Committee under section 88 of the IT Act, 2000.10 The committee was assigned the task to review the availability and accessibility of pornography on the internet. Later in July 2015, the Chief Justice while hearing the PIL of Vaswani, observed,
“Such interim orders cannot be passed by this court. Somebody may come to the court and say look I am above 18 and how can you stop me from watching it within the four walls of my room. It is a violation of Article 21 [right to personal liberty]”11
But, only a month later, in August 2015, orders not complying with the Supreme Court’s directions were passed by the government directing Indian ISPs [Internet Service Providers] to block at least 857 websites that it considered to be pornographic.12 The government argued that the list of websites was given by the petitioner itself to the DoT [Department of Telecommunications]. However, when the dead-end was seen approaching, it came out to be a mere mirage. The ban couldn’t sustain for longer due to public outcry and dissenting opinions of various public figures.13
The Supreme Court, in the year that followed, asked the center to suggest ways to ban child pornography in all forms. A bench of justices Dipak Misra and SK Singh said,
“The Centre shall file affidavit to suggest ways and means to curb child pornography. Innocent children can’t be made prey to this kind of painful situation and a nation cannot afford to carry on any experiment on children in the name of liberty or for that matter freedom of speech and expression.”14
The prayer to ban pornography across the nation was only satisfied in the year 2018, when the Uttarakhand High Court took suo moto cognizance (acting on its own) of a rape case of a minor student & found that the victims were influenced by a pornographic video that they saw before committing the crime. The court, in view of this fact, directed ISPs [Internet Service Providers] to block the publication and transmission of all obscene materials in electronic form. Further in the order, the court says to the Ministry of Electronics and IT to suspend licenses of all Internet Service License Holders if they fail to do so.15

THE KEY CONCERNS

If anyone except the courts has to be credited for the ban on pornography, it is Mr. Kamlesh Vaswani. The PIL petition filed by him mentioned eight major points, most of which are assertions that are not backed by any study or data.16 These points are subjective and are a matter to change from person to person.
1. PIL for the “innocent, susceptible, vulnerable”
2. Porn is “moral cancer”
3. The “worst killer”
4. “Worse than AIDS or Hitler”
5. Real sex doesn’t “measure up”
6. Annoying pop-up ads
7. Not an attack on freedom of expression
8. “Mental images can never be erased”
The concerns put forward by Mr. Vaswani are more of a moral lecture than something acceptable in the court of law. According to him, annoying pop-up ads are disgraceful, so it forms the ground for a ban. He simply compares it with Hitler without any substantial proof whatsoever. If one has to find out any strong arguments from his petition, then they can be: Relation of pornography and sexual crimes against women & children and Ban is not an attack on freedom of speech & expression. Mr. Vaswani argues that there is a direct relation between pornography and sexual crimes, however, he fails to support his argument with any data which can verify this relation. Further, he mentions, banning pornography is not an attack on Article 19 [Freedom of Speech and Expression], but he fails to read Article 21[Right to Personal Liberty] with it. But even if these arguments fail to portray a clear picture of the reasoning behind seeking a ban on pornography, it is an indispensable duty to give arguments in favor of not banning it.

WHY THERE SHOULDN’T BE A BAN?

As previously stated, the study will visit the various arguments in favor of the ban and will construct counter-arguments to them. At a later stage, some new points will be also discussed. All the arguments made are backed by relevant & sufficient data. The first major premise of the PIL was that it was for the innocent and vulnerable section of the society i.e. women and children.16 Mr. Vaswani did his best to link pornography and increasing sexual crimes. However, the data tells a completely different story. According to an article published in the Indian Journal of Psychological Medicine, titled Sexual Crime in India: Is it Influenced by Pornography? which explored the association between the reported incidence of crime over a period of four decades – 1971-2008 and the availability of pornography over the internet with a particular focus on crime against women, found that there is no significant impact of the one on the other. The conclusion of the article says,
“Results presented needs to be interpreted with extreme care and caution. Nevertheless, the results from this study suggest that easy access to pornography did not have a significant impact on rape rates and crime rate against women.”17
Moreover, if pornography has to be accused of increasing sexual crimes in the country ignoring the results of these studies, then the Hindi Film Industry would be also made liable for the increasing harassment and teasing of women across the country. A range of movie songs’ lyrics conveys the messages like a girl’s consent is immaterial because actually, she wants attention or the boy has a right on the girl and she is the source of his satisfaction. Despite these sexist remarks portrayed in movies and songs, these contents are available for consumption with a view that a rational man will think between what is right and what is wrong.
The second argument given in favor of the ban is that the ban doesn’t violate the freedom of speech and expression.16 Mr. Vaswani argues that pornography is not a form of expression, so banning it would not violate any fundamental rights enshrined in the constitution. But if this argument is to be considered, then it should be read with Article 21 of the constitution, which is also a fundamental right guaranteeing the right to personal liberty. It says, no person shall be deprived of his/her life or personal liberty except according to the procedure established by law. The former Chief Justice of India, H.L. Dattu also stated this while hearing Vaswani’s plea that an adult cannot be restricted from watching anything inside the four walls of his house.11 John Stuart Mill while examining the situation in which society can interfere in an individual’s freedom, says,
“The only principle for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him, must be calculated to produce evil to someone else. The only part of the conduct of any one for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute”.18
So, it is evident from the words of former CJI and John Stuart that putting a complete ban on pornography cannot be justified in a free & independent country.
Mr. Vaswani further claims that pornography is a “moral cancer”.16 Now the real anomaly of this argument is that something morally right for someone can be morally wrong for the other. For instance, sex before marriage may be morally right for some while for some it may be a sin. Another example can be abortion. It is legal in India with given restraints but is not considered morally right in many communities. Because some communities consider abortion to be a morally wrongful act, the court of law cannot prohibit it based on grounds of morality. Similar is the case of pornography, where a section considers it to be moral cancer while others object to its banning on grounds of the right to personal liberty. There are several instances where law and morality counter each other, and it is to the judges to decide a case. But when a case is in the court of law, and there are acts and statutes already in effect governing the particular subject, it is anticipated that the judgment will be based upon the laws and not morality.
Following the same path of morality, it can be said that no religion in India permits the consumption of alcohol either owing to the sayings of their religious texts or because of its ill effects on one’s health. Even then alcohol is not completely banned in the country. The reasons for this can be many like excise duty that the government earns through it; the number of its consumers etc. But one of the major reasons is that India is a democratic country. The citizens cannot be forced to do something that they don’t want to. Just like they can’t be forced to take admissions in schools or take part in the voting process.
Another argument given in favor of objections to the ban is, in India, there is barely any sex education given to teenagers. Furthermore, the Indian parents in the present scenario are not willing to talk about sex education with their children. So they move to pornographic sites for instant gratification and in the process, they get to learn a bit of it.

EFFECTS FOLLOWING THE BAN

One of the positive impacts of the ban can be seen in “The 2019 Year in Review” report published by Pornhub, where it was claimed that India has moved down twelve positions from its previous third-place position in 2018.19 However, the notion of the court behind the ban, that was to curb sexual violence, seems defeated as of now. But is there any ban in the first place? The answer lies in the reports published during the COVID-lockdown. There was a 95% increase in internet traffic from the country towards pornographic websites.5 During the lockdown, most work professionals, students were at home having plenty of free time that they devoted to watching porn. This implies that there aren’t any legit restrictions to pornographic sites. A simple VPN [Virtual Private Network] application that is available to download for free on the Play Store or the App Store does the job of jumping all restrictions. Moreover, the ban has developed a curiosity in the younger generation to explore these things and find out why they are banned.

THE TRUE MENACE

Having discussed the points in favor of not banning a complete genre of content i.e. pornography, it is time to address the real culprit. Pornography in its plain form is not a threat to society as long as a person with a rational mind is viewing it. The misadventure in the situation is its consumption by the minors. Children are of susceptible minds and therefore they can be molded in whichever way one wants. Exposure to pornography negatively shapes their mind. Where an adult can distinguish between what is showed is right or wrong, a child’s mind will absorb what all is shown. Since pornographic videos contain too much of sexual violence, it normalizes sexual harm in the mindsets of children. Many times, children come across videos in which sex is portrayed as harming the other person on one’s choice. And this creates an impact on a child’s mind that is everlasting. It will get embedded in his/her mindset that harming the counterpart is normal during sexual intercourse. Since children have mirror neurons, they tend to imitate what they watch. In most pornographic videos, they lack emotional relations and consensual sex. This becomes worse when the content is depicting a rape. A child’s mind really can’t draw a line between a consensual-sex and rape.
Another alarming issue with the children watching pornography, especially in the Indian context, is that it promotes aggression towards women. Pornographic videos showing dominance of the male over the female counterpart implant this idea that it is acceptable to behave aggressively during intercourse. In a country like India which is battling patriarchy, it sets the wrong precedent for the leaders of tomorrow. Boys learn to demean females, they start considering them as the inferior sex from their childhood itself. A study conducted on fifty popular pornographic films presented this as a result, that most of these films had high levels of aggression and violence.20 While this can be overlooked by an adult, a child will rather be attracted to it.
This filthy situation also contributes to the relationships of the children as they grow to become adults. These films create sexual stereotypes about relationships in one’s mind that is everlasting. Reports suggest that a teenager exposed to pornography loses faith in his/her partner and believes that they will never find sexual exclusivity in their partner.21 Prolonged exposure to pornography can also lead to its addiction when it becomes a necessity rather than an enjoyment. Children and young adults are more prone to addiction and this can ultimately alter their mental orientation and behavior, suggests a research article namely “Pornography addiction a supranormal stimulus considered in the context of neuroplasticity”.22 These kinds of addictions are more than just addictions and it can affect all other areas of one’s life.

SEX EDUCATION : A POSSIBLE SOLUTION

Consequently, it pens down to a theory that pornography in itself is not a plight but minors consuming pornography certainly is. So putting a ban cannot be the solution. But talking about sex education can be one remedy of this sordid swamp. In our country especially, there is little to no sex education that is formally taught in schools. Where reproduction chapters are skipped as if they are not meant for the students, we can’t expect to curb this menace. The curriculums of the students need a revision to include various models to teach sex education in schools. Apart from schools, it is the sole responsibility of parents to interact with their children about sex ed. When there will be awareness among children about pornography, they will be extra equipped to face it, because sooner or later, in this transforming digital world everyone will face it.

CONCLUSION

There are various sections in different acts prohibiting the selling & distribution of pornographic materials. However, there is no specific law regarding pornography. Despite the ban on pornographic websites, people across the nation continue to enjoy it because of two reasons, first, it is legal to watch pornography within four walls of one’s house, and second, the blanket of the ban has many holes in it which let people watch these films. The eye-catching case seeking a ban on pornography was the “Kamlesh Vaswani v. Union of India” case that constructed the grounds for it. Later, in the year 2015, the lawyer was gratified with the short-lived ban. But it was in the second attempt only, when the government could successfully ban pornographic sites in the nation. However, the lack of any act or statute particularly governing pornography and the lack of interest of the government in making one, signifies that the government only has wishes but no action plan.
The PIL filed in the Supreme Court stated some absurd while some logical (yet not backed by any research) arguments. The study to the best extent possible countered the arguments and established that a ban isn’t necessary at all. While the study critically analyses the move, it also applauded the decrease in the viewership of pornography in the nation. But at the same time this doesn’t go well with the fact that during the COVID-lockdown, the viewership increased manifold. This is evidence pointing to a situation of the non-existence of prohibition.
While the researcher is of the view that pornography isn’t a problem in itself, he undoubtedly believes that it becomes one when it is viewed by the children. The ill-effects of pornography like how it normalizes sexual harm among children, promotes aggression towards women, and leads to addiction are also criticized in the study and found that it is a menace to society. Solutions to this menace can be many, but the prime focus in the research is given to sex education. Awareness among children about sex, consent, pornography, etc. will aid tackle the problem, otherwise, we will find the future leaders of the nation stuck to the black mirrors promoting this menace.


References

1. Kamlesh Vaswani v. Union of India, (2014) 6 SCC 705
2. En.wikipedia.org. 2020. Internet Censorship In India. [online] Available at: <https://en.wikipedia.org/wiki/Internet_censorship_in_India#:~:text=On%201%20August%202015%2C%20857,in%20Supreme%20Court%20of%20India.> [Accessed 17 November 2020].
3. In Re: In the matter of incidence of gang rape in a boarding school, situated in Bhauwala, District Dehradun v. State of Uttarakhand, LNIND 2018 UTTAR 1628.
4. Available at:
https://www.pornhub.com/insights/2018-year-in-review#traffic%20time
5. Kannan, S., 2020. Pornography Gets A Pandemic Boost, India Reports 95 Per Cent Rise In Viewing. [online] India Today. Available at: <https://www.indiatoday.in/news-analysis/story/pornography-gets-a-pandemic-boost-india-reports-95-per-cent-rise-in-viewing-1665940-2020-04-11> [Accessed 20 November 2020].
6. “Section 292 in The Indian Penal Code”. indiankanoon.org.
7. “Section 293 in The Indian Penal Code”. indiankanoon.org.
8. “Central Government Act: Section 67 [B] in The Information Technology Act, 2000”. indiankanoon.org.
9. “It’s legal to watch porn in the privacy of your house, says SC”. Hindustan Times. 9 July 2015. Retrieved 20 November 2020.
10. “Kamlesh Vaswani v. Union of India & Ors. (Pornography ban matter)”. 1, Law Street. Retrieved 20 November 2020.
11. Nair, H., 2020. CJI HL Dattu Says Can’t Ban Porn Totally, Cites Right To Personal Liberty. [online] India Today. Available at: <https://www.indiatoday.in/india/story/cannot-ban-pornography-cji-hl-dattu-personl-liberty-supreme-court-281437-2015-07-09> [Accessed 20 November 2020].
12. Deccan Chronicle. 2015. Banned: Complete List Of 857 Porn Websites Blocked In India. [online] Available at: <https://www.deccanchronicle.com/150803/nation-current-affairs/article/porn-ban-complete-list-857-porn-websites-blocked-india> [Accessed 21 November 2020].
13. “India lifts porn ban after widespread outrage”. BBC News. 5 August 2015. Retrieved 19 November 2020.
14. “SC asks Centre to suggest measures to ban child pornography”. Deccan Chronicle. 27 February 2016. Retrieved 17 November 2020.
15. “Ban porn sites or lose license: High Court to ISPs”. India Today. India Today. 28 September 2018. Retrieved 20 November 2020.
16. Saha, A., 2015. Meet Kamlesh Vaswani, The Lawyer Behind India’s Porn Ban. [online] Hindustan Times. Available at: <https://www.hindustantimes.com/india/meet-kamlesh-vaswani-the-lawyer-behind-india-s-porn-ban/story-wtOXhFy9O5vEyC9Boz3GcN.html#:~:text=In%20his%20PIL%2C%20which%20was,of%20pornography%2C%20especially%20child%20pornography.&text=Watching%20porn%20also%20promotes%20sexual,women%20and%20children%2C%20he%20said.> [Accessed 21 November 2020].
17. Math, S., Viswanath, B., Maroky, A., Kumar, N., Cherian, A. and Nirmala, M., 2014. Sexual Crime in India: Is it Influenced by Pornography?. Indian Journal of Psychological Medicine, [online] 36(2), pp.147-152. Available at: <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4031582/> [Accessed 21 November 2020].
18. K.D. Gaur, A Textbook on The Indian Penal Code 363 (2006).
19. https://www.pornhub.com/insights/2019-year-in-review#traffic
20. Bridges, Ana J., et al. “Aggression and Sexual Behavior in Best-Selling Pornography Videos: A Content Analysis Update.” Violence Against Women 16, October 2010, 1065, 1079.
21. Kanuga, Mansi and Walter D. Rosenfeld. “Adolescent Sexuality and the Internet: The Good, the Bad, and the URL.” Journal of Pediatrics & Adolescent Gynecology 17, 2004, 117, 120; Zillmann, Dolf. “Influence of Unrestrained Access to Erotica on Adolescents’ and Young Adults’ Dispositions Towards Sexuality.” Journal of Adolescent Health 27, 2000, 41, 42.
22. Hilton, Donald L., Jr. “Pornography Addiction—A Supranormal Stimulus Considered in the Context of Neuroplasticity.” Socioaffective Neuroscience & Psychology 3, July 2013, 1, 3-5.

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Ishu Saini
Editor
Ishu Saini (@teslasaini)
11 months ago

Great Article👏👏👏

Anupama Minz
Anupama Minz
11 months ago

Great job Himanshu♥️
Lookin’ forward to more such articles that deals with the real issues of the society.

Abhishek Singh
Abhishek Singh
11 months ago
Reply to  Anupama Minz

Great Work Himanshu, keep it up!

Himanshu
Himanshu
11 months ago
Reply to  Anupama Minz

Thanks 👍
Also, had great experience working with you for our next project.

Nilanjana Saha
Nilanjana Saha
11 months ago

Amazing article👏🏻👏🏻

Dewanshi Agarwal
Dewanshi Agarwal
11 months ago

Great job!! Looking forward for more!

Kinshuk Sharma
Kinshuk Sharma
11 months ago

Great work Himanshu, the time and efforts you put into writing this piece is clearly visible. And this is really informative.

Piyush Choubey
Piyush Choubey
11 months ago

Wow! This is such a masterpiece 🔥

Debarati
Debarati
11 months ago

Wonderfully written Himanshu

Saumya
Saumya
11 months ago

Sir, this is a worth reading piece of work. An eye opener for the previous and upcoming generations and is worthy of citation authority. Keep enlighting the beginners of legal fraternity.
Also, I would like to ask you for citation permissions specification, on my thesis. Please reach out to me ASAP, I shall be humbled, Sir.

priyal
priyal
11 months ago

amazing bro👍 proud of u

Ishu Saini
Editor
Ishu Saini (@teslasaini)
11 months ago

Bhai kya bawall chiz likhi h …
Pdh ke system hil gya pura

Anirudh
Anirudh
11 months ago

Himanshu bro u r gold💛

Kaustubh Kumar
Kaustubh Kumar
11 months ago

अत्यंत ही मार्मिक रूप से विश्लेषण किया है आपने…इतनी विलक्षण तो पत्नी (या वेस्टर्न कल्चर मे गर्लफ्रेंड) भी नही होती जितना विलक्षण ये अनुच्छेद है … ऐसे और अनुच्छेद आप अपने कर कमलों द्वारा लिखते रहे और प्रकाशित करवाते रहें… ईश्वर आप पर कृपा करें।

Shruty
Shruty
11 months ago

Your work is so inspiring and informative. Keep going😊

Rajat tanwar
11 months ago

Its beautiful ,if you look through the authors view you can feel his pain ,his feelings ,its beautiful you ate gonna be a great writer. 👍

Rajat tanwar
11 months ago
Reply to  Rajat tanwar

*are

Chandrakant kumar
Chandrakant kumar
11 months ago

Bhai sach bataye to poora ni padhe lekin jitna padhe research krne me to tum koi kasar ni chhoda aur usme se ek cheez funny laga.. THE KEY CONCERNS ka 6th point 🤭🤭XD XD XD
Himanshu medrano in the house🤓🤓🎉🎉

Pratima
Pratima
11 months ago

A great article beta. Keep it up.

Nandita
Nandita
11 months ago

It needs courage to work on this topic. Well done !