As the nation attempts to empower women and struggles to fix the unequal social balance, everyone wants to ride the wave of public discontentment. One is indeed alarmed by the heightened reporting of sexual assault cases and desperate measures are being thought-off to prevent ongoing sexual attacks. In this midst, a public interest litigation was recently filed in the Supreme Court which contends that the offences committed against women and girl children are fueled by pornography. This petition seeks a ban on ‘internet pornography’ and wants ‘watching pornography’ to be made a non-bailable offence. It’s reported that the petition declares that 30% of worldwide internet sites consist of pornographic material and seeks relief from India’s Apex Court to ban them.
Notably, pornography isn’t defined in Indian statutes. The charging section under the Indian Penal Code relates to obscenity and the offence is the sale and distribution of material that appeals to lascivious or prurient interest.
If you’re wondering how those interests are interpreted, the Supreme Court has opined, “the concept of obscenity is moulded to a very great extent by the social outlook of the people who are generally expected to read the book. It is beyond dispute that the concept of obscenity usually differs from country to country depending on the standards of morality of contemporary society in different countries.” Thus, the understanding of obscenity does indeed differ based on age, education, financial standing, social milieu and exposure.
The internet revolution presented its own challenges relating to pornography in the cyber-world. To check these, the Indian IT Act replicated provisions of the Penal Code and regards as an offence the publishing and transmission of obscene material online. It extends the liability to any intermediary or third party when pornographic content is hosted on their website or routed through their service and stipulates a jail term of 3 years for its violation.
Let’s put things in perspective – India may well have the world’s third largest internet population after China and the United States. But internet penetration here is only 12% in comparison to China’s 43% and 80% in the States. In this background, one wonders why the petition only seeks a ban on internet content and not on printed pornographic material which perhaps gets distributed with greater ease in remote/rural areas.
Regardless, one wonders how will one track viewing of pornographic material? Will service providers be asked to ban access to certain sites? If so, how will such ban keep pace with new sites? How is the ban expected to be enforced when the material is hosted overseas and may be legal in the country of origin? How will the enforcement of such ban be practically feasible and even if one is able to regulate computers, what about other mobile gadgets and portable devices?
The purpose of asking these questions is not to comment on whether access to pornographic material should be restricted. The Apex Court will decide that. But attempts to take away from the main issue of controlling incidences of sexual assault need to be checked. No data supports that banning pornographic material addresses the concerns of increased sexual violence. In fact, there doesn’t appear to be any direct co-relation between viewing pornography and sexual assault. The real problem still lies in our patriarchal society and misogynist culture. Given that most attackers are known to the victim, rape is definitely more about power and less about sexual gratification.
What we need to ask ourselves is whether we really are a sexually repressed nation and do our societal norms prevent us from freely expressing our sexual desires? If so, what explains our fascination for procreation given we are the world’s second most populous nation? Also, who sets these norms and moral standards and what factors go into the defining process? Can we really have one uniform standard in a country as diverse as ours? In fact, isn’t it ironic that sex, in general or even casually talking about it, is considered taboo in the land of the Kama-Sutra? But before you rush to rid that age old copy from your library take note that books printed in the interest of literature and learning are exempt from the definition of obscenity under the Penal Code.
Answers don’t lie in suppressing sexual feelings, but can be found by talking more openly about sex. We can no longer shy away from adding sex education to school curriculum and women of all ages, and the girl child in particular, have to be armed with greater knowledge about sex and when to speak-up. A more valuable contribution to public interest would be a petition seeking review of Section 292 of the Penal Code and the Apex Courts interpretation of the “Hicklin Test” laid as far back at 1965. Needless to say that the concept of morality has changed since then. And if a ban on anything is necessary, it should be on the negativity attached to sex in Indian society.
Satvik Varma is an advocate based in New Delhi & an Aspen India Leadership Fellow.