Shri R.P.

Tiwari,
Deputy Director,
Rajya Sabha Secretariat,
Parliament House Annexe,
New Delhi 110 001
28
th
July 2013

Dear Shri Bhagat Singh Koyshari
Re: Response to the petition on cyber pornography
We are a human rights lawyering group that has been working in the country for the
past thirteen years. A significant part of our work has been with issues of gender
violence and discrimination and we have also been associated with the rights of
sexual minorities. Amongst other cases that we have been a part of is the Naz
Foundation case which saw the Delhi high court decriminalizing homosexuality. A
judgment on the case is now pending in the Supreme Court. We have also worked
on various aspects of free speech laws as well as the right to privacy, and have
authored numerous articles and monographs on the issue.
We write in response to the call for public comments to the committee on petitions
that is considering the petition of Jainacharya Vijaya Ratnasundersuriji and three
others and countersigned by Shri Vijay J. Darda, MP, Rajya Sabha. The petition
before the Committee highlights the challenge of pornography on the internet and
seeks an amendment to the Information Technology Act to make pornography on
computer/mobile a crime entailing severe punishment to the producers,
distributers and viewers of such sites. We are particularly concerned about the call
to criminalize the viewing of pornography.
According to the petitioners the growth of pornography online is cause for serious
concern and they link pornography to the degradation of moral values, the rise of
sexual assaults as well as the increase in sexually transmitted diseases. While
pornography raises a number of regulatory challenges to all governments we are
extremely troubled by the call for the criminalization of the private viewing of
pornography as it seriously impinges on the right to privacy of individuals and we
would strongly urge the committee to reject the petition or to initiate any legislative
amendment based on the same.
It is important to recognize that the debates on pornography in India and across the
world are complex and encompass a wide range of positions with many supporters
and detractors and it is crucial in considering any policy on pornography it is
important strive for a balance between these different views. The petition before the
committee is not backed by any substantive studies and relies instead on rhetorical
claims about the adverse impact of pornography.
Traditionally the debate on pornography has been split between the liberal defence
of the freedom of consenting adults to publish and consume pornography in private
while moral and religious conservatives have sought to have pornography banned
for its obscenity, its corrupting impact on consumers and its corrosive effect on
traditional family and religious values. In recent times, feminists have also been
equally divided in their response to pornography- with arguments for and against
pornography. Our submission seeks to evaluate some of the claims that are made
about pornography as well as a survey of the legal consequences of the proposed
petition.
We submit our arguments under the four following heads
1. Pornography and Sexual Violence: Truth or Myths?
2. Existing laws adequate to deal with the challenge of pornography
3. The Exclusion of private viewing of Pornography in Criminal law
4. Pornography and the right to privacy

We request you to kindly consider our submissions in your deliberations.





For Alternative Law Forum



Lawrence Liang
Namita Malhotra
Smarika Kumar
Submissions by Alternative law Forum


1. Pornography and Sexual Violence: Truth or Myths


1.1 Statistics on Population Online and Proliferation of Pornography

The petition filed by Jain Acharya Vijay Ratnasundersuri (Acharya of Jain
Tapagachha Community) in the Rajya Sabha, attempts to establish a simple causal
link between pornography and sexual violence. In relation to the statistics used in
the petition, it states that 70% of the traffic online is connected to pornography. The
most recent survey done by the company ExtremeTech reveals that it is exactly the
opposite that only 30% of the internet traffic relates to pornography.
1
This study
of internet traffic states that factors that should be taken into consideration are that
pornography sites are image and video based and this expands bandwidth
consumption considerably.

This figure is in relation to global consumption of pornography and there is a vast
difference in terms of bandwidth available and number of people online between
countries in the West and India. In India the population of people online is 128
million only (which is close to the population of a single state in India, like
Maharahstra) and amounts to 10% of the entire population
2
. Cyber pornography
that is available only to only 10% of the population is not close to the devastating
phenomenon as alleged in the petition.

The concerns raised in the petition equally apply to other rights of people online.
While there is only 10% people online, there is a rapid increase in the number of
people coming online every year (40%)
3
and approximately half of Indias
population has access to mobile phones (though not all phones are capable of
streaming pornographic images or videos). What is obvious is that while the figures
in relation to cyber pornography are exaggerated, the impact of a law that curtails
the right of free speech and reception online will impact a substantial portion of the
population including especially journalists, bloggers and news media, and also how
this medium and technology can be accessed and used by people in the future. Even
with the seemingly miniscule figures of people online, the internet is becoming an
increasingly important space for journalism, discussion and political opinion-

1
Sebastian Anthony, Just how big are porn sites?, ExtremeTech, April 4 2012. Available online
at http://www.extremetech.com/computing/123929-just-how-big-are-porn-sites and Ted Thornhill,
Is the whole world looking at porn? Biggest site gets over four billion hits a month, MailOnline, 9
April 2012. Available online at http://www.dailymail.co.uk/sciencetech/article-2127201/Porn-site-
Xvideos-worlds-biggest-4bn-hits-month-30-web-traffic-porn.html
2
Comprehensive Indian Internet Usage Statistics (Report), based on data collected by ComScore
from July 2011-2012. Available Online at http://trak.in/tags/business/2012/08/27/comprehensive-
indian-internet-usage-statistics-report/
3
Ibid n.2.
making.


1.2 Delinking Sexual Violence and Pornography

The petition claims the following in relation to cyber pornography without any
substantial basis or studies provided that can be refuted that cyber pornography is
hazardous to society as a whole, the consumption of cyber pornography leads to
sexual violence, that it leads to family dissolution, inadvertent exposure of children
to pornography and spread of child pornography. Of these, the latter two that are
raised are legitimate concerns and the problem of child pornography and the use of
internet by pedophile predators, was taken seriously at a global scale as early as
May 2000. This led to the ratification of the Optional Protocol on Child
Pornography by 115 countries across the globe, including India, that allows for
blocking of child pornography at the national level.

The prayers of the petition demands that bodies such as Telecom Regulatory
Authority of India curb mobile pornography, the Indian State provide free filters to
curb online porn, and establish a cyber police force. Most of these demands are
already met under the current existing regime, and the only substantial new change
proposed is to criminalize the viewers of extreme pornography, aside from the
producers and distributors. The existing law covers the production and distribution
of any obscene material including online pornography both under S.292 of the
Indian Penal Code 1860 and s.67 and Sec. 66E of the Information Technology Act,
2000. What is not covered under the law and has never been an offence is the
consumption or merely watching of obscene material, including pornography. We
shall examine this in detail in section 2 and 3 of our submission.

The main argument of the petition is that studies have established that cyber
pornography is hazardous to society as a whole, and that the existence and
consumption of cyber pornography leads to sexual violence. As well-intentioned as
this concern might be, it is misguided.

Studies on Pornography and Sexual Violence

Globally a number of studies have been undertaken on whether there is a causal link
between pornography and sexual violence. Here we undertake a survey of the major
studies and their findings, though none of the studies ever conclusively could
establish a link between pornography and sexual violence. The America-based
research group and resource on sexual violence, domestic violence and related
matters VAWNET.org (National Online Resource Center on Violence Against
Women) undertook a survey of the major literature and studies on pornography and
sexual violence in recent times. In this study it states that

If the question about the connection between pornography and
violence is constructed simplistically Does pornography cause
rape? the answer is clearly no. Since some men who use
pornography dont rape, and some men who rape dont use
pornography, pornography is neither a necessary nor sufficient
condition for rape.

The study also goes on to say that critics of pornography do not view
pornography as the sole causal factor for sexual violence but raise the
question as to in what way is pornography implicated in sexual violence in
this or any culture.

This survey looks at sociological studies, scientific studies, data-based studies and
experimental work. The study by Malamuth, Addisson and Koss
4
reaches the
conclusion that high pornography use is not necessarily indicative of high risk for
sexual aggression. Another finding was that even if it can be established that
groups of sexual offenders are more generally users of pornography than non-
offenders, no clear link can be established between violent or degrading
pornography and committing sexual offences. This study reaches the conclusion that
pornography is a factor only with high-risk men prone to violence and that
pornography is merely a symptom of their compulsion, rather than a cause. In
relation to sex-offenders, this study states that particular background and childhood
experience, cultural milieu and other biographical influences, to be more important
than the impact of media.

One of the conclusions of the VAWNET study is to adopt the feminist critique of
pornographys harm to women and children used in the production of pornography.
Here the concern is with the harm done by pornography in concrete and specific
terms, rather than to attribute criminal behaviour to the phenomenon or general
prevalence of pornography. This especially means to focus on the rights of the
women captured in pornographic videos with or without their consent or
knowledge and whether they are being exploited in the making of such videos. In
the Indian context where amateur pornography production is perhaps higher than
the consumption of industry-produced porn, the rights of the women are usually to
do with her consent to be in the video or her consent to the video being shared
online i.e. the womans right to privacy.

This right is currently protected under the right to life (see section on right to
privacy) but also a new section in the Indian Penal Code, 1860 on voyeurism
(S.354C of the Indian Penal Code) that criminalizes the taking and sharing of the
image of a woman during a private act in circumstances where she would expect not
to be observed.

Under S.354C of the Indian Penal Code on voyeurism, the offences included are
capturing the image of a woman in a private or sexual act with a hidden camera or

4
Malamuth, Addison and Koss, Pornography and Sexual Violence: Are there reliable effects and can
we understand them?, Annual Review of Sex Research, 2000, Vol.11, p.26-91.
device, without the consent of the woman. If the woman consents to the capture of
the images but not to its dissemination, then it is still an offence under the same law
and the imprisonment is from three to seven years. Forcibly showing pornography
to a woman is also included under sexual harassment under S.354A of the Indian
Penal Code.

The VAWNET study also states that possibly pornography contributes to a society in
which men can commit sexual offences with impunity or to rape culture where
rape is not taken seriously as an offence against integrity of body and mind of the
woman. The VAWNET study also concludes that pornography harms because it
reinforces womens subordinate status but this particular conclusion has been
critiqued by the Danish study that looks at the impact of legalization of pornography
on incidents of sexual violence. Pornography is hardly the sole contributing factor
towards the existence of rape culture and various other social, cultural factors have
to be taken into consideration, including the failure of the legal system to respond
effectively in cases of rape and sexual violence.

Meta studies of data or epidemiological studies that look at statistical data as
representative of reality also look at the question of pornography.
5
Berl Kutchinsky
looks at Denmark where pornography has been legalized (and so its sale and
distribution and watching are not offences) and examines what impact that has had
on sexual violence and rape. Kutchinksys study is not based on establishing
whether or not there is (at the individual level of the offender) an emotional of
affective link between watching pornography and committing a sexual offence. He is
looking at empirical data on sexual violence in Denmark, Sweden and West
Germany since the legalization of pornography, and finds that there has been
a decrease in incidents of sexual violence and rape in all three countries.

Kutchinsky in his study also quotes from the United States Commission on
Obscenity and Pornography (1970) that finds that many sex offenders reported
sexually repressed family background, immature sexual histories and rigid attitudes
towards sexuality and they in fact had less exposure to erotic material during their
adolescence. Kutchinsky in his report says that other impacts of pornography such
as its impact on marital relations, that it degrades women and causes sexual
callousness, encourages sexual perversion, causes moral outrage etc. are often too
vague and cannot be clearly established enough to make the case of pornography as
the sole culprit. In addition, in the Indian context such accusations are made about
certain kinds of risqu cinema or advertising and late-night television as well. In this
regard, the existing law of obscenity under both the IPC and IT Act and the legal
mechanism it provides is adequate to allow for people to make complaints and
approach the judiciary and demand the censorship or ban of semi-explicit and
explicit material that they find offensive.


5
Berl Kutchinsky, Pornography, sex crime, and public policy, Institute of Criminology and
Criminal Science, University of Copenhagen, Denmark, 1991.





1.3 Harmful Content in the Indian Context

The EROTICS survey
6
is one of the few surveys undertaken by a team of qualified
experts and academics on sexual practices and behaviour in India. This survey
included both questionnaires and long interview sessions. More than 60% of the
respondents agreed on the value of the internet as a storehouse of information and
that it allowed them to connect globally. While 60% of women and 80% of men
admitted to coming across sexual content online, about half of the women also said
that it related to sexual health related information or about love and romance. This
study also found that in the Indian context, there is an acceptance of the use of
pornography within a marriage where it is seen both as pleasurable and natural for
a couple to enhance their sex life through porn. What was seen as a major issue of
concern was to ensure that children do not have access to pornography by using
filters and controlling access by children to the computer or internet. Very few
recommended banning pornography per se to solve this problem.

In the absence of sex education which is banned in 12 states in India and in 2008 the
Ministry of Human Resource and Development turned down a proposal for
comprehensive sex education in schools
7
, the internet plays a role in addressing and
answering many sex and health related queries. Most of these are via bulletin
boards or services that allow access to doctors and sexperts, but could easily be
mistaken for pornographic websites by basic filtering programs. As stated in the
report of the survey:

A significant impact of the internet all over the world has been
the way it has opened up access to and discussion of sexuality
rights. In India too, the internet has led to opening up of
possibilities of intimacy and relationships, including marriages,
based on online associations. It has also opened up routes of
information on sexuality, sexual health and sexuality rights. It
has enhanced the possibilities for individuals to assert their
sexuality rights, gain knowledge about sexual and reproductive
health, articulate their queer-ness and sexual preferences, seek
pleasure and sensuality, express their sexualities and engage
with their selves differently from what is possible offline.

6
Manjima Bhattacharjya and Maya Ganesh, Women's Rights, Sexuality and Internet Use, Access and
Regulation in Mumbai, India or the Erotics India Report, Erotics Survey in South Africa, Brazil, India,
Malaysia, Supported by Association for Progressive Communications Womens Program, Published
June 7, 2010
7
Cited from the EROTICS Survey. A. Sengupta, India in Denial over Sex Education. The Guardian, 16
th
August, 2009.

In India, most offices, colleges and other institutions undertake content filtering and
this in itself limits the content that can be accessed by the average user. Cybercafes
require identity cards and have to comply with regulations that limit privacy while
surfing. In this context internet users were asked by the EROTICS survey team as to
what they considered harmful content online or what they understood as harm.

Interestingly, pornography and blue films were not considered as
harmful or offensive as the law, and recent incidents of content
filtering, would have us believe. Internet addictions, however, are a
significant source of concern. The other risks respondents believe
exist in the online world are: economic and financial crimes, fraud
and embezzlement; having personal information, social networking
profiles and images stolen or manipulated; personal email IDs
being hacked, spammed and phished; being misled by strangers;
being preyed upon by men.

The other anxieties that were expressed in relation to pornography were not about
the harm that it might cause by triggering aggressive tendencies and sexual
violence, but that it put unreal expectations on intimate relations and ideas of
womens bodies.

As is the case with incidents of rape and sexual violence, this survey reveals that
online harm too is most likely to happen via people known to the woman, such as
friends, acquaintances, relatives and others rather than complete strangers. This is
also evident in the first case of cyber harassment (State of Tamil Nadu Vs Suhas Katti
2004) where a recently divorced woman was harassed by a family friend, who
posted defamatory and obscene messages about her. The survey reveals that most
people especially women, are worried about online harm that takes place through
connections with other people whether invasion of privacy, harassment, stealing
identity etc. rather than through static content that is available, such as
pornography.

Conclusion

Sexual violence and rape has its causes in various factors including socio-economic
and caste divisions, gendered hierarchy and patriarchy, psychology and background
of the men perpetrating the crime. In most cases it is difficult and impossible to
establish a direct link between media consumption and criminal or sexual violence,
because human behaviour and their relation to media is complex. The reception of
media is not akin to receiving a command or absorbing information without filtering
and humans have an intelligent and sentient relation to the forms of media they
encounter, only partially absorbing and rejecting the information that is received.

Pornography is usually a depiction of a fantasy or imagined scenario, and when
pornography depicts actual acts of sexual violence then the offence that has taken
place is not just of distribution of the media, but of violence against the woman.
Thus what is required is to protect the woman via legal reform and stronger rights
to protect her against invasion of privacy and the exploitation of her body or image
without consent.

(here other points are vagueness of porn as something that is defined as aggravated
form of obscenity which shld be covered in free speech, porn is fantasy not actual
acts)

By addressing pornography or the proliferation of any form of media, rather than
the underlying factors that lead to sexual violence, the State will not be addressing
many other and far more pressing factors that are responsible for rape culture or
prevalence of sexual violence. The factors that lead to rape include caste, class
and gender based hierarchy in society that makes women vulnerable to
violence and harassment and personal, psychological, cultural factors in the
biography of the individual offender. Other contributing factors include the
inefficacy of the policing and legal system in India that has led to very few
effective prosecutions of rape, thus contributing to a culture of impunity when
it comes to sexual violence on women.


2. Existing Laws are adequate to deal with the challenge of pornography

There are a number of legal provisions in the Indian Penal Code and the others laws
which already criminalize pornography and are adequate to addressing the
circulation of pornographic materials. The concerns of the petitioners lies in the fact
that the existing laws are inadequate to deal with the consumption of private
pornography in private, there is good reason why the law has deliberately chosen to
exclude private viewing from the purview of criminal law which we shall deal with
in detail in the subsequent section of our submissions.

The rules for the consideration of petitions clearly state that the petition should --

- relate to Bill proposed
- anything pending before the Council i.e. RS
- anything of public interest unless
- comes under cognizance of court or similar legal body (tribunal etc.)
- raises matters not of primary concern to Govt of India
- which can be raised on a substantial resolution in the RS
- which can be taken care of by existing law or regulation

In our view given that the issue is adequately addressed by existing laws and
regulations there is no need for the committee to deliberate on further action.


Section 292 of the Indian Penal Code deals with obscenity and it says a book,
pamphlet, paper, writing, drawing, painting representation, figure or any other
object, shall be deemed to be obscene if it is lascivious or appeals to the prurient
interest or if its effect, or (where it comprises two or more distinct items) the effect
of any one of its items, is, if taken as a whole, 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.]

It also states

(2) 3[ ] Whoever

(a)sells, lets to hire, distributes, publicly exhibits or in any manner puts into
circulation, or for purposes of sale, hire, distribution, public exhibition or
circulation, makes, reduces or has in his possession any obscene book,
pamphlet, paper, drawing, painting, representation or figure or any other
obscene object whatsoever, or
(b) imports, exports or conveys any obscene object for any of the purposes
aforesaid, or knowing or having reason to believe that such object will be sold,
let to hire, distributed or publicly exhibited or in any manner put into
circulation, or
(c) takes part in or receives profits from any business in the course of which he
knows or has reason to believe that any such obscene objects are, for any of the
purposes aforesaid, made, produced, purchased, kept, imported, exported,
conveyed, publicly exhibited or in any manner put into circulation,

shall be punished 1[ on first conviction with imprisonment of either
description for a term which may extend to two years, and with fine which
may extend to two thousand rupees, and, in the event of a 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 five
thousand rupees]

The scope of Sec. 292(2) is wide enough to cover any act of transmission or
publishing of pornographic content. While the law itself does not define
pornography and only defines obscenity it has generally been understood that
pornography is a subset of obscene content.

In the leading case on obscenity Ranjit D. Udeshi v. State of Maharashtra
8
, the court
upheld the Hicklin test which forms the core of Sec. 292 of the IPC. They held that
the test to adopt in India is whether any obscene material has a preponderating
social purpose or profit and all content that appeals purely to the carnal sides of
human nature will fall within the definition of obscenity. It was also held that there
is some difference between the obscenity and pornography as the latter denotes
writings, pictures etc. only intended to arouse sexual desire while the former may
include writing etc. not intended to do so but which have that tendency and both, of
course, offend against public decency and morals but pornography is obscenity in a
more aggravated form.
There is in other words a presumption that all forms of pornography would be
considered obscene and outside the scope of protected speech. While the court says
that there may be forms of sexual speech which would be provided constitutional
protection if it can be shown to have either artistic merit or social benefits in the
case of pornography there is a clear presumption that it exists merely for carnal
gratification and hence outside the scope of any justification.

In addition to Sec. 292 the IPC also contains Sec. 509 which penalizes any action
intended to insult the modesty of a woman

509. Word, gesture or act intended to insult the modesty of a woman.--
Whoever, intending to insult the modesty of any woman, utters any word,
makes any sound or gesture, or exhibits any object, intending that such word or
sound shall be heard, or that such gesture or object shall be seen, by such
woman, or intrudes upon the privacy of such woman, shall be punished with

8
AIR 1965 SC 881

simple imprisonment for a term which may extend to one year, or with fine, or
with both.


In responding to the challenges posed by the internet, the Information Technology
Act has further criminalized the publication of any obscene content in electronic
form. It replicates the definition provided in Sec. 292 of the IPC and states

67. Publishing of information which is obscene in electronic form.
Whoever publishes or transmits or causes to be published 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 five years
and with fine which may extend to one lakh rupees and in the event of a second
or subsequent conviction with imprisonment of either description for a term
which may extend to ten years and also with fine which may extend to two lakh
rupees.

Through an amendment brought about in 2010 the Act further extended its scope
of operation by criminalizing the violation of any persons privacy., This amendment
responds to the issue of the rise of amateur pornography and the circulation of
illicitly obtained images or images that have been created using spy cameras or
hidden cameras.

Sec. 66E Whoever, intentionally or knowingly captures, publishes or transmits
the image of a private area of any person without his or her consent, under
circumstances violating the privacy of that person, shall be punished with
imprisonment which may extend to three years or with fine not exceeding two
lakh rupees, or with both
Explanation -
For the purposes of this section
(a) transmit means to electronically send a visual image with the intent that
it be viewed by a person or persons;
(b) capture, with respect to an image, means to videotape, photograph, film
or record
by any means;
(c) private area means the naked or undergarment clad genitals, pubic area,
buttocks or female breast;
(d) publishes means reproduction in the printed or electronic form and
making it available for public;
(e) under circumstances violating privacy means circumstances in which a
person can have a reasonable expectation that
(i) he or she could disrobe in privacy, without being concerned that an image of
his private area was being captured; or
(ii) any part of his or her private area would not be visible to the public,
regardless of whether that person is in a public or private place.]

Finally a recent amendment to the Indian penal Code has also included a new
section on voyeurism (S.354C of the Indian Penal Code) that criminalizes the taking
and sharing of the image of a woman during a private act in circumstances where
she would expect not to be observed. Under S.354C of the Indian Penal Code on
voyeurism, the offences included are capturing the image of a woman in a private or
sexual act with a hidden camera or device, without the consent of the woman. If the
woman consents to the capture of the images but not to its dissemination, then it is
still an offence under the same law and the imprisonment is from three to seven
years. Forcibly showing pornography to a woman is also included under sexual
harassment under S.354A of the Indian Penal Code.

Collectively we believe that these laws adequately address the question of
pornography and there is no need to amend the IT Act to further criminalize
pornography. We now turn to why there the consumption of pornography is not a
criminal offence.






3. The Exclusion of private viewing of Pornography in Criminal law

All the laws governing obscene content in India make it an offence to publicly
circulate proscribed content but the law does not criminalize the private viewing of
obscene content or even pornography.

In a 2010 decision Chandrakant Mansaram More v. State of Maharashtra the high
court had to answer the question of whether it was an offence to watch
pornographic films in private. The police had conducted a raid on a private rave
party in which inter alia they charged the accused persons under Sec. 292 for
possessing and viewing pornographic films. The court held that watching
pornographic films in private was not an offence under Sec. 292 of the IPC.

A reading of clause (a) of sub-Section (2) makes it clear that offence is
committed if either someone sells , lets to hire, distributes , publicly exhibits, or
in any manner puts into circulation, or he for the purposes of sale, hire,
distribution, public exhibition or putting in circulation, makes produces or
keeps in possession any obscence book, pamphlet, paper, drawing, painting,
representation or figure or any other obscene object. simpliciter viewing of an
obscene object is not an offence under clause (a). It becomes an offence only
when someone has in possession such object for the purposes of sale, hire,
distribution, publicly exhibiting or putting into circulation. Thus even assuming
that it was in the computer and was on the screen at the time the raiding party
reached the bungalow, in my opinion, the petitioners cannot be charged under
Section 292 of IPC.
They also relied on an earlier decision in the Jagdish Chavla Case
9
in which the
court allowing for a quashing of criminal proceedings under Sec. 292 held that
obscene materials which were not meant for public consumption did not attract Sec.
292 of the IPC.
The key question arising from these cases and crucial to our discussion of an
amendment to the IT Act is why the law chooses to exempt private consumption of
pornography. Can a government legitimately prohibit citizens from publishing or
viewing pornography, or would this be an unjustified violation of basic freedoms?
This question forms the core of the current debate as it raises fundamental issues
about the conditions under which the state may use criminal law to limit the
freedom of individuals.
2.1 The Harm Principle
One of the most important contributions to our understanding of the moral scope of
criminal law is Joel Feinbergs four volume study of the moral limits of criminal law.

9
1999 Cri. L.J.2562
Feinberg build on John Stuart Mills Harm Principle, which is considered to be the
foundation of the modern liberal State. According to Mill the only purpose for which
power can be rightfully exercised over any member of a civilized community, against
his will, is to prevent harm to others."
Joel Feinberg has interpreted this Harm principle in the following manner:
It is always a good reason in support of penal legislation that it would
probably be effective in preventing (eliminating, reducing) harm to persons
other than the actor (the one prohibited from acting) and there is probably no
other means that is equally effective at no greater cost to other values.
(Feinberg, Harm to Others, 26).
The key question to consider is whether the proposed amendment seeking to
criminalize private viewing of pornography is morally or legally justified according
to the harm principle.
Feinbergs Harm Principle can be divided into three instances where the
justifiability of State interference arise:
a. Cases Wherein State Interference Is Never Justified
State interference to penalise an act can never be justified where there is no
harm being caused to persons other than the actor due to such acts.
b. Cases Wherein State Interference May Be But Is Not Necessarily
Justified
State interference to penalise an act may be, but not necessarily or
conclusively justified where there is harm being caused to persons other
than the actor due to such acts.
c. Cases Wherein State Interference Is Justified
State interference to penalise an act shall be justified, if and only if all of the
following conditions are fulfilled:
a. The act causes harm to persons other than the actor.
b. There is no means to prevent such harm as outlined in a. that is effective in
preventing the harm, as well as undermines other values (like liberty) less
than penalisation will do.
Therefore, to find out whether State interference can be justified, a cost benefit
analysis should be undertaken to decide whether the State should in fact act. The
state can only act in response to prevent harm if it is likely to be effective in doing so
and if state action passes a value cost-benefit test for the particular case.
The exception to the general rule that the state should not penalize any action in
which there is no harm caused to any one other than the actor of such acts may be
found in the principle of legal moralism and paternalism. In India there are a
number of laws which are founded on the principle of legal paternalism ranging
from the laws criminalizing individual drug use, attempts to commit suicide etc. We
could locate the regulation of obscenity content along the continuum of legal
paternalism but the question that arises is the scope of legal paternalism. While it
may relatively easy to justify the public transaction of pornography the question
that arises with respect to private viewing of pornography is whether there is any
harm that is caused. There are certainly categories of pornography (such as child
pornography) which is so clearly abhorrent (legal moralism) that their possession
and viewing would itself be considered immoral regardless of whether there is any
harm caused but can the same be said for the viewing of consensual adult
pornography? To answer this we need to examine when state interference is
justified when there is no harm done.

2.2 When is State interference into the actions of a person causing harm to no
one other than himself justified?

Feinberg justifies State interference into the actions of its citizens when the actor is
not working completely autonomously or entirely voluntarily when he performs the
act in question. Therefore Feinberg is of the position that the prevention of harm to
the self can be a good reason for criminal law prohibition when the harm to the self
would arise in a substantially nonvoluntary way. Feingberg is however categorical
that State interference is not justified when actor acts voluntarily and with full
autonomy and does not cause harm. A key element of this doctrine is the idea
that harm or risk of harm to an individual subjection to which that very individual
voluntarily consents never constitutes a good reason supporting criminal law
prohibition to prevent the occurrence of the harm.

Another legal scholar Graham Hughes examining the development of the principles
of privacy in relation to obscenity cases has commented on "the maturing
constitutional freedom to engage in discreet sexual stimulation or gratification.
We anticipate that the supporters of the petition will argue that while these
principles may be applicable in the west the situation in India is different since we
are a country in which a large number of people are illiterate. It would be useful to
remind them of the what some leaders of the Indian Freedom movement felt about
this.
In 1928 the Indian Cinematograph Committee was constituted to examine the
impact of cinema on the native population. The racist and patronizing assumption
of the committee was that Indians were not mature enough to deal with the
influence of cinema especially with sexual and violent content. One of the
interviewees who outright rejected these assumptions was Lala Lajpat Rai who said


I do not agree with that view at all, and I will give you my reasons too., First of
all, the influence of the cinema is no more and no greater than the influence of
the novel or the drama. The college youths read a lot of novels, both American
and European, and it is from their subjects of these novels, that most films are
produced and I have no apprehension that the films are likely to be more harmful
than the reading of novels and dramas. The fact is that the western civilization is
spreading across the world. It has its good effects and its bad effects, and we
cannot have the one without the other. I am sufficiently confident that our people
will be able to resist the evil influences of the cinema on account of the general
atmosphere of sexual morality that prevails in this country. Of course there will
be a few individual people who may go astray here and there, but I dont want to
make that the basis of action.. I dont want the youth of this country to be
brought up in a nursery. They should know al these things, because they will be
better able resist those things when they go out. They should see all those things
here and they will be able to understand all the points of modern life.

Lajpat Rai was asserting a confident future for Indian citizens- one in which legal
paternalism would only have a limited role to play. The dangers of the current
petition lie in their infantilizing of the citizens of India. Assuming that large numbers
of Indians do indeed access pornography via the internet and assuming that the
content does not depict child pornography or has not been obtained against the
consent of any individual then what is the exact nature of harm that is being
articulated? One of the assumptions of the petition is that the self harm that is
caused is either of a moral nature (depravation) or related to health (mental health).
As we have shown there is no reasonable cause to believe that exposure to sexually
explicit material results in propelling any harmful behavior nor indeed does it affect
an individual.
Joel Finberg in his study quotes the noted author Anthony Burgess and it is worth
reproducing the quote here:
A pornographic work represents social acts of sex, frequently of a perverse or
wholly fantastic nature, often without consulting the limits of physical
possibility. Such works encourage solitary fantasy, which is then usually quite
harmlessly discharged in masturbation. A pornographic book is, then, an
instrument for procuring a sexual catharsis, but it rarely promotes the desire to
achieve this through a social mode, an act of erotic congress: the book is, in a
sense, a substitute for a sexual partner.



4. Pornography and the right to privacy

When we deny to others their interior life, we deny ourselves all knowledge of it. We
are unaware of what, unhindered, they would choose to do, how they presently feel, the
strength of their resolve, what may in consequence ensue
William Gass


Finally we consider the impact of the proposed petition on the fundamental right to
privacy.

The Constitution has been interpreted to provide for the protection of privacy under
Article 21 which provides for the right to life and personal liberty. The right to
privacy has been interpreted as part of the right to personal liberty.

In Kharak Singh v. State of UP, Subba Rao, J. while concurring that the fundamental
right to privacy was part of the right to liberty in Article 21, part of the right to
freedom of speech and expression in Article 19(1)(a), and also of the right of
movement in Article 19(1)(d), held that the Regulations permitting surveillance
violated the fundamental right to privacy. In effect, all the seven learned Judges held
that the "right to privacy" was part of the right to "life" in Article 21.

Additionally in R. Rajagopal v. State of Tamil Nadu, a two-judge bench held the right
to privacy to be implicit in the right to life and liberty guaranteed to the citizens of
India by Article 21. The right to privacy has been further been accepted as implied in
our Constitution, in People's Union for Civil Liberties v. Union of India and Sharda v.
Dharampal.

Also, Mathew J. in Gobind v. State of M.P. referring to the famous Article, "The Right
to Privacy" by Charles Warren and Louis D. Brandeis, (4 HLR 193), stressed that
privacy - the right to be let alone - was an interest that man should be able to assert
directly and not derivatively from his efforts to protect other interests.

The curbing of the private viewing of pornography is an invasion of privacy and
therefore of Article 21 of the Constitution. The contours of the right to privacy itself
are discussed in the following subsections so as to provide fodder for the argument
that the criminalisation of private viewing of pornography is a violation of Article 21
of the Constitution. In a landmark obscenity decision from the United States, Stanley
v . Georgia the issue was whether mere possession in one's own home of an
admittedly obscene film, where there is no attempt to sell it or distribute it further,
could be grounds for prosecution. In a resounding 9-0 decision the Court
emphatically denied that it could. Justice Marshall derived the right to possess
obscene materials from a more general right to privacy implicitly guaranteed, he
claimed, by the first and fourteenth amendments, and made explicit in Griswold -v.
Connecticut.


The appellant, Marshall wrote, "is asserting . . . the right to satisfy his intellectual
and emotional needs in the privacy of his own home. He is asserting the right to be
free from state inquiry into the contents of his library . . . If the First Amendment
means anything, it means that a State has no business telling a man, sitting alone in
his own house, what books he may read or what films he may watch.

4.1 Criminalisation of private viewing of pornography is an invasion of
private space

The right to privacy has been understood to include the protection of private space
against interference by the State. The Delhi High Court in Naz Foundation v. NCT of
Delhi has held:

The right to privacy thus has been held to protect a "private space in which man
may become and remain himself". The ability to do so is exercised in accordance
with individual autonomy.

In it judgment, the Delhi High Court also referred to the dissent of Blackmun, J. in
Bowers, Attorney General of Georgia v. Hardwick et al, was referred to so as to state
that one component of the right to privacy was to occupy a private space free from
government intrusion. The Delhi High Court held that, The privacy recognises that
we all have a right to a sphere of private intimacy and autonomy which allows us to
establish and nurture human relationships without interference from the outside
community.

The private viewing of pornography will then amount to the invasion by the State, of
the private space of an individual, because private viewing of porn by definition
would mean such viewing in a sphere of private intimacy with oneself or other
people.

4.2. Right to privacy includes the protection of intimate choices

Even as the right to privacy is said to include the protection of the private sphere, it
also protects the intimate choices of individuals. In Naz Foundation v. NCT of Delhi,
the Delhi High Court referred to the US case of Planned Parenthood of Southeastern
Pa v. Casey, wherein the Court confirmed the constitutional protection to personal
decisions relating to marriage, procreation, contraception, family relationships, child
rearing and education. In explaining the respect the Constitution demands for the
autonomy of the person in making these choices, the Court stated as follows: These
matters, involving the most intimate and personal choices a person may make in a
lifetime, choices central to personal dignity and autonomy, are central to the liberty
protected by the Fourteenth Amendment. At the heart of liberty is the right to define
one's own concept of existence, of meaning, of the universe, and of the mystery of
human life. Beliefs about these matters could not define the attributes of
personhood were they formed under compulsion of the State.
Additionally, in District Registrar & Collector, Hyderabad v. Canara Bank, Justice
Lahoti referred to an observation of a commentator in (1976) 64 Cal. L. Rev 1447, that
privacy centers round values of repose, sanctuary and intimate decision. Repose
refers to freedom from unwanted stimuli; sanctuary to protection against intrusive
observation; and intimate decision, to autonomy with respect to the most personal
of life choices.

The above observations make it clear that the right to privacy includes the
protection of intimate choices made by individuals. Whether to watch pornography
or not, in private is one of the intimate choices that an individual may make in his
life, and the State criminalising one of the options to such an intimate decision will
amount to the invasion of the right to privacy by virtue of interfering with the
intimate choices made by an individual.

4.3. Criminalisation of private viewing of pornography is an invasion of
individual autonomy

It has been held in District Registrar and Collector, Hyderabad and Another v. Canara
Bank and Another, that the right to privacy deals with persons and not places.
Explaining this concept, Lahoti J. has referred to observations of Stevens, J. in
Thornburgh v. American College of O and G, where it has been held that "the concept
of privacy embodies the moral fact that a person belongs to himself and not to
others nor to society as a whole".

Taking this observation into account, privacy can be understood as a right that
protects the integrity of a person as someone who can act in his individual capacity.
Expanding on this, Lahoti, CJ. also referred to an observation of a commentator in
(1976) 64 Cal. L. Rev 1447, that privacy centers round values of repose,
sanctuary and intimate decision. Repose refers to freedom from unwanted stimuli;
sanctuary to protection against intrusive observation; and intimate decision, to
autonomy with respect to the most personal of life choices. This again asserts the
component of protection of individual choice and autonomy with regard to ones
own life choices as central to the right to privacy.

Additionally in Gobind v. State of M.P., the Supreme Court has observed, Individual
autonomy, perhaps the central concern of any system of limited government, is
protected in part under our Constitution by explicit Constitutional guarantees. "In
the application of the Constitution our contemplation cannot only be of what has
been but what may be." Time works changes and brings into existence new
conditions. Subtler and far reaching means of invading privacy will make it possible
to be heard in the street what is whispered in the closet. Yet, too broad a definition
of privacy raises serious questions about the propriety of judicial reliance on a right
that is not explicit in the Constitution. Of course, privacy primarily concerns the
individuals. It therefore relates to and overlaps with the concept of liberty. The most
serious advocate of privacy must confess that there are serious problems of defining
the essence and scope of the right. Privacy interest in autonomy must also be placed
in the context of other rights and values.
This observation again emphasises upon the protection of individual autonomy
under the scope of right to privacy, even while outlining the need to balance the
right to privacy against other rights.
Blackmun, J. in his dissent in Bowers, Attorney General of Georgia v. Hardwick et al,
made it clear that the much - quoted "right to be let alone" should be seen not simply
as a negative right to occupy a private space free from government intrusion, but as a
right to get on with your life, your personality and make fundamental decisions about
your intimate relations without penalisation. The privacy recognises that we all have a
right to a sphere of private intimacy and autonomy which allows us to establish and
[WP(C)7455/2001] Page 34 of 105 nurture human relationships without interference
from the outside community. This has been cited with approval in Naz Foundation v.
NCT of Delhi.

If the private viewing of porn is criminalised, then the individual autonomy of a
person will be destroyed because the State can then curb the personal choice of the
individual to watch porn, and it will affect the personal life choice of the individual.

4.4. Right to privacy entails the right to be left alone

Indian courts have also envisioned the right to privacy as the right to be left alone.
In R. Rajagopal v. State of Tamil Nadu, the court held that the right to privacy is the
right to be left alone. The Naz Foundation decision by the Delhi High Court referred to
this judgment to add that, A citizen has a right to safeguard the privacy of his own,
his family, marriage, procreation, motherhood, child bearing and education among
many other matters.
In Gobind v. State of M.P. Mathew, J. referred to Griswold v. Connecticut and Jane Roe
v. Henry Wade and observed: There can be no doubt that the makers of our
Constitution wanted to ensure conditions favourable to the pursuit of happiness.
They certainly realized as Brandeis, J. said in his dissent in Olmstead v. United States,
the significance of man's spiritual nature, of his feelings and of his intellect and that
only a part of the pain, pleasure, satisfaction of life can be found in material things
and therefore they must be deemed to have conferred upon the individual as against
the Government a sphere where he should be let alone.

4.5. Right to privacy can be infringed only when there is compelling State
interest

Courts in India have held that the right to privacy of an individual can be infringed
only when there is compelling State interest. In Gobind v. State of M.P., Mathew J.
held:
There can be no doubt that privacy-dignity claims deserve to be examined
with care and to be denied only when an important countervailing interest is
shown to be superior. If the Court does find that a claimed right is entitled to
protection as a fundamental privacy right, a law infringing it must satisfy the
compelling state interest test. Then the question would be whether a state
interest is of such paramount importance as would justify an infringement of
the right. Obviously, if the enforcement of morality were held to be a compelling
as well as a permissible state interest, the characterization of claimed rights as
a fundamental privacy right would be of far less significance.

This leads one to conclude that courts will consider the infringement of right to
privacy as permissible when there is a compelling State interest, but only in such
cases.

The court in Gobind v. State of M.P. has further observed, The question whether
enforcement of morality is a state interest sufficient to justify the infringement of a
fundamental privacy right need not be considered for the purpose of this case and
therefore we refuse to enter the controversial thicket whether enforcement of
morality is a function of state.

In Naz Foundation v. State of Delhi however, the Delhi High Court held,

Thus popular morality or public disapproval of certain acts is not a valid
justification for restriction of the fundamental rights under Article 21. Popular
morality, as distinct from a constitutional morality derived from constitutional
values, is based on shifting and subjecting notions of right and wrong. If there is
any type of "morality" that can pass the test of compelling state interest, it must
be "constitutional" morality and not public morality.

Reading these two judgments together, it can be argued that the enforcement of
public morality at least, cannot be a compelling State interest. Therefore the
morality of watching pornography cannot be a consideration for the law to justify
the infringement of the right to privacy and to define the limitations of Article 21.