New Delhi: Actress Shilpa Shetty’s husband and businessman Raj Kundra was arrested on Monday for allegedly being a “key conspirator” in a case involving the production and publication of pornographic films via mobile apps.
The allegations against Kundra involve setting up a company to develop ‘Hotshots’, a mobile application allegedly used to post porn, help manage and maintain it, oversee its operation and monetary transactions through WhatsApp groups, set up another company to protect Hotshots videos of the hack and suspiciously have large global transfers to bank accounts. It was detained in police custody on Wednesday, until July 23.
But what does Indian pornography law say?
In India, the provisions of the Information Technology (IT) Act 2000, Indian Penal Code (IPC) and Protection of Children Against Sexual Offenses Act 2012 (POCSO) speak of pornography. ThePrint explains.
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Watching porn privately is not illegal
In India, viewing sexually explicit material in private spaces is not illegal. The Supreme Court also orally remark as of July 2015, this cannot prevent an adult from exercising their fundamental right to personal freedom to watch porn in the privacy of their bedroom.
Constitutionally, any restriction on the exercise of freedom of expression must be strictly in accordance with one of the eight grounds set out in Article 19 (2) of the Constitution. In other words, a law can restrict freedom of speech and expression on these eight grounds, including “morality and decency”.
To affirm that pornographic sites violate “morality and decency,” the central government’s Telecommunications Department issued an order in July 2015, requiring Internet service providers to ban 857 pornographic websites. The order came in the context of a motion filed by an Indore-based lawyer calling for a ban on pornographic websites.
However, a few days later the government clarified that the ban was only temporary and specifically targeted child pornography.
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Posting or transmitting porn is illegal
Before the advent of technology, Article 292 of the IPC dealt exclusively with the sale, distribution, public display or circulation of any book, drawing, painting, etc. obscene. or appeals to lustful interest or if its effect … such that it tends to depravity and corrupt a person “who reads, sees or hears it.
Section 293 of the IPC prohibits the sale, distribution, display or circulation of obscene material to anyone under the age of 20, and section 294 criminalizes committing an obscene act or to sing obscene songs in a public place.
However, with pornographic material widely available in electronic form, the Computer Law of 2000 prohibits the publication or transmission of material that is obscene or contains sexually explicit acts in electronic form.
Section 67 of the Act prohibits the publication or transmission of “obscene material” in electronic form. This material, he says, can be anything that is “lascivious or appeals to lascivious interests or if its effect is such that it tends to depravate and corrupt” the people who watch, read or hear it. . Anyone who does this can be punished with three years in prison and a fine of Rs 5 lakh.
Article 67A of the Computer Law provides for penalties for the publication or transmission of material containing sexually explicit acts, etc., in electronic form. Anyone who “publishes or transmits or causes to be published or transmitted” any sexually explicit material can be punished with a prison term of five years and a fine of Rs 10 lakh.
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What role does consent play
The law has also started to recognize consent in this regard. For example, section 66E of the Information Technology Act provides for penalties for “violation of privacy”. It provides for a sentence of 3 years or a fine of up to Rs 2 lakh, for any person who “intentionally or knowingly captures, publishes or transmits the image of a private space of any person without their consent”, undermining to his private life.
Several changes to the IPC in 2013 also underscored the importance of consent. For example, section 354A defines sexual harassment as “showing pornography against a woman’s will”.
The Indecent Portrayal of Women (Prohibition) Act 1986 also prohibits “indecent portrayal of women in advertisements or in publications, writings, paintings, characters or in any other way”.
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Possession of child pornography is illegal
When it comes to child pornography, it is not just about publication or transmission, but also illegal possession under the law.
Article 14 of the POCSO law of 2012 criminalizes “the use of a child or children for pornographic purposes”, providing for a sentence of at least five years in prison with a fine. In the event of a second or subsequent conviction, it provides for a minimum sentence of seven years with a fine.
Section 15 of the POCSO Act also makes it illegal to store or possess child pornography “for the transmission, propagation, display or distribution” in any way. The only exception to this rule is the storage or possession of pornographic material to report it to authorities or to use as evidence in court.
Section 15 also provides for an enhanced sentence of three to five years’ imprisonment for anyone who stores or possesses child pornography for commercial purposes.
In addition, section 67B of the Information Technology Act punishes anyone who posts or transmits material depicting children in sexually explicit acts in electronic form. Thus, under this provision, the creation of text or digital images or the collection, browsing, downloading, advertising, promotion, exchange or distribution of any material depicting children in an ‘obscene manner , indecent or sexually explicit ”is also prohibited.
(Edited by Amit Upadhyaya)
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