ONLINE PORNOGRAPHY: NORMALIZING THE BIZZARE

ABSTRACT
The recent proliferation of Internet-enabled technology has significantly changed the way
adolescents encounter and consume sexually explicit material. Once confined to a personal
computer attached to a telephone line, with the upsurge of the Internet it has come easier and
more ubiquitous access to pornography. The proliferation and mainstreaming of pornography
over the last 2 decades, especially through the Internet, have influenced youth culture and
adolescent development in inimitable and diverse ways. The debate about online pornography is
not newfangled. There have been numerous instances wherein steps have been taken to impose a
ban on the viewing of pornography in various media that it could be made available. However,
the idea of intercourse is not novel to us. We have indulged in this activity for as long as we have
been on this planet. It is not just a method of procreation but of expression as well. As far as such
matters are concerned, people should be free to express themselves within certain limits and
restrictions. Methods such as banning should be put to task when an individual is seen
encroaching upon someone else’s right of any kind. Watching pornographic clips or movies
through internet is one’s personal choice. And imposing a ban on this is like infringing the
fundamental right of expression. Expressing oneself in the manner in which you want to express
yourself is a prerequisite for development of one’s personality and for flourishing in life. It
should be left to the will of the person to decide and infer what is good and what is not.
Entwining in the private matters of an individual is something that the State should not put
fingers into. Internet is supposed to put an end to most of the problems of human life and allow
people to come closer to each other. It also helps in developing a very broad community of
viewers across the world. There have been efforts in this country to curb this freedom of
expression many times even when reasonable restrictions were in place. This paper, will try to
evaluate and test the reasons stated for banning “pornography” on the gauge of fairness and
justice with the help of case laws.

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 INTRODUCTION

“Obscenity is the cleansing process whereas pornography only adds to the murk”- Henry
Miller

Obscenity, according to Oxford dictionary is an explicit description or exhibition of activity in

literature films etc. intended to stimulate erotic rather than aesthetic feelings. The definition
provided by Williams Committee on Obscenity and Film Censorship describes pornography as
sexually explicit representation which has the function or intention of sexually arousing its
audience.1 What should staunchly be avoided is the aspect of morality in here. The values of
society and norms should be checked on the basis of that society. 2 The changes in the mindset of
our society can be actually seen and observed in various reports published by remarkable
establishments.3 Their primary finding is that India is the third largest porn watching country
after US and UK. However, morality plays a pivotal role in Indian society. If watching
pornography is what people want, then such an act cannot be pushed under the head of
immorality. The question that needs to be answered here is that how can the depiction of two
consenting adults partaking in such activity be deemed wrong? In the words of Vizzard “What
kind of God would God be who would create flesh and blood and then makes man spend all his
energies trying to contradict them?” 4 These interests of the people should be protected until and
unless they curtail the freedom of others. In our country we have the right of privacy and it
should be on us to decide what to watch and what not.5 With advancement in the field of
technology, we have witnessed a number of changes in almost every field of human life. Be it
our sources of entertainment or our work, changes have been observed in every sphere of life.
Some of these changes have been for the good of the society while others have led to worse off

1
Utah State History, “Utah Historical Quarterly, Volume 59, Number 1-4, 1991” (Issue)
<https://issuu.com/utah10/docs/volume_59_1991> accessed January 18, 2019.
2
Indian Hotel and Restaurant Association (Ahar) and Anr. vs The State of Maharashtra and Ors. Writ Petition
(Civil) No. 576 of 2016(Sup. Ct. India 17 January 2019).
3
Ray S, “India 3rd Most Porn Watching Country In The World, Up From 4th Last Year” ( indiatimes.comMay 9,
2017) <https://www.indiatimes.com/news/world/india-3rd-most-porn-watching-country-in-the-world-up-from-4th-
last-year-249212.html> accessed January 18, 2019.
4
William J. Vizzard, Shots in the Dark: The Policy, Politics, and Symbolism Gun Control Rowman and Littlefields,
2000.
5
Justice K. S. Puttaswamy (Retd.) and Anr. vs Union of India and Ors, Writ Petition (Civil) No. 494 of 2012 (Sup.
Ct. India Aug. 24, 2017).

2
scenarios. Internet pornography is something which is and can be seen from both ends. It has
been hot topic for debate for a really long time because of its connections with the issues like
morality, decency, vulgarity and obscenity. What is obscene for one may not be obscene for
other.6 When it comes to inferring whether something is obscene or not, it needs to be seen in
whole or in its entirety. Light needs to be thrown on the purpose of the thing in question. There
are various judgments in which it appeared that in order to decide whether a particular picture,
video or material/object is obscene is to judge that particular object on the basis of the standards
of an ordinary man’s thinking.7 If an ordinary prudent man does not deem a particular object to
be obscene then that object should not be considered obscene and this test should be based on an
ordinary man’s common sense and wisdom and not on grounds of the prudence of a
“hypersensitive man”.8 Today the Youth of our country is embracing the ways of our culture,
Any act which seeks to destroy this cultural heritage is abhorred by the young masses. Allowing
individuals to view and look at such things in private State shouldn’t be looked down upon until
countervailing interest is shown to be superior 9. Following the philosophy of Jeremy Bentham, if
an activity is capable of bringing us pleasure, why shouldn’t we indulge in it? The fact that sex is
a natural part of one’s life should be understood and accepted. According to Bentham, humans
are pleasure seeking animals or entities as Bentham puts it, but what gives a person pleasure, is
subjective.10 If someone experiences pleasure while he watches a pornographic film or movie,
then in no way can this be considered wrong. He is not wrong merely because he uses his
decided ways. Inferring from that line of logic, the steps to impose a ban on accessing these
pornographic sites is wrong. It is encroachment upon one’s right to life. The grounds mentioned
by the court that it is a wreaking havoc as far as the minds of these children are concerned as
essentially flawed, or the argument that it goes against the idea of morality or degrades the
position of women in society holds no real substance. In this piece, the paper will first discuss
about the subjectivity of pleasure and then move towards the issues relating to obscenity, etc.

6
Ranjit D. Udhesi v state of Maharshtra (1965) 1 SCR 65.
7
Samaresh Bose v Amal Mitra [(1985) 4 SCC 289: 1985SCC (Cri) 523].
8
K. A. Abbas v The Union of India 1971 SCR (2) 446.
9
Gobind v State of Madhya Pradesh & Anr., 1975) 2 SCC 148.
10
18th ed, Jeremy Bentham, Principles of Morals and Legislation, Harvard, 1948.

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 OBSCENITY: “SUBJECTIVE NATURE OF PLEASURE SEEKING BEHAVIOR”
Obscenity is a term that varies subjectively from society to society, thus obviously from
individual to individual.11 So, as far as the term is concerned, it in itself is subjective. What may
be obscene to one may not be obscene to another. It is like the State designating something as
obscene because it thinks such an act would protect our culture and values, morality and
decency. However, what needs to be noted is that needs of an individual come in handy when we
are taking into consideration societal and cultural values. Also, such values vary from time to
time. Some value that formed the core of a society at a given point of time may lose its relevance
over a period of time. To decide, what is obscene and what is not is the duty of the judicial
mechanism present in our country. However, the standards on the basis of which one decides this
are bound to change over a certain period of time. If we trace the history of such discussions by
the judiciary, where standards were ascertained to test whether a particular thing is obscene or
not, we will find that the courts have always taken a liberal view. In order to decide and declare
something as obscene, we need to take the whole object into consideration. In Regina v.
Hicklin,12 the court held that all those things are deemed to be “obscene” which are likely to
corrupt, influence and deprave the mind that is open to such influences. Later, the U.S Supreme
Court in Miller v. California13 gave three tests to determine obscenity and then, the court in Pope
v. Illinios,14 went on to say that to determine obscenity, the whole matter should be brought to
scrutiny which includes societal values, standards and factors which depend on norms and values
of a particular place. There is no settled definition of obscenity. As far as the position in India is
concerned various opinions have been brought to light to decide such matters. Guidelines from
foreign courts also formed a part of the judgment. This debate has always boiled down to the
question- Whether we should consider pornography as obscene or not?

In the case, Directorate General of Doordarshan and ors. v. Anand Patwardhan and Anr,15 three
tests were agreed upon, it was said that the work should be judged on the basis of an average
person’s ability to comprehend, also the work should not depict or be described in a patently
offensive way, sexual conduct should specifically be defined by the applicable state law, and the
11
Indian Hotel and Restaurant Association (Ahar) and Anr. v The State of Maharashtra and Ors. Writ Petition
(Civil) No. 576 of 2016.
12
Regina v Hicklin (1868) 3 QB 360.
13
Miller v California 413 US 497 (1987).
14
Pope v Illinios 481 US 497 (1987).
15
Directorate General of Doordarshan and ors. v. Anand Patwardhan and Anr JT 2006 (8) SC 255

4
work should not lack literary, artistic, political or scientific value.” 16 The honorable court
referred to the Hicklin test17. But the test for obscenity changes and later it was seen by the courts
that there were times like this one when the depiction of scenes in movies and in any place would
be considered as derogatory to public interest but those scenes are not derogatory today. 18 Now
what we need to see is whether a class not taken in isolation is affected by the scene or not. The
recent ban on the pornographic sites is an infringement of the freedom of expression, and the
court cannot impinge upon this freedom of expression until the freedom is pressing and society is
in some sort of immediate danger.19 There are laws in our country which have made child
pornography punishable and non-bailable offence. It has time and again been held in cases that
there should be no suppression of speech and expression while protecting children from harmful
material.20 It will be like to burn the house to roast the pig.21

The main grounds given to ban porn dissemination are as follows;

1. On grounds of morality, values and culture.

2. It will deprave the minds of those who indulge in watching pornography and that it will
lead to rise in sexual crimes.
3. It will have a negative influence on the minds of the children.
4. It presents women in an inferior light and they are made vulnerable to the possibility of
crime.

All the above arguments are flawed. We should not take these things into consideration in
judgments like the one imparted by K.S. Puttaswamy,22 where it was clarified amply that privacy
should be held in high esteem in the Indian sense of morality. The nine judges in the Privacy
judgment unanimously upheld the constitutional protection accorded to privacy in India and went
on to cast it as quintessential in the exercise of other fundamental rights. At various places in the
judgment, privacy was described as a basic natural right. In this case, what is essentially
16
“Chapter 12- Obscenity, Indecency and Violence” (Quizlet) <https://quizlet.com/93561500/chapter-12-obscenity-
indecency-and-violence-flash-cards/ https://quizlet.com/106993352/con-law-test-2-flash-cards/> accessed January
18, 2019flash-card
17
Regina v Hicklin (1868) 3 QB 360.
18
Shri Chandrakant Kalyandas Kakodkar v The State of Maharashtra and Others, 1969 (2) SCC 687.
19
Ajay Goswami v Union of India, (2007) 1 SCC 143.
20
Janet Reno v American Civil Liberties Union, 138 Led 2d 874.
21
Alfred E Butler v State of Michigan,1 Led 2d 412.
22
Justice K. S. Puttaswamy (Retd.) and Anr. v Union of India And Ors, Writ Petition (Civil) No. 494 of 2012 (Sup.
Ct. India Aug. 24, 2017).

5
happening is that you are violating the privacy of a person by interfering in his/her private
matters. Privacy, in its simplest sense, permits every individual to be left alone in a very core that
is inviolable. In a very path-breaking call, the Supreme Court held that privacy could be a basic
right under the Constitution of India. There is a famous saying that power corrupts and absolute
power corrupts absolutely. However, like all different basic rights, Right to privacy it's not
absolute. Excluding setting a replacement benchmark for Indian democracy and clearing all
ambiguity on privacy, the historic judgment by the apex court has set the stage for the
introduction of a replacement privacy law by the govt. At constant time, by linking privacy with
human dignity and preservation of private intimacies, the apex court has ordered the legal ground
for a contemporary interpretation of disputable problems like legislating of sexual activity.
Acknowledging the advent of technology, the supreme court has known privacy of information
as a subset of the right to privacy The court placed the guarantee of an individual’s autonomy
and liberty at the center of the Constitutional scheme for the Indian State and we should respect
the judgment of the apex court. Also, the Naz Foundation,23 went ahead and held that the right to
adequate health including the right to control one's health and body, including sexual
reproductive freedom also form a part of right to privacy.

QUASHING ARGUMENTS RELATED TO DEPRAVITY AND CORRUPTION OF MIND

AND HARM TO OTHERS:
The aforementioned argument was brought forth in the Uttrakhand judgment that watching acts
of such sexual nature results in crime. However, that is not what happens. It is a pity that the
courts which should promote a liberal line of thinking promote such behavior. As far as my
claim is concerned, there is substantive evidence to secure my stand. In the Presidential
commission report on pornography, it was concluded that exposure to pornography probably had
little or no adverse effects on individuals.24 In addition, in an empirical research conducted by the
Home offices, it was stated that there appears to be no casual connection between the
consumption of pornography and anti-social behavior.25 It must also be taken into account that

23
Naz Foundation V. Government of NCT Delhi of New Delhi and Others, Writ Petition (Civil) No. 7455/2001.
24
Vol. 60 Issue 3, Wolfson Nicholson, Eroticism, Obscenity, Pornography and Free Speech, Brooklyn Law Review,
1994.
25
Vol. 22, Edwin W. Tucker, The Law of Obscenity-Where Has It Gone? University of Florida Law Review, 1970.

6
only 25% of India’s population have access to internet. That is only 1 in 4 people who use
internet which means that the pornography has nothing to do with the increasing sexual crime
rates.26 As far as attempts to put an end to crimes are concerned, India has taken various
measures to curb sexual crime rates. To check this ever-increasing problem of sexual crimes in
our country, the State has put enough of reasonable restrictions to maintain and ensure morality
and decency in the society. For instance, we have Section 292 of The Indian Penal Code which
provides for the interpretation of what the judiciary will deem to be obscene. Another instance of
such a restriction by the State is Section 67 of the Information Technology Act which makes it a
punishable offence.27 However, when you do a detailed analysis of such provisions, nowhere is
one going to find that it is illegal to watch or store it for personal use at home. On the contrary, if
an individual chooses to distribute, publish or send such stored material to someone, then such an
action would clearly invite legal consequences. Therefore, there are laws working and punishing
people if found guilty. However, here we are dealing with online pornography so the most
relevant law for our purposes is, the law governing pornographical content on the internet, the
Information Technology Act, 2000. Watching pornographic clips in private and storing it is not
illegal but transmitting or publishing obscene material is illegal. Section 67A28 restricts
publication of sexually explicit or obscene material and 67B29 in definite terms prohibits child
pornography. The first instance where this section was used was in State of Tamil Nadu v Suhas
Kutti.30 In this case, some obscene and defamatory content was posted about the victim on an
online platform. The accused was punished under sections 469,67 and 509 of Indian Penal
Code, 1860. The same was also held in the case, Avinash Baja v. State of NCT of Delhi. 31 These
are some reasonable restrictions which have already been imposed to regulate the behavior of the
masses. However, a complete ban on watching pornography definitely amounts to encroachment
upon the freedom of an individual by the State.

REBUTTING ARGUMENTS RELATED TO ADVERSE INFLUENCE ON YOUNG MINDS:

26
Vol.7 Issue 2, Hariharan, Geetha, Our Unchained Sexual selve: A case for the Liberty to Enjoy Pornography
Privately, NUJS Law Review, 2014.
27
Information Technology Act, S.67, 2000.
28
Information Technology Act, S.67A 2000.
29
Information Technology Act, S.67B, 2000.
30
Tamil Nadu v. Suhas Kutti Case No.:Appeal (crl.) 453 of 1991.
31
Avinash Baja v. State (NCT) Delhi (2005) 3 CompLJ 365 Del.

7
The third argument is that watching pornography leaves an adverse impact on the minds of
children who are able to access such forms of pornography. However, this argument does not
hold true. There is no evidence to prove that exposure to pornographical content harms the
psyche of children. However, assuming for the sake of argument that it does affect the psyche of
children, there are other ways to deal with the problem. Putting restrictions on the rights of the
adults is not the way to go about solving the issue at hand. And if the State is interested in
protecting the rights and psyche of children, then why isn’t the demand for banning tobacco,
drugs and guns acknowledged, aren’t these harmful to children? 32 Making sure that a child does
not indulge in such activities is the duty of parents, teachers and the society at large. However,
when it comes to dealing with such questions, parents are not really comfortable in answering
them. It is largely their reticence that leads children to other sources such as these pornographic
movies. It is natural for children to ask such questions and for parents to be able to answer.
Thus, as far my stand to this argument is concerned, I believe, sex education is a better way to
deal with such a problem. When it comes to protecting children from such influence, measures
all across the world have been undertaken. Child pornography is banned almost everywhere in
the world. Protection of Children from Sexual Offences Act, 2012 also provides for
protection to children against offences of pornography, sexual harassment and sexual assault.

REBUTTING ARGUMENTS RELATED TO DEGRADING POSITION OF WOMEN:

The last argument that I’d like to put forward is that a pornographic clip or movie in no way
degrades women. The Indecent Representation of Woman (Prohibition) Act, 1986 prohibits
the indecent representation of woman by writing, painting or through publication of done without
consent.33 However, in online pornography, the participating adults do so with complete consent.
As far as the participation of women is concerned, there is no coercion or threat of any kind
involved in the act. Also, the contention that pornography portrays women as subservient to men
appears to be completely flawed. While heterosexual pornography involves women and men, in
case of the same sex pornography, only women or only men are involved in the documentation
of the clip, so aren’t men in the case appearing subservient to men for that matter? Sado-
masochistic pornography may involve men being subservient to women as well as women

32
Danny Frederick, Defending Pornography, Libertarian Alliance, 2000.
33
Indecent Representation of Women (Prohibition) Act, S. 2 (c) 1986.

8
being subservient to men. Also, reports from recent newspapers mention that the population of
women specifically in terms of watching porn videos is increasing rapidly. Around 30% of
women in India now regularly visiting porn sites which shows that women are watching this too
and there is no shame in accepting the same.34
In the judgment given by United States v Playboy Entertainment Group Inc.,35 it was held that in
order to justify prohibition of a particular expression, it must be shown that its action was caused
by something more than a mere desire to avoid discomfort that always accompanies an
unpopular view point.

CONCLUSION
As we have already mentioned that the debate about pornography, decency, morality and
obscenity is not ultra-modern. It is a complex issue and hence a broader perspective is required
to deal with this issue. It is not just India but the whole world that deals with this dilemma.
Making and watching of pornography is considered to be a taboo by a major section of the
population all across the world. In almost every corner of the world, a ban has been imposed on
child pornography which is in fact a good step to keep children away from indulging in such
activities. We can also not overlook the fact that porn does affect the way men see women as
they have an image of a women absorbed in their heads which ultimately changes their
expectations of how to look and act. We all are addicted to the new and emerging technology
because it has done wonders for the mankind when used in the right direction. Pornography is
addictive, intensively addictive at times. The addictive aspect of pornography has a biological
substrate, with dopamine hormone release acting as one of the mechanisms for forming the
transmission pathway to pleasure points of the brain. Also, the increased sexual permissiveness
engendered by pornography increases the risk of contracting a sexually transmitted disease or of
being an unwitting parent in an out-of-wedlock pregnancy. It should be understood that the duty
of human beings is to maintain minimal standards of decency and morality in society for a
peaceful living. Our present and future needs protection from this insidious enemy of love,

affection, and of family and social stability. Also, it is the duty of government to keep check on
all social evils. To add to that, it is the judiciary that plays the role of the adjudicator and discerns

34
{50 comments} July 25 2015 Function (d, “More of What Women Want” (Pornhub Porn Videos April 15, 2019)
<http://www.pornhub.com/insights/women-gender-demographics-searches> accessed April 15, 2019.
35
United states v Playboy Entertainment Group, Inc. 146 Led 2d 865.

9
as to what should and should not be acceptable to the citizens of a country according to the
societal standards and values. We need to understand that these things are not obscene but a
basic part of life. With the advent of technology, we also need to form a broader and better
mindset while we are dealing with issues like these. Children these days have easy access to
these sources. The right thing that we could do here is to deal with the issue of misguided notions
in children by letting them know of what is right and what is wrong. Empirical Research needs to
be conducted to check the reality of the society and on that basis; judiciary should come with
something that fits into the contemporary society.

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