vicky downloader : the legality of porn | Part 1

Due to the length of this post this has been broken up into two parts. The first part contains the applicable law and the second part contains the analysis.
Its commonly joked about and probably its even true that pornography is one of the biggest draws to the Internet. However many wonder as to the legality of this practice. In this post I will try to answer some of the questions which come up.

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Sexologist by Paul Keller licensed under CC BY 2.0[/caption]

Law of Pornography

The law on pornography will apply both under the generalized Indian Penal Code, 1860 which contains most penal offences as well as under the Information Technology Act, 2000. Indian courts have long recognized that the same act can lead to several wrongs and it is constitutional for distinct statutes to provide for punishment for the same act. Moreover as per practice, the police apply both sections at the stage of filing the FIR since they want to keep it broad as possible to secure a conviction. They anticipate that many of the sections which contemplate for offences may be not carried from the FIR to the framing of charges if they are not able to provide for the requisite evidence to support the legal ingredients in each section which contemplate for an offence.

The Indian Penal Code

The applicable law on pornography is contained under the Indian Penal Code, 1860 and Information Technology Act, 2000.The Indian Penal Code, 1860 under Sec. 292 prohibits the publication of pornography. I am setting it out below.

292. 1[ Sale, etc., of obscene books, etc. — 2[

(1) For the purposes of sub- section (2), 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.

(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

© 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, or

(d) advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person, or

(e) offers or attempts to do any act which is an offence under this section, 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]. 2[ Exception- This section does not extend to-

(a) any book, pamphlet, paper, writing, drawing, painting, representation or figure-

(i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern, or

(ii) which is kept or used bona fide for religious purposes;

(b) any representation sculptured, engraved, painted or otherwise represented on or in-

(i) any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958 ), or

(ii) any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose.]]

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Go Sperm Go by Mayu Shimizu under a CC BY-NC-SA 2.0[/caption]

The Information Technology Act, 2000

Before we get into the interpretation of Section 292, it is also relevant to look at the specific laws which are also contained under the Information Technology Act, 2000. The Information Technology by way of Section 67 prohibits the publication and transmission of obscene material and Section 67A specifically prohibits the same for content containing a sexually explicit act, i.e. pornography. Section 67 adopts a similar test to Section 292 making the necessary changes so it applies most directly to the internet, it states that:

67. Punishment for publishing or transmitting obscene material in electronic form. — Whoever publishes or transmits or causes to be published or transmitted 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 three years and with fine which may extend to five lakh 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 ten lakh rupees.

Here even though pornography is treated by the law to be an aggravated form of obscenity, the legislature in its wisdom has provided a distinct offence for it under Section 67A of the Information Technology Act, 2000. It provides that:

S. 67A. Punishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form. — Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct 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 ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.

There is section 67B which also provides for a punishment for creating, publishing and distributing pedophlia. We are purposely not commenting on that since it is outside the ambit of the present post. In Part 2 I will discuss how it applies to Downloaders, Uploaders and Linkers.