Pornography Laws

Pornography Laws

There is no definition of pornography in any Indian statute. On the other hand, pornography refers to indecent photography or videography. In other words, pornographic content is subtly referred to as “obscene material.” “A paper, book, pamphlet, drawing, writing, figure, painting, or any other object to be deemed as obscene if it is appeals or lascivious prurient interest or its affect,” according to Section 292 of the Indian Penal Code. Before delving into the details, let’s examine the Supreme Court of India’s position on pornography.

In an attempt to define pornography, consider what the Supreme Court considers obscene:

The court initially supported an obscenity test based on Chief Justice Cockburn’s guidelines in the 1965 case of Ranjit D. Udeshi v. State of Maharashtra, which assessed whether a piece of content could negatively affect individuals who were exposed to it. The court ultimately rejected the Hicklin test and accepted the Standard Community Test in the 2006 case of Director General, Directorate General of Doordarshan v. Anand Patwardhan. Current societal norms and if the content catered to minor sensory pleasures were the basis for this new definition of obscenity. In the 2014 case of Aveek Sarkar v. State of West Bengal, the court deviated further from the Hicklin test by considering background and context, especially if it disparaged the modesty of the person being portrayed.

Understanding Pornography and Indian Laws

Certain sexually explicit, vulgar, or pornographic images that “tend to deprave and corrupt humans” or “lascivious or appeal to the prurient desire” are prohibited by Indian law. Whether certain acts are permitted, illegal, or penalized depends on the particulars and requirements of the following laws:

Although these laws describe the actions and situations that lead to punishment, they do not define “pornography” or “obscenity” in a clear and precise manner. It can be challenging to assess whether a person’s actions, such as the possession, production, or distribution of pornographic content, are illegal because not all pornographic content is obscene and is consequently subject to different, or typically no, consequences. As society and thought have changed over time, so too have the subjective meanings of the two terms. The way that the term “sexually explicit” is employed has an impact on the type of punishment that is administered to offenders as well.

Indian Penal Code (IPC)

The provisions of the IPC define the punishment meted out to an individual for activities related to a work or material that meets the Community Standard Test criteria for being obscene. Depending on the specific circumstances and criteria outlined in the applicable regulations, these penal acts can be divided into the following categories:

a) The sale, rental, distribution, display, and circulation of pornographic items

Any act that constitutes the sale, distribution, exhibition, and circulation of pornographic objects, as well as any transaction in which one person hires another to do so, is punishable under Section 292 of the IPC. Examples of such acts include: Any obscene object, including books, pamphlets, papers, writing, drawings, paintings, representations, figures.

b) Obscene Object Production, Possession, Trade, Business, and Advertising

Section 292 of the IPC further penalizes anybody who engages in any of the following activities in connection with the sale, hiring, distribution, display, and circulation of the obscene objects listed above:

Creates, manufactures, or owns such pornographic items.
Transports, imports, or exports any pornographic material.
Shares in or is paid for any business that makes, buys, retains, imports, sells, transports, displays, or distributes such pornographic items.
Promotes or informs that someone is committing or is prepared to commit any of the aforementioned crimes, or that someone can obtain the pornographic items.
Attempts or offers to perform any of the aforementioned actions.

Criminal Punishment Under Section 292:

Section 292 stipulates the following penalties for each of the offenses listed under it:

On a first conviction, there is a maximum penalty of two years in prison and a fine of INR 2,000.
A second or subsequent conviction carries a maximum sentence of five years in prison and a fine of up to INR 5,000.

c) Selling, renting, distributing, displaying, and circulating pornographic items to individuals under the age of twenty

Similar to Section 292 of the IPC, Section 293 of the IPC punishes any act that amounts to:

selling, giving away, displaying, and circulating pornographic items to anyone younger than twenty,
A transaction in which an individual permits a person under the age of twenty to hire pornographic items,
A proposal or effort to do any of the aforementioned.

According to Section 293, punishment:

Compared to Section 292, Section 293 carries a somewhat harsher penalty. Section 293 stipulates the following penalties for each of the offenses listed under it:

On a first conviction, there is a maximum sentence of three years in prison and a fine of up to INR 2,000.
A second or subsequent conviction carries a maximum sentence of seven years in jail and a fine of up to INR 5,000.

d) Displaying pornography against a woman’s wishes

Section 354A of the IPC expressly punishes a man who displays a woman any kind of pornographic material against her will with a year in prison, a fine, or both. In contrast, Sections 292, 293, and 294 are gender neutral. Notably, Section 354A expressly refers to “pornographic material” rather than “obscene material.” Therefore, it suggests that even if the content a woman is exposed to does not meet the criteria for being considered obscene according to the Community Standard Test, it would still be illegal to show her such information without her will.

Information Technology (IT) Act, 2000

The IT Act criminalizes activities pertaining to pornographic and obscene material that exists in electronic form, whereas the IPC criminalizes acts pertaining to such material that exists in aural, printed, published, and gestural form.

a) Uploading or sending pornographic or sexually explicit content in an electronic format

Any obscene material that “is lascivious or appeals to the prurient interest” or “tends to deprave and corrupt persons” who read, see, or hear the matter contained or embodied in it is illegal to publish, transmit, or cause to be published or transmitted in electronic form, according to Section 67 of the IT Act. Such behavior is penalized by:

On a first conviction, there is a maximum sentence of five years in prison and a fine of INR one lakh.
A second or subsequent conviction carries a maximum sentence of ten years in prison and a fine of INR two lakh.

Furthermore, it is illegal to publish or transmit any content that includes sexually explicit activities or conducts, according to Section 67A of the IT Act. Such behavior is penalized by:

A first conviction carries a maximum sentence of five years in prison and a fine of INR 10 lakh.
A second or subsequent conviction carries a maximum sentence of seven years in jail and a fine of INR 10 lakh.

b) Showing children engaging in sexually explicit behavior

Children under the age of eighteen are expressly covered by Section 67B of the IT Act, which makes any behavior that fits into any of the following categories illegal:

publication and distribution of electronic content that shows children engaging in sexually explicit behavior.
Producing, gathering, looking for, perusing, downloading, promoting, advertising, trading, or disseminating any electronic content that shows children in a pornographic, indecent, or sexually explicit way.
Engaging in sexually explicit behavior or behavior that would offend a reasonable adult by encouraging, luring, or coercing children into an online relationship with other children.
Enabling the mistreatment of minors online.
Recording oneself or another person abusing minors in relation to sexually explicit acts.

Such actions are punished:

A first conviction carries a maximum sentence of five years in prison and a fine of INR 10 lakh.
A second or subsequent conviction carries a maximum sentence of seven years in jail and a fine of INR 10 lakh.

c) Privacy Violation

Any anyone who knowingly and willfully takes, publishes, or transmits an image of someone else’s private region—such as their pubic area, genitalia, breasts, or buttocks—without that person’s consent is also criminally charged under Section 66E of the IT Act. A punishment of up to INR 2 lakh, three years in prison, or both may be imposed for violating someone’s privacy under Section 66E.

Protection of Children from Sexual Offences (POCSO) Act, 2012

In addition to the IT Act, using a kid for sex is illegal under Sections 13, 14, and 15 of the POCSO Act. The POCSO Act in India, like in the US, provides no safeguard against the use of minors for pornographic purposes. Even if the pornographic work or information pertaining to a child does not meet the Community Standard Test’s definition of “obscene,” the use of the term “pornography” in the pertinent laws suggests that anyone involved in child pornography faces consequences.

Section 13 states that using a youngster for sex entails the following:

lllustration of the child’s genital organs;
Use of a minor doing simulated or actual sexual actions (with or without penetration);
Vulgar or indecent depiction of a child.

POCSO Act Punishments include:

1) The following Punishments apply when a youngster is used for pornographic purposes:

A fine upon first conviction and a minimum sentence of five years in prison.
On a second or subsequent conviction, the sentence will be at least seven years in jail and a fine.

2) The storage and possession of pornographic material involving a minor with the aim to share or transmit it, is punishable.

A fine of at least INR 5,000 for a first offense, and
A fine of at least INR 10,000 for a second offense.

3) Possession and storage of child-related pornographic material with the intent to transmit, propagate, show, or distribute it is punished by up to three years in prison, a fine, or both.

4) The following punishable apply to the possession and storage of child-related pornographic material for commercial purposes:

Imprisonment for a term not less than three years and extending up to five years, or with fine, or both on first conviction.
On the second or subsequent conviction, the penalty is imprisonment for at least five years and up to seven years, as well as a fine.

Indecent Representation of Women (Prohibition) Act, 1986

Sections 3 and 4 of the IRWA make it illegal for any individual or organization to create, publish, sell, hire, distribute, circulate, exhibit, advertise, or mail any of the following pornographic materials that depict women in an indecent manner: book, leaflet, paper, slide, movie, text, illustration, painting, picture, representation, or figure.

In accordance with the IRWA:

Any individual who engages in any of the actions forbidden by Sections 3 and 4 of the IRWA, or in the case of a corporation, members in control of or accountable to the company, faces the following penalties:

On a first conviction, there is a maximum penalty of two years in prison and a fine of up to INR 2,000.
A fine of at least INR 10,000 and up to INR 1,00,000 for a second or subsequent conviction, as well as a minimum sentence of six months in jail and a maximum sentence of five years.