Drashti Thakkar

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The debate surrounding porn in this decade has developed into a multi dimensional discourse with various ideological groups taking up various ideological stands. The debate, if I may over simplify, basically consists of a for/against campaign in regard to porn. As this debate adopts a dimension of depth, the question of porn starts to occupy an awkward space in ethical battles. This is mainly because most points of debate run deeper than the battle over pornography which makes it impossible to arrive at a conclusive ideology. The arguments against pornography mainly centre around the aspect of patriarchy and more specifically, subjugation of women by exploiting them for sexual pleasure and commercial gain. To counter this, there exists an argument proposed by pornographic actors like Stoya and James Deen and many unknown set of actors. They consider themselves as sex positive feminists. They have stressed that not only do they feel that they arent exploited, but their sexually expressive performances help them break traditional patriarchal ideas of what is referred to as lady-like conduct. As we step out of the discussion of pornography in terms of an exclusively heterosexual discourse, the LGBT community, particularly the gay community, tend to be propornography. They have embraced porn as a means of expression as well as resistance against societys hetero-based moral standards, thus defeating the argument of porn as a tool to subjugate women. The main difference between the arguments is that sex positivist feminist of every kind do not wish to silence the anti-pornography feminists. They wish for a debate and not a censorship. For them prevention of exploitation (which they acknowledge happens to sexual minorities as well as to women) is a cause worth fighting for, the censoring of porn, which to many is a tool of liberation, however, is not. On April 5, 2013, in response to a PIL filed by Indore based advocate, Kamlesh Vaswani, SC sent notices to three Union Ministries (Ministry of home affairs, information technology and information and broadcasting, besides the Internet Service Providers Association of India) seeking their responses on banning pornography online. On July 12, the apex court had granted four weeks time to the Centre to devise a mechanism to block such sites. Following this, Advocate Vijay Panjwani, appearing for Vaswani submitted that the Centre has failed to devise any mechanism to block the Internet sites. On august 4, the apex court made it clear that the government will have to take steps to block porn sites particularly those showing child pornography and granted four weeks time to chart out a suitable plan of action. The petition alleged that over 20 crore porn videos or clippings are freely available in the market, which are directly being downloaded through Internet or video CDs. It calls for a criminalisation of the viewing of porn stating that the easy availability of online porn is a leading cause of the rape cases we see today. This connection is compounded by a recent

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incident in the capital where a five-year-old girl was allegedly raped by two men and left to die. According to media reports, the accused had watched porn on their mobile phones minutes before the crime. Mr. Vaswani applies the simple-minded logic(al fallay): Post hoc ergo propter hoc, Latin for "after this, therefore because of this and files a public interest litigation. Now most of the demands put forward by the PIL are already covered under existing laws: the production and distribution of any obscene material including online pornography is a punishable offence under Sections 292 of the Indian Penal Code and Sections 67 and 66E of the Information Technology Act. Criminalising of viewers is the only additional demand the PIL proposes. This is problematic on many levels. Lets start with the definition. Indian laws do not have any definition for pornography, most porn related cases are scrutinised through obscenity laws or laws related to exploitation of women and children, depending on the nature of the case. Steven Spielberg is known to have famously said that the only difference between porn and erotica is the lighting. Mr. Justice Stewart of the US Supreme Court in Jacobellis v. Ohio 378 U.S. 184 (1964) defined obscenity as, I will know it when I see it. Then there is the Hicklin test that instructs that the court should not determine obscenity on the basis of specific fixed characteristics in the material itself, such as nudity or explicitness but on how these characteristics are placed within the material and into whose hands such material might fall. All this seems to become increasingly subjective and the decision of whether something is obscene or not, falls into the hands of the judiciary. Why could this be problem? It becomes clear when one looks at how the judiciary has dealt with cases related to porn in the past. The DPS MMS case for eg. Here it was difficult for the court to criminalise anyone for the leakage of the tapes. the girl in the clip could not be punished, as it is statutory rape, and she has already been rendered a cultural outcast. In response to the boys culpability who is indeed the producer of the clip, a stranger argument was proposed that in our fast urbanizing societies where parents dont have time for children, they buy off their love by giving them gadgets which makes possible certain kind of technological

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conditions... thus the blame if it is on the boy, is on the larger society.1 With regard to the IIT (Indian Institute of Technology) student who put the clip up for auction on Bazee, there was no possession established and only an intention of auctioning, also no one pursued a case against him. This left the court with only Avnish Bajaj to be prosecuted. He simply ran an auction website and had no real control over what people used it for and yet the he bore the brunt for the harm the MMS had caused. The judiciary delivers a proxy criminal in reponse to public outrage instead of trying to understand the complex processes at play. This is similar to what is happening in response to Vaswanis PIL now. The laws in India related to porn are: Possession or watching of pornographic materials is completely legal, but distribution is prohibited. Section 67 of the Information Technology Act deals with "obscene information in electronic form". Section 67B was inserted later, which criminalises downloading, publishing child porn. In 2010, Bombay High Court ruled that watching porn in private is legal In June 2009 the cartoon-porn site Savita Bhabhi was blocked (even as other porn sites continued to exist) under provisions of the newly amended IT Act (2008) that makes the publishing and dissemination of obscene material punishable. More recently, information on sex on Microsofts search engine Bing as well as the Yahoo search engine and Flickr photo-sharing site in India, has been blocked. What is needed is a healthy debate that encourages the government and judiciary to look at porn in more than one way and trains them to deal with it in an unabashed manner.

Interview with Nishant Shah on 1st August 2010. Available online at http://pad.ma