(This is a guest post by Arti Gupta.)
In September, 2018, the High Court of Uttarakhand in In Re v. State of Uttarakhand held that the order of the Department of Telecommunication, notified on 31st July, 2015, asking Internet Service Providers (ISPs) to disable 857 websites hoarding pornographic content, be strictly complied with. This decision draws our attention on two counts. First, the Department itself had modified its order in August, 2015 and limited the applicability of the order to websites having child pornography, but the High Court completely overlooked this. Second, the Court insufficiently relied on Section 79(3)(b) of the Information Technology Act, 2000.
Section 79(3)(b) states that an intermediary shall be liable for third party content if despite knowing or being notified by the appropriate Government or its agency that “any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act”, it does not cut off or disable access to that information. In essence, if an intermediary is aware that an unlawful act is being done through it but does nothing to curb it, it shall be liable. The High Court relied on Shreya Singhal v. Union of India to justify the invocation of s. 79(3)(b) when “unlawful acts relatable to Article 19(2)” (Paragraph 13) are being committed. The invocation of s. 79(3)(b) here is not fully justified because the judgment does not clarify what this unlawful act is, which is being committed. Is it the unlawful act of watching pornography, uploading of pornographic content or running a pornographic website? The Court leaves this question unanswered (another classic example of what has recently been called a “lazy reasoning”). Had the Court actually probed into the statute books to justify its order, the answer to what this unlawful offence is would have been found in s. 67A of the IT Act. Section 67A most closely mentions the offence under which the ban could have been justified. Now, the claim is not that the judgment would have been fully validated had s. 67A been relied upon. On the contrary, in this essay, I shall argue that even if the Court had relied on s. 67A, any ban on pornographic websites under it would be invalid.
Section 67A makes publishing or transmitting or causing publication or transmission of any electronic material containing a “sexually explicit act or conduct” as punishable. In Jaykumar Bhagwanrao Gore v. State of Maharashtra, the Bombay High Court, lucidly interpreting the Section, said that s. 67A goes one step ahead of s. 67 of the IT Act. Notably, s. 67 punishes publication or transmission of any electronic material which is “lascivious or appeals to the prurient interest.” On the other hand, s. 67A extends to any electronic material which is not only lascivious or appealing to the prurient interest, but also portrays a sexually explicit act or conduct. The Court in Jaykumar defined “explicit” under the Section as “describing or representing sexual activity in a direct and detailed way” (Paragraph 9). The activity can be bilateral (Court’s prudish way of referring to intercourse) or unilateral (Court’s prudish way of referring to masturbation). To make it clearer, regular image of a penis can be lascivious or appealing to prurient interest and covered under s. 67, while an image of an erected hand-held penis is covered under s. 67A because first, it is lascivious or appealing to the prurient interest, and second, it shows a unilateral sexually explicit activity.
Subsequently, it is necessary to ascertain what it actually means for something to be lascivious or appealing to prurient interest. For this purpose, we must refer to s. 292(1) of the India Penal Code because it is similar to s. 67 of the IT Act in its phrasing and underlying purpose. Lasciviousness or appeal to prurient interest amounts to obscenity under s. 292(1) and the test for obscenity is the community standards test, as propounded in Aveek Sarkar: “The picture should be suggestive of deprave mind and designed to excite sexual passion in persons who are likely to see it, which will depend on the particular posture and the background in which the nude/semi-nude woman is depicted.”(Paragraph 24)
It has been argued in Offend, Shock, or Disturb that Aveek Sarkar, despite coming up with a new test of obscenity, is similar to Ranjit Udeshi in being a case of moral paternalism. The case upholds the idea that State can compel people to live morally better lives by forbidding or prohibiting certain activities. And at the heart of this prohibition lie “community standards” and “community tolerance”. This means that whether or not something is obscene (a moral question), and requiring prohibition, will be determined on the basis of the “point of view of an average person” (Aveek, Paragraph 21) by applying extant community standards. It won’t be far-fetched to conclude that an average person’s point of view will be in conformance with the moral convictions of the society’s majority. It is the latter that is representative of contemporary community standards.
In the light of the above, if we analyse content available on pornographic websites, some conclusions can be drawn. The content contains unilateral or bilateral sexual activities, complying with the first prong of s. 67A. It is created with the intention of exciting sexual passions in persons likely to see it. Hence, it can be regarded as lascivious or appealing to prurient interest, complying with the second prong of s. 67A. Therefore, such content clearly comes within the ambit of s. 67A and restrictions under the Section apply to it. Taking the line of reasoning forward, regulation of pornographic content under s. 67A will be valid if society’s moral convictions regard such content as obscene.
Such a regulation is problematic because it is in contravention to what Ronald Dworkin calls the right to moral independence. The right to moral independence stipulates that people have a right not to face any disadvantages in the freedoms permitted to them solely on the reasoning that fellow-citizens consider a particular way of leading life as ignoble. In the context of the law on pornography, this right is violated when a justification for regulation is that the majority in a society believes that the attitudes about sex fostered in pornography are degrading or inappropriate for dignified human beings, and that those who do savour pornography have worse character on that count. Accordingly, s. 67A violates the right to moral independence because, as concluded above, regulation of pornography under the section is legitimate if society’s moral convictions regard pornography as obscene.
At this point it may be asked, why should this abstract right to moral independence be given any recognition? This right demands recognition by virtue of the case of Khushboo v. Kanniammal. The Court held that the purpose of freedom is to enable people to protect unpopular opinions, to go against existing social mores, to defy moral convictions that a large part of the society holds. However, an argument that has been raised before is that perhaps there is a difference between an actress expressing an unconventional opinion on pre-marital sex (as had been done in Khushboo) and a pornographic film. Notably, the reason for protecting the expression of an opinion in Khushboo was that “In the long run, such communication prompts a dialogue within society wherein people can choose to either defend or question the existing social mores. It is difficult to appreciate the claim that the statements published as part of the survey were in the nature of obscene communications.” (Paragraph 18) Here, a reference is being made to the social value of the opinion that is making the Court protect it. If we follow the reasoning, it can be said that something cannot be restricted as obscene when it has a modicum of social value. Therefore, a distinction between an uncontroversial opinion and a pornographic film can be that unlike the former, pornography does not fall within the ambit of protection because it doesn’t foster something socially valuable.
However, this argument does not seem to be in conformity with the Court’s intention in Aveek (which came after Khushboo). If the intention of the Court was to consider the social value of something before conferring protection, it would have done that while deciding Aveek, by adopting the second prong of the Roth test itself. The second prong requires the work in question to be devoid of any social value before it can be restricted as obscene. If the Court overtly adopted the first prong of the test to induct community standards into the jurisprudence, the non-induction of the second prong could not have been a result of mere ignorance or a failure to notice. It could only be a reflection of the judiciary’s intention to not give heed to it. Therefore, no distinction can be drawn between the protection given in Khushboo and the protection that can be given to a pornographic film.
So, does it follow that pornography should be left absolutely unrestricted? The right to moral independence, nevertheless, allows restrictions on pornography. However, it is imperative that these restrictions are not based on reasons backed by moral preferences, but are a result of different sort of motives. Dworkin writes:
“Many people do not like to encounter genital displays on the way to the grocer. This taste is not, nor does it necessarily reflect, any adverse view of the character of those who do not mind such encounters. Someone who would not like to find pornography in his ordinary paths may not even object to finding it elsewhere. He may find or believe, for example, that his own delight in other peoples’ bodies is lessened or made less sharp and special if nakedness becomes too familiar to him. Or that sex will come to be different and less valuable for him if he is too often or too forcefully reminded that it has different, more commercial or more sadistic, meaning for others.”
Restrictions can also be imposed if it is found that pornography significantly increases the dangers of crimes (e.g., sexual exploitation of children through child pornography). The crux of the matter is that these motives have nothing to do with how others ought to lead their lives or that people who savour pornography have a worse character on that count. These motives relate to the kinds of sexual experiences people want for themselves, or to the belief that watching pornography triggers crimes, etc., all of which have nothing to do with moral preferences. Hence, the moral backing of s. 67A goes against even the restrictions permitted by the right of moral independence.
Under the right to moral independence, therefore, no regulation under s. 67A is permissible to the extent that it finds its authority solely in the moral backing of the community standards.
In Re v. State of Uttarakhand: Reflecting on a Flawed Reasoning
However, even if certain restrictions on pornography are permitted, the order of the Court in In Re v. State of Uttarakhand remains outside the gamut of these permissible restrictions. To reiterate, these restrictions are warranted on account of the fact that some people are not fond of genitals displayed on their way to work, or that sex becomes less pleasurable to them when they encounter it frequently in the public. None of these entail any moral reasons and do not lead to conclusions that those who do enjoy such things are immoral on that count. Interestingly, Joel Fienberg’s “offence thesis” endorses the restrictions permitted by the right of moral independence and, hence, can be relied upon. The thesis argues that curtailment of public presentation of pornography cannot be justified just because people find it immoral, but can be justified if it is a cause of offensive nuisance to some people (like encountering coprophagia in public, or encountering displays of genitals on the way to work). The need to safeguard people from offensive, irritating and annoying experiences is a well-founded reason for regulation.
It should, however, be noted that the existence of an offensive thing in itself does not automatically warrant regulation. What needs to be established is that in order to escape the offensive thing, unreasonable inconvenience will be caused to the party trying to avoid such a conduct. As explained by Bakan, if a pornographic billboard is set up in the middle of Connaught Place, a densely populated area, it will attract the offence thesis as people will be compelled to look at it unless they undertake the unreasonable inconvenience of changing their place of residence. On the other hand, a widely available copy of Playboy with pornographic images in its middle fold pages would not fall within the ambit of offence principle as people can, without any unreasonable inconvenience, avoid looking at it by choosing not to buy it.
The offence thesis, by that analogy, strikes at s. 67A of the IT Act. The Section has the effect of prohibiting the publication or transmission of pornography for it amounts to sexually-explicit act or conduct. Such a provision does not follow the offence thesis as, despite the creation, publication and transmission of pornography on websites created for such purposes, people can choose not to indulge in the consumption of porn. This can be done by actively refraining from visiting any such websites, like one can refrain from buying Playboy. The mere existence of such websites and the sharing of pornographic content on them cannot be considered offensive because no unreasonable inconvenience is being caused in avoiding such websites. However, uploading of such content on a widely used social media platform not meant for the sharing of pornography would attract the offence thesis as people using that platform will inadvertently see pornography despite not wanting to do so. Under such circumstances, they would have to undertake the unreasonable inconvenience of not using that platform for all other purposes just to avoid encountering pornographic content.
The validity of the s. 67A is further weakened by the absence of any prohibition on the watching and storing of pornographic material, as the Section only punishes publication and transmission of sexually explicit material. Now, if people involved in the creation and distribution of pornography are mentally competent to give consent and do give consent to be a part of such creation, there is no reason to distinguish between pornography published by a foreigner on the website and pornography published by an Indian on the same website in India. In both the circumstances, any person in India would still be able to legally download it, watch it and store it. Therefore, the reasoning underlying the judgment- that banning porn sites will prevent people from watching pornography and committing crimes- is evidently flawed.
To conclude, the decision in In Re v. State of Uttarakhand reinstating ban on porn websites is just one in an array of insufficiently reasoned judgments. Further, analyzed on the touchstone of the right to moral independence and the offence thesis, the ban on porn sites finds no support. The question, however, remains: will the judiciary, at some point, overturn the Uttarakhand High Court’s judgment?