THE PORNOGRAPHY DEBATE IN THE INDIAN SETTING: INDIVIDUAL LIBERTY V. PUBLIC MORALITY By- Calvert Nazareth & Sneha Nagarajan
THE PORNOGRAPHY
DEBATE
IN THE INDIAN
SETTING:
INDIVIDUAL LIBERTY
V. PUBLIC MORALITY
Authored
By- Calvert Nazareth
Student
– School of Law
CHRIST
(Deemed to be University), Bangalore
+91
73495 33337
Co-Authored
By- Sneha Nagarajan
Student
– School of Law
CHRIST (Deemed to be University), Bangalore
+91
99729 07333
Sex
is considered to be taboo in India. Despite great strides being taken to raise
awareness about pertinent themes such as sex education, it is still considered
an aspect of ethics. Due to this notion, there exists a lot of controversy
surrounding the subject matter of pornography. In the status quo, the
manufacture and selling of pornography are prohibited by the laws of India.
This is due to the fact that sexually explicit content like pornography is
viewed to be a hurdle in ensuring public morality and decency. Furthermore,
they depict women in a shameful manner. The moral dilemma of banning
pornography to ensure greater societal good is a talking point. The laws
prohibiting pornography can also be viewed as violative of an individual’s
right to free speech and privacy, as enshrined by the Indian Constitution. The
laws governing pornography are very ambiguous in theory. There is a lack of
clarity on the meaning of relevant words like ‘morality’, ‘decency’, and
‘obscenity’. This allows the Court to decide on cases involving issues of
pornography arbitrarily. This article tries to analyse the disputed grey areas
of pornography, such as its definition, legalisation, implementation and
diverse perspectives. The authors have attempted to analyse the lacuna in
Indian pornography laws to establish a more precise understanding through this
article.
Keywords: Pornography,
individual freedom, public morality, obscenity, sexual exploitation of women,
pornography debate
STATEMENT
OF PROBLEM
The
legalisation of pornography is arguably a highly debated issue. The liberal
perspective states that pornography should not be banned for the exact purpose
of protecting free speech and expression as well as the right of privacy of
consenting individuals. Furthermore, pornography safeguards the sexual autonomy
of an individual. Conservatives and Feminists differ with this view. Their main
objection is the interference of pornography with the sound standards of polite
society. They also argue that pornography shows women in a humiliating manner.
This difference in opinion has led to an intense debate. In a jurisdiction like
India, it is important to establish a clearer understanding of the
jurisprudential status of pornography. No law directly speaks about
pornography. However, the Indian Constitution, The Indian Penal Code and the
Indecent Representation of Women (Prohibition) Act makes indirect references to
it. In cases dealing with pornography, words like ‘morality’, ‘decency’, and
‘obscenity’ are brought to the foray. However, these words are subjective and
do not have a clear definition. Their meanings are often sought from already
established age old judgements that do not cater to the current contemporary
society. In this regard, Indian laws are lacking. Due to this, the burden is on
the Court to decide prudently on cases related to pornography. It is important
to clearly define and draw a line between free speech and public morality or
decency with respect to pornography.
RESEARCH
METHODOLOGY
The
research methodology adopted by the researcher is a doctrinal and analytical
form of research. This methodology was employed in order to analyse the current
status of pornography in Indian law and to understand the arguments put
forwards by the supporters and opposers of pornography. Throughout the course
of the research, the researcher has referred to both primary and secondary
sources of information such as legislations, case laws, rules, books, articles,
research papers and websites. The keywords used by the researcher to source
reading material include:
1.
Meaning of Pornography
2.
Understanding the viewpoints to
pornography
3.
The Pornography Debate
4.
Pornography in Indian Law
5.
Individual Freedom and Pornography
6.
Morality, Decency and Obscenity and
Pornography
INTRODUCTION
Pornography
and obscenity raise difficult questions of jurisprudence. Each of these topics
involves a complex debate with a mixture of questions and philosophies. On one
hand, pornography can be viewed through a liberal lens, in which individual freedom
supersedes all others. As John Stuart Mill states that the role of law must be
confined to preventing harm to any person. Unless it can be proved that
pornography causes harm to another, it should not be bound by legal
restrictions. This argument is not accepted by those on the other end of the
spectrum. Their primary concern is the disruption of public morality.
Furthermore, feminists argue that the porn industry is discriminatory towards
women. Though women are shown to ostensibly take part in the industry, the
ground reality is very different. Most porn videos show women in a dehumanised
and demeaning manner, submissive to her male counterpart. The pornographic
industry is also largely run by capitalistic men who work for their own
profits. These individuals maintain a hierarchy of power in their industry
which results in women being denied equality and being objectified in the eyes
of the society. This article seeks to analyse the debate of pornography and its
legalisation with reference to the Constitution of India. The paper is divided
into four parts – (i) defining pornography; (ii) understanding the pornography
debate; (iii) assessing pornography with reference
to the Constitution of India and related case laws; and (iv) concluding
remarks.
I.
DEFINING PORNOGRAPHY
Before
we debate the legalisation of pornography, it is important to understand its
meaning. Pornography is a self-defining concept but the fact that it is linked
to sexual pleasure or arousal makes it a subjective term. It is difficult to
determine what constitutes pornography. To understand this better consider the
following situations. If a director of a movie chooses to show his actors nude
for 20 seconds, will it constitute pornography? Or will a picture of a child
fully clothed, yet arousing a paedophile be considered porn? Or yet, can
parents be made liable for making pornographic material if they have pictures
of their child naked?
The
word pornography is derived from two words. The first root word is ‘porno’
which means prostitution or female captivity or whores[1].
This is proof enough that the word pornography does not seek to encompass
consensual sex or mutual love. Instead, it refers to the total domination and
sexual violence against women. The second root word is ‘graphos’ which means to
write about. Here too, we notice the connotation of the word to the
objectification of women and voyeurism.[2]
Compare this with erotica which comes from ‘eros’ meaning passionate and
intimate love. Erotica allows for free will, positive choice and genuine love.[3]
In
contemporary society, with its advanced technology, the types and methods of
publishing pornographic content have drastically increased, reaching beyond the
scope of the traditional ‘graphos’. Yet, the content, meaning, depiction of
women’s sexuality and their value remain the same.
It
is evident from the above explanation that pornography refers to what is wrong
with it – the portrayal of women in a degrading manner. This definition has been
widened to include other vulnerable groups like children.
II.
UNDERSTANDING THE
PORNOGRAPHY
DEBATE
The
debate surrounding pornography involves three main stakeholders – liberals,
conservatives and feminists. While conservatives and feminists hold the same notions
about pornography, their reasoning largely differs.
Traditional
conservatives argue for the complete ban on pornography. According to them,
pornography refers to any sexually explicit material which is obscene.
Conservatives justify the State’s interventions in and complete ban of
pornography as necessary because it disrupts the standards of a polite society
that has evolved over time. This view is referred to as legal moralism.[4]
This group also maintains that non-procreative sexual intercourse as shown in
pornographic videos corrupts its viewers. Conservatives believe in the
philosophy of legal paternalism, by which the State has the power to curb the
freedom of duly consenting adults for their own good.[5]
The contention of conservatives and right-wing extremists is based on religious
values where sexuality, especially female sexuality is completely hidden.
Unlike
moral conservatives who believe that pornography should be banned due to its
immoral and indecent nature, feminists, especially radical feminists hold a
different point of view. They argue that pornography is inherently built on the
oppression and harassment of women. The message of pornography influences the
way in which its viewers treat women. According to feminists, pornography is
built on a double faceted mechanism – one that works to portray women in a
submissive manner and another that seeks to further violence against women. As
feminism is built on the ideals of equity and collaboration among all genders,
feminists believe that pornography does not help in furthering this objective
in any way.
While
conservatives and feminists argue that pornography should be banned on their
respective grounds, liberals believe that it should be met with the least
sanctions and regulation. According to liberals, an individual’s freedom cannot
be compromised at any cost unless it is causing harm to their person. They
frown upon the intervention of the State and relegate its duty to merely
maintain a welfare society. Liberals defend pornography by employing a
threefold reasoning based on the philosophy of liberal scholar John Stuart
Mill. Firstly, a ban on pornography violates the freedom of speech and
expression of consenting adults. They believe that free speech or actions
cannot be restricted even if the second person finds it offensive, vulgar or
disagreeable. Free speech and expression mean that there should not be
censorship or rule that directs the manner in which people ought to speak,
think or express themselves. These restrictions can be brought to play only if
there is harm to any individual. Yet, it should be the last recourse to
preventing harm resulting from free speech. Secondly, liberals argue that an
interference of the State in pornography violates the freedom of privacy of
adults. Privacy or moral independence as referred to by them protects the
rights of an individual to explore his interests and sexuality in private
without being afraid of any threat, coercion or deterrence from the State.
Lastly, neither the production nor distribution of pornographic content causes
harm to anyone.[6] It
is built on a system of voluntary consent, i.e., the adult actor’s consent to
being filmed and the viewer’s consent to consume such content. It is not the
duty of the State to interfere in a process that is self-regulating. It is
pertinent to note here that not all liberals share this same view. Many
liberals like Ronald Dworkin believe that pornography is wrongfully being
justified on the grounds of removal of censorship that should only be
restricted to political and social dissent.[7]
Though
it has been stated earlier that many feminists denounce pornography, there are
a few that actually support it. This group of feminists believe that
pornography allows a woman to explore her sexuality and enhance her right to
sexual autonomy. Furthermore, it allows them to break the shackles of societal
standards set by moral conservatives about the secrecy of women’s sexuality.
Each
of the arguments presented above is justified in its own sense. The pornography
debate is largely argued by individuals on either side of the political
spectrum. Feminists hold differing views – some support pornography, while some
outrightly oppose it. For one thing, it is clear that if pornography were
completely banned, there would be no space for such philosophical and political
discourse.
III.
ASSESSING PORNOGRAPHY WITH REFERENCE TO THE CONSTITUTION OF INDIA AND RELATED CASE LAWS
Article
19(2) of the Indian Constitution deals with obscenity. This Article lays down
that the State has the power to reasonably restrict free speech and expression
on the grounds of public morality and decency.[8]
There exists a fine line between the two. In the case of Ranjit D. Udeshi v.
State of Maharashtra[9],
the Court answered the question on the clash between free speech and reasonable
restrictions to it. It noted that the essence of democracy is free speech;
however, it can be exercised only while criticising the political or social set
up of the country or to further human intellect. Therefore, the Court upheld Section
292 of the Indian Penal Code[10]
as it fits correctly within the restrictions provided to free speech under
Article 19(2). The principle set down, in this case, was also noted in the case
of Chandrakant Kalyandas Kakodkar v. State of
Maharashtra.[11]
Unfortunately,
in India, the legislature, as well as the judiciary, have not successfully
explained how the consumption of porn in private is against public morality or
decency. The State’s action against pornography in India seems to stem from the
reaction to the harm principle[12].
However, the State has not clearly established how pornography which involves
consenting adults performing sexual acts in private harms another. Furthermore,
the State has not provided an understanding of the immorality of sexual freedom
and expression. As has been previously stated, pornography can have positive
contributions as it can be a means of sexual liberation. It can help in the
growth of a healthier society. By restricting it on the grounds that some
people do not like it because they find it immoral or dirty, would essentially
mean that the State is ready to compromise on the rights of many due to the uncomfortability
of a few.
Another
aspect of pornography that our Constitution has a lack thereof is an explicit
right to privacy. In the past, the Supreme Court has held that the Right to
privacy is a fundamental right that can be interpreted from Article 19(1)(a)[13]
which talks about freedom of speech and expression, Article 19(1)(d)[14]
which talks about freedom to move freely, and Article 21[15]
of the Indian Constitution which deals with the rights to life and personal
liberty. A law to privacy was developed by the Bench in the case of Govind v. State of M.P.[16]
The Supreme Court in this case opined that the privacy of an individual can be
compromised only in situations of genuine State interest. It is the duty of the
Court to assess the facts and circumstances of the case to determine whether
the privacy of an individual can be breached, as it is a guaranteed fundamental
right of the citizens.[17]
The privacy law in India was further widened in the case of Naz Foundation v. Government of National Capital Territory
of Delhi.[18]
In this case, the Court stated that the right to privacy is that right that
enables an individual to keep themselves in a realm of intimacy and autonomy in
order to develop themselves as well as their relationship with others, without
the interference of anyone else.[19]
The right to sexual freedom is a right of privacy whereby an individual can
explore his sexuality without any interference by the State or the outside
community. Disruption of the morality of a select few cannot amount to a
genuine interest of the State to violate the right to privacy. Furthermore,
there is no harm caused as only consenting adults take part or readily consume
pornographic material. By evaluating the judgements on privacy given by Courts
in India it can be said that an intervention of the State on regulating or
banning pornographic material can amount to a breach of the citizens’ fundamental
right.
One
of the key reasons for the said legislations to treat pornography as immoral
and indecent is the lack of a clear definition. Every sexually explicit
material, including pornography, erotica, child pornography, etc. are included
under the ambit of ‘obscene’. Additionally, there is no differentiation between
content that is privately or publicly consumed. This failure of the
legislatures can consequently compromise the rights of free speech and privacy
of an individual. Nowadays, pornography and obscenity are used interchangeably,
even though they mean completely different things. This begs the question – can
all kinds of pornography be considered as obscene? To label anything obscene in
the traditional sense means to criticise it as openly repulsive. Pornographic,
on the other hand, is a purely descriptive term that refers to sexually
explicit material that is intended solely and reasonably to elicit sexual
enjoyment in the viewer. Essentially, whether any specific piece of
pornography is truly obscene is a logically open subject that must be resolved
by debate rather than a definitional decree.
Due
to the lack of a definitive legislative material concerning pornography, the
onus of determining cases related to it falls on the Court. It is the duty of
the Court to determine whether pornography is intended to corrupt public morale
or is just a platform to express ideas. The Court should also draw a line
between the freedom of speech and expression and freedom of privacy of duly
consenting adult actors and the audience that consumes pornographic material
and the morals of a select few.
Many
nations like the United States of America, the United Kingdom, and Canada have
made efforts to implement progressive legislations for pornography. In the
landmark judgement of Miller v. California[20],
the Supreme Court of the United States put forth the ‘contemporary community
test’. This test enables the State to make rules and laws on obscenity
depending on the thought process of the current society. By applying this test
to the instant case, the Court noted that unless pornographic material was
being distributed to children or to non-consenting adults, the State cannot bar
sexually explicit content merely because some individuals find it obscene. The
verdict given by the Court is in line with the First[21]
and Fourteenth[22]
Amendment of the US Constitution. The ‘contemporary community test’ was adopted
by the Supreme Court of India in the case of Ajay
Goswami v. Union of India[23].
In this case, the Court took cognizance of the advanced technological
advancements and stated that the earlier tests were redundant as content from
across the globe was easily available to the citizens readily. Hence, if
society is accepting such content, then their freedom to do so must be taken
into due consideration.[24]
The
Constitution of India is a sacred text that protects the rights of Indian
citizens. It gives us an understanding of who we are as the citizens of this
country. It defines our social, political, economic and cultural surroundings.
The Constitution does not directly refer to the production and distribution of
pornographic material. It is the duty of the Court to determine the legality of
pornography on a case-to-case basis while balancing the freedom of speech and
privacy rights of some individuals on one hand and public morality and decency
on the other.
IV.
CONCLUSION
There
have been unfortunate instances in the past where obscenity has been wrongly
interpreted to curb the freedom of speech of citizens. In the Ranjit Udeshi
Case, the edition of Lady Chatterley’s Lover was banned and the appellants who
were found guilty of its sale were imprisoned. The movie Bandit Queen,
depicting the life of dacoit Phoolan Devi met with controversy and was granted
an adult certificate (A) for a single nude scene.
The
above instances have resulted from the Court’s opinion that obscene material
disrupts public morality. However, public morality is a subjective term and its
meaning is largely based on what has already been agreed upon decades ago. There
is also no clear difference between what constitutes as obscene and decent. The
Indian Penal Code and the Indecent Representation of Women (Prohibition) Act
are merely reproduced versions of age-old English laws. The rise in pornography
black material is evidence enough of the loopholes in these legislations.
The
bitter truth about pornography is that it is not the only institution promoting
gender inequality. In fact, discrimination against women is sustained by much
larger institutions and industries. Gender imbalance is deeply ingrained in the
minds of the society The reason why pornographic material is in high demand is
because it furthers this inequality, something its viewers are already
accustomed to. Prohibiting one narrowly defined category of representations
cannot overturn the complex process of gender discrimination. Moreover, there
are compelling reasons to suppose that outright prohibition would be
ineffective and even counterproductive.
We
cannot discount the fact that pornography is a serious issue threatening the
status of women in our country. However, we must also accept the grave truth
that law cannot reverse a cultural obsession with sex and gender
discrimination. Pornography will continue to exist in the status quo no matter
what. This does not mean that we sit silent. Active discussion and debate about
pornography can help us reassess our cultural values. Law should act in a
regulatory manner and construct the socially unacceptable to increase
accountability of female exploitation.
BIBLIOGRAPHY
Articles
and Research Papers
1.
John Stuart Mill: On Liberty
2.
Pornography: Men Possessing Women by
Andrea Dworkin
3.
The Problem with Pornography: A
Critical Survey of the Current Debate by Emily Jackson
4.
Feminism Unmodified: Discourses on
Life and Law (Harvard University Press)
Specific
chapter – Francis Biddle’s Sister: Pornography, Civil Rights and Speech by
Catharine MacKinnon
5.
Legal Status of Pornography In India
by Ankur Singhal
6.
Appendix: The MacKinnon/Dworkin
Pornography Ordinance
Books
1.
On Feminist Jurisprudence by Hilaire
Barnett
2.
M. P. Jain Indian Constitutional Law
3.
Take Back the Night: Women on
Pornography
4.
Statutes
1.
Constitution of India
2.
Indian Penal Code
3.
Indecent Representation of Women (Prohibition)
Act.
[1] The word ‘whore’ as the meaning of
‘porno’ was put forth by leading feminist scholar Andrea Dworkin in her work
titled ‘Pornography: Men Possessing Women’.
[2] Catharine MacKinnon & Andrea
Dworkin, “Appendix: The MacKinnon/Dworkin Pornography Ordinance” 11 William
Mitchell Law Review 119-121 (1985).
[3] Gloria Steinem, “Erotica and
Pornography: A Clear and Present Difference” Take
Back the Night: Women on Pornography 35-37 (New York: Morrow,1980).
[6] Here, the
word ‘harm’ refers to crimes of physical violence or other wrongful actions
that causes damage to the person of property of an individual.
[12] The harm
principle is a concept put forward by John Stuart Mill which states that all
actions not harming the body or property of oneself or another should not be
met with regulation.