Can pornographic content be consumed as 'erotic'?

- The word 'erotic' is not used in the law

When Raj Kundra was recently arrested in a pornography case, his lawyer said his client's films were erotic. There has been a lot of discussion about pornography laws since the case came to light. Although we have strict laws on pornography. However, there are always arguments that the content is obscene or erotic.

The Indian Penal Code (IPC) - (Indian Penal Code) provides for the prosecution of a person who commits obscene acts in public in addition to laws prohibiting the distribution, sale and circulation of obscene content. However, since it does not mention electronic and virtual content, section 6 of the IT Act in the year 2000 has made it a crime to publish, broadcast or circulate pornographic material and to collaborate in it. Sections 3 (a) and 2 (b) were amended in 2006 to prevent hard pornography or child pornography.

Regarding Section 4 of the IT Act, legal experts say that if a person makes a 'personal' (intimate) video in his bedroom, it falls under Section 4. He could face up to three years in prison for the first time and up to five years in prison for the second time. When a person is caught for the first time for publishing and broadcasting pornographic material in section 4 (a), he can be jailed for five years and for the second time, up to seven years. Similarly, as per the provision made in Section 4 (b), if a person searches or downloads child pornography, stores it or transmits it or publishes it, the sentence of imprisonment remains the same as in Section 6 (a).

However, with the advent of Article 6 of the IT Act, there was a debate on how long the law can interfere with private life or the bedroom. In this regard, the Supreme Court said that what one does in one's bedroom is part of the 'right to privacy'. The court also said that the roots of privacy include personal intimacy, marital life, marriage, fertility, home, sexual activity. The right to privacy is part of the Constitution, but it is not absolute. It will be a matter of social, moral and public interest which will be based on that case. So the rock that will be laid for him will be rational, fair and just.

It is important to understand that while the right to privacy is a fundamental right, it is limited in terms of social, moral and public interest. Watching pornography in the bedroom is not a crime. It is also not a crime to have pornographic content on someone's mobile and turn it off after opening it. But viewing such content in public becomes a crime. Similarly, if a person shoots his personal action and circulates it, it will come under the purview of the publication, and that person will be found guilty under Section 3 as well as 4 (a) of the IT Act.

But since Raj Kundra's case came up, there has been an argument that any particular content is obscene or erotic. In fact the person caught in such a case only says in his defense that the relevant content is erotic or artistic, not obscene. But the word erotic is not used in the law. The law is called pornographic content. "We cannot define obscenity," the apex court had said in the State of Maharashtra case against Ranjit Udeshi in 2012. This is an ongoing process so the issue of what is obscene and what is not will depend on the case.

The court said that if someone is shown artistically naked, with the intention of creativity and artistry, it is possible that it will not be considered obscene in the eyes of the court. But in a content, if a person engages in an activity that can be considered obscene even while wearing clothes or if the purpose is to serve obscenity, it will be considered obscene. This means that what is obscene and what is not will depend on the case.

Vaishali Thakkar