Why we run the risk of moving further away from the Constitution and towards a Taliban-esque Internet governance.

By Manish

In April this year, Kamlesh Vaswani, a lawyer from Indore, filed a Public Interest Litigation (PIL) before the Supreme Court of India. His PIL sought, among other things, to declare various sections of the Information Technology Act as unconstitutional; prepare a specific law on pornography; and treat watching of porn videos as a non-bailable and cognisable offence.

The Supreme Court admitted the petition for hearing and issued notice to the Central Government, which informed the court in July that it was difficult to block porn websites as a whole, but that it needed more time to hold consultations between various ministries on the issue.

This is where the case stands at present, but in the meantime it might be useful to take a look at the petition itself and the issues surrounding it.

The petition is problematic on multiple levels. First, banning or regulating pornography is a policy issue that should be decided by the legislative wing of the government, not the judiciary. As a matter of fact, there is another petition on the same issue (filed by a different person) pending before the Rajya Sabha Petitions Committee, which, despite its own set of problems, is arguably a better forum to agitate this sort of demand.

That apart, the petition is appallingly drafted and contains no legal arguments whatsoever. While Vaswani has approached the Supreme Court under Article 32 of the Constitution, which is a safeguard against violation of a Fundamental Right, the petition shows no such violation to have taken place.

According to Vaswani’s petition, the spread of pornography is in violation of Articles 14 (Right to Equality), 19 (Right to Freedom) and Article 21 (Right to Life) – but there’s no substantiation of any of these grounds. In fact, the grounds of argument in para 67 of the petition (which suggests three years’ imprisonment or a fine of Rs five lakhs for anyone who publishes or transmits “obscene” material in electronic form) don’t even refer to the violation of any fundamental rights.

Some of the claims made in the petition are not just unsubstantiated, but patently false (and ridiculous). For example, the petition says, "Porn videos has made Indian adults and teens as porn addicts, petitioner further submits that finding pornography on the internet is as easy as Googling the word 'sex,'" (sic).

I decided to test this by Googling the word 'sex' (while logged in to my Google account).

The top results were in this order: ads for half a dozen 'sex clinics' in Delhi (gupt rog, anyone?), a link to the Times of India's website, a couple of Wikipedia articles, an 11-minute YouTube video (which appeared to be a movie clip sans any sexual activity), links to sites offering sex education and sex advice, a website with sex jokes, and a psychology website.

The only remotely pornographic-sounding result was at the end of the page – "Hot Sex Positions - Crazy Hot Sex Movies" – and it turned out to be a link to the website of Cosmopolitan, a magazine freely sold at bookstores and newsstands all over the country.

Sifting through the maze of mangled sentences, logical inconsistencies and atrocious grammar (Exhibit A: "One can imagine the horrified picture availability of adult porn including child pornography in the country." Exhibit B: "Nothing can more efficiently destroy a person, fizzle their mind, evaporate their future, eliminate their potential or destroy society like pornography."), one is able to unearth the following points:

1. All pornography is evil

2. Pornography leads to violence against women

3. The existing laws are inadequate to deal with the menace of pornography.

The petition conflates all kinds of pornography and fails to make a nuanced argument against specifically harmful acts, like child porn (which is already banned under s. 67B of the IT Act). The petition also makes several leaps of logic when it seeks judicial validation for establishing a causal link between pornography and rape even though there is no empirical data to support such a conclusion.

It also makes bizarre (and completely irrelevant) comparisons between sexual sadists, paedophiles and people who watch porn, while attempting to justify the proposed ban.

Vaswani asserts that "rapists and child molesters use pornography both immediately prior to their crimes and during the actual assault". By the petitioner's own admission, the only evidence for this claim is "the status of Porn Videos/Porn Clippings in India from internet Wikipedia, the most trusted internet site for the purpose of making the largest effort of its kind for data collection on the nature and magnitude of the problem".

Vaswani’s motive behind this PIL is located in the usual conservative moral argument: prevent the degradation of "Indian culture" at the hands of Western decadence. Never mind the narrow and lopsided conception of Indian culture (are the sculptures at Khajuraho, for instance, pornographic?), the petition becomes singularly problematic because it ignores the difficult task of defining what is pornographic in the first place.

Ascertaining what criteria would be used to decide what is pornography is an exercise that, in public interest, the law (and courts) should steer clear of because it becomes micro-management of what individuals choose to watch in private. As the Delhi High Court sagely observed in 2009, "If there is any type of 'morality' that can pass the test of compelling state interest, it must be Constitutional morality and not public morality."

The Court's decision to hear the case on merits has raised wider concerns about its implications on the right to freedom of speech and expression (which, ironically, the petitioner claims he is trying to protect with this proposed ban on pornography).

"It is my fear that in case the Court further hears the PIL, not only will conservative interests be protected, but even the strict penal law which only prohibits publication and distribution of pornography will be made more rigorous with the expansion towards imprisonment for viewing it," Apar Gupta, Delhi-based technology lawyer and author of a treatise on the Information Technology Act, said.

"The suggestions of a wide scale filtering system are also severely disturbing and given the technical process cannot achieve it with precision. A wide deprivation of the right to speech and expression may be on the anvil," he said

Gupta's concern is justified. The solutions proposed by the petitioner are repugnant to the current intermediary liability regime that exists in India and also impractical. For instance, striking down s. 79 of the IT Act, which protects intermediaries (like ISPs), will essentially mean that every time someone accessed porn on an Airtel network, the CEO of Bharti would have to be sent to jail. All that would be achieved by carrying through the petition’s recommendations would be to produce a “chilling effect” – incentivising ISPs to liberally block all kinds of content to protect themselves from liability.

It isn’t as though there aren’t concerns as far as online content is concerned.

Chinmayi Arun, Research Director at the Centre for Communication Governance, National Law University, Delhi, said, "The challenge will be to block child pornography effectively without creating a system that is prone to misuse and enables the blocking of legitimate content. The only way to do this will be a self-regulatory or co-regulatory system."

However, Vaswani’s petition is quite obviously a clumsy attempt at imposing the petitioner's personal conservative morality upon the public, without any understanding of a Constitutional democracy that protects freedom of speech, expression and choice.

Now that the court has begun to hear the matter, it is hoped that the Government sees through this charade and calls the petitioner's bluff. Otherwise, we run the risk of moving further away from the Constitution and towards a Taliban-esque Internet governance.

(Manish is a researcher at the National Law University, Delhi. The views expressed here are his own.)