NEW DELHI: In a little-noticed fallout of the recent amendment to the Information Technology (IT) Act 2000, the government has given up the power to block pornographic websites purely on the ground of obscenity . Sites like Savita Bhabi, in other words, can no longer be banished from the virtual world merely because they don't conform to a babu's subjective moral view. Now, the courts alone can block such sites.

This is because Section 69A, which came into effect on October 27, 2009 has raised the bar for the executive power to block porn websites. The government can still block such websites, but only if they create a "public order" problem -- an unlikely probability. Savita Bhabi, for instance, can hardly start a riot.

The change is thanks to a small but critical difference between Section 69A and the earlier version of Section 69. Under the old provision, the government could ban websites for "preventing incitement to the commission of any cognizable offence" including obscenity, a charge liable to be made out against porn websites. But the new provision takes a more pragmatic approach as it limits the power to ban websites to offences relating to five specific grounds.

None of those five grounds specified in Section 69A -- sovereignty and integrity of India, defence of India, security of the state, friendly relations with foreign states and public order -- have anything to do with the offence of obscenity.

The intention of the lawmakers to keep the government away from moral policing of porn websites is also evident from the manner in which the grounds mentioned in Section 69A have been selectively lifted from Article 19(2) of the Constitution, which imposes "reasonable restrictions" on the freedom of speech and expression.

Though Article 19(2) allows restrictions in the interests of, among other grounds, "public order, decency or morality", all that has been incorporated in Section 69A of the IT Act from that expression is "public order". The implication is that the government can no longer block a porn website unless it has ramifications threatening public order.

This is a far cry from the pre-October 2009 situation when the government, in a controversial move, blocked access to savitabhabhi.com in June, merely on the basis of obscenity complaints. The ban has, not surprisingly, proved to be meaningless as the website has since been relaunched with impunity from a foreign server under a different name, kirtu.com.

However, while making porn sites immune to executive interference, the amended IT law has enhanced the scope for judicial intervention. In place of an omnibus provision that was there in the original IT Act to deal with all forms of obscenity on the Internet, there are now three provisions calibrating the penalty according to the nature and gravity of the offence.

First, Section 67, on the lines of a corresponding provision in the IPC, imposes a maximum sentence of three years for publishing or transmitting obscene material in electronic form. Second, Section 67A enhances the penalty to five years for material showing sexually explicit act or conduct. Third, in the first ever provision dealing with pedophilia, Section 67B prescribes up to five years imprisonment for any form of child abuse in cyber space.

While proceedings against any of these offences related to obscenity are pending, the courts are empowered to pass interim orders directing that the offending material be removed or blocked. Thus, the coercive power of blocking porn websites can now be exercised only by the judiciary.

Though these far-reaching changes to the IT law had been passed by Parliament in December 2008, they were brought into force only in October 2009 as the government had to frame rules under some of the new provisions. When the draft rules on the blocking of non-porn websites had been circulated last summer, TOI was the first to point out that they did not comply with the natural justice principle of a prior hearing to the affected party.

In the rules eventually notified in October, the government stipulated that the host of the site which is sought to be blocked would have to be given a prior hearing in all cases except "emergencies".

QnA: Was the Indian government right in banning Savita Bhabhi?