To their credit, the government has been careful in its responses to such calls, while there has been effort on the part of our lawmakers to get broader input on this issue through a public consultation.

Perhaps this is because the IT Act in particular, as well as the Indian legal framework more generally already allow those who find certain material objectionable to seek legal recourse. For example, sections 67 and 67A of the IT Act prohibit the publication and distribution of obscene and sexually explicit material respectively, while section 67B forbids all publication, distribution, facilitation and consumption in any manner of child pornography.

What added value will the proposed additional measurs then bring? None. Or rather the reverse in fact: such measures will be a big mistake, as they will both work to undermine women’s rights in India and will have deeply harmful effects on the ability of India’s citizens to exercise their right to freedom of expression. Let us examine four core sets of reasons why this is so.

1. Inconclusive evidence regarding the impact of pornography on society #

Without providing any evidence to substantiate these claims, those who demand a ban on pornography frequently argue that a range of challenges have emerged as a direct consequence of the availability of sexually explicit material on the Internet. These range from a breakdown of the social fabric to the spread of sexually transmitted diseases. In particular, access to pornography is believed to be negatively affecting India’s youth and to have a direct relationship to an increase in violence against women.

Conclusive evidence for such claims does not, in fact, exist. Studies from across the world consistently point out that there is no direct correlation between onscreen and real-world violence against women. In the same vein, a direct causality between pornography and rape has not been conclusively established¹.

Where India is concerned concretely, it deserves to be noted that while the statistics of rape, sexual assault and violence against women are worrying, some of the highest prevalences are found in areas in the country that have little to no Internet penetration. Indeed, until today, the Internet penetration in the country remains stuck at about 10 to 12 percent of the population. Although mobile phone usage as such is more widespread, recent figures after de-duplication indicate that this, too, has only reached around 30 percent of the Indian population. Moreover, many of the mobile phones in circulation do not have Internet access nor are they capable of displaying images or streaming video². Finally, at least some of the users of Internet pornography are in fact women. A causal link between Internet porn and the prevalence of violence against women in the country is therefore impossible to establish.

In fact, it is evidence to the opposite that is rather conclusive: the Internet has provided an important new avenue for sexual expression, in particular so for women and sexual minorities, whose sexual autonomy in the offline world has been considerably restricted in Indian society due to prevailing social and cultural norms. A 2010 study by Manjima Bhattacharjya and Maya Indira Ganesh, which looked at women’s rights, sexuality and Internet use in India, found that the Internet had emerged as an important new space for individuals to gain access to information on sexuality and reproductive health, to seek pleasure and express their sexual preferences and to claim equal sexual citizenship rights. The Internet has opened up new avenues to mobilise, organise, and explore sexual identities³.

Unfortunately, a ban and criminalisation of possession of pornography would likely close down this space of empowerment for women as well as harm the right to freedom of expression of all Indians and undermine women’s rights in India more broadly, and this for a variety of reasons.

2. Harming free speech and women’s rights online by ignoring consent #

The first is that a blanket ban on pornography does not take into account the crucial issue of women’s consent, be it when participating in the production of pornography or when consuming pornography. In a recent visit to India, the UN Special Rapporteur on Violence against Women Rashida Manjoo noted with dismay that most of the laws that claim to benefit women in India use a welfare approach, rather than a women’s rights approach. In situations that may be potentially exploitative, a women’s rights approach focuses on consent as it considers the wishes of an individual as having precedence over externally imposed interpretations. However, where expressions of women’s sexuality are concerned, obscenity laws in India have been widely used to protect dominant patriarchal moral beliefs at the expense of women’s human rights. Such laws tend to problematise expressions of women’s sexuality as such, rather than whether or not women consented to such expressions.

India’s law makers have in recent years had the foresight to start to correct this historical wrong. Section 66E of the IT Act, for example, on punishment for violation of privacy, explicitly forbids capturing, publishing or transmitting ​‘the image of a private area of any person without his or her consent’ (emphasis ours). Various landmark amendments to the Indian Penal Code, too, introduced as part of the Criminal Law (Amendment) Bill 2013, highlighted the importance of consent, in particular in sections 354A (which defines showing pornography to a woman against her will as sexual harassment), 354C (on voyeurism) and 354D (on stalking). A blanket ban on pornography would be an extremely unfortunate step backward as compared to these recent gains.

Further reasons why a blanket ban on pornography and a criminalisation of possession of pornography would harm freedom of expression and close down the Internet as a space for empowerment for women and sexual rights have to do with definitional, technical and other challenges in implementation. We will address these concerns separately in the following section.

3. Causing further damage to women’s rights and free speech online because of problems in implementation #

The proposed ban on pornography and criminalisation of viewing certain types of pornography raise further important questions regarding definitions. Who will decide what is pornography and what is extreme pornography or hardcore pornography? Would the decision of which sites to ban be left to the ISPs in case of the Internet, to the telcos in the case of mobile phones? Would it have to be taken by schools and cyber cafes? Would the police be required to sit in judgement as to what constitutes extreme or hardcore pornography? Considering the discrepancies between the ways in which ​‘obscenity’ under Section 292 of the Indian Penal Code has been interpreted by different judges, it is likely that defining something as diverse as pornography will prove even more difficult, especially for those not trained to do this work, with possibly devastating consequences for women’s rights and free speech.

Indeed, in his report of June 2011 on the Internet and freedom of expression, UN Special Rapporteur on Freedom of Expression Frank La Rue stated explicitly that the privatisation of freedom of expression by outsourcing it to intermediaries such as ISPs, telcos or cyber cafes is unacceptable⁴. As they are the only ones competent to take a decision as to what constitute illegitimate content, decisions on censorship should always be taken by courts or an independent judicial body.

In India, we have the experience of the implementation of the Intermediary Guidelines Rules 2011 to remind us of the chilling effect that the privatisation of censorship always brings with it. As a study by the Centre for Internet and Society showed, when decisions on censorship are left to intermediaries, they err on the side of caution. This means that content that even under overly-broad laws is in fact legitimate is at risk of being censored.

The proposed ban on pornography mirrors the Intermediary Guidelines Rules in its reliance on private parties for its implementation and would thus further weaken the protection of the right to freedom of expression of all Indians.

As experiences in a wide range of countries have shown, filtering the Internet to block pornography or creating a blacklist of sites that are made inaccessible are by no means effective measures: while generally merely driving the consumption of pornography underground rather than stopping it, such measures cause sexual content that is of an educational, scientific or artistic nature to be blocked as well. This can be both as a consequence of human mistakes (as humans interpret definitions overly broad, as explained above) or of technical limitations (as filter systems based on key words will filter out all content containing those key words, without considering at their intent or context)⁵.

By broadly expanding the definition of what qualifies as illegitimate content and relying on private players to block such content, the chances that legitimate content and expression are blocked, too, thus increase exponentially. In a democratic country, this is unacceptable. Only content that has been found unacceptable by a court should be blocked.

Similarly, the great harm that the criminalisation of merely viewing certain types of pornography can do to the protection of freedom of expression in India is exemplified by India’s experiences with the implementation of the IT Act’s infamous section 66A. Plagued by vague wording, the interpretation of this section was open to wide interpretation by police personnel. Over the past two years, there have been numerous reports of abuses of the section. Where police personnel is tasked with sitting in judgement on what constitutes ​‘extreme’ or ​‘hardcore’ pornography, such abuses are likely to occur again, as this is not a task they have been trained to do.

Indeed, throughout his work, UN Special Rapporteur on Freedom of Expression Frank La Rue has stated again and again that the criminalisation of speech is appropriate only in the rarest of cases, notably those in which there is an immanent threat of violence⁶. Viewing pornography does not fall within these parameters, making the criminalisation of it unacceptable under international human rights law (as long as there is consent of all concerned, this is in fact true of producing or distributing pornography as well).

The production and consumption of child pornography is considered a legitimate exception that qualifies for criminalisation. Accordingly, Indian lawmakers already moved to make this a crime when amending the IT Act in 2008. It perhaps deserves to be pointed out here, though, that the mere blocking of child pornography does little to eradicate the problem, as India’s high levels of child sexual abuse, for example, exemplify. If a block of such content is not accompanied by concerted efforts to eradicate the practice of child pornography and child sexual abuse in the offline world, it might in effect only have affected the visibility of the phenomenon. This may lead to a false and dangerous sense of reassurance that the associated problems have been dealt with adequately, while they have in fact only been further pushed underground.

4. Inappropriateness of framing a legislation meant for all Indians around possible challenges faced by minors in particular #

Finally, it is simply inappropriate to frame a legislation aimed at the entire population of India around the possible new challenges minors face in particular. There are numerous aspects of our social life that pose particular dangers for young people, ranging from the availability of medicines, cigarettes or alcohol, over driving motorised vehicles or watching particular films, to access to industrial installations of particular kinds. Despite the fact that these might entail possible dangers for young people, access to them has not been denied to the entire population on these grounds. There is no reason why pornography should be treated any differently.

To the extent that young people do indeed require guidance to deal with pornography (and other adult material, including violence), the responsibility to provide this guidance is that of parents, schools and society at large. Contrary to what some proponents of a ban claim, recent efforts to introduce sex education in schools, as well as efforts to educate children on the importance of relationships based on respect and consent more broadly, are important examples of steps in this direction. In light of the difficulties in implementation and defining pornography raised in section three, it is highly probable that websites pertaining to sexuality education and sexual health will also get blocked under a ban. In a rapidly changing world, it is, however, precisely actions of this type – i.e. encouraging education and conversation around healthy sexual behaviour and relationships — that we need to further develop and promote in context-specific ways. To abdicate to the law this collective responsibility to guide India’s youth would mean that we are abdicating our responsibility as a society.