A student of Class 12th, Akash Narwala, from Kota, Rajasthan recently filed a petition to seek complete ban on the porn websites in India. He approached the apex court through lawyer Kamlesh Vaswani, seeking to join the plea filed by this lawyer in 2013 seeking complete ban on the pornography encouraging websites.
Kamlesh Vaswani v. Union Of India and Ors. (2013) : The case
The PIL petition was filed by this Indore based lawyer Kamlesh Vaswani in 2013 seeking a complete ban on porn sites and further declared Section 66, 67, 69, 71, 72, 75, 79, 80 and 85 of the Information Technology Act, 2000 ultra vires in terms of Article 14,19 and 21 of the Indian Constitution.
It further seeked to declare to treat watching of pornography and sharing of it as non bailable and cognizable offence and creation of seperate laws and formulation of a National Policy to declare such. The petitioner had pleaded that although watching obscene videos is not an offence, pornographic sites should be banned as they were one of the major causes for crimes against women.
The petition submitted contained: “The petitioner most respectfully submits that most of the offences committed against women/girls/children are fuelled by pornography. The worrying issue is the severity and gravity of the images are increasing. It is a matter of serious concern that pre-pubescent children are being raped.”
The petition was heard before a bench headed by then Chief Justice of India Altamas Kabir. He asked the government and all the government agencies to take this matter seriously.
Altamas Kabir retired and the matter was then came to the new CJI Justice B S Chauhan.
Internet Service Providers Association of India (ISPAI) submitted that they on their own cannot block such sites and they can do so only on the direction of the government.
Justice B S Chauhan retired and now the matter came to Justice H L Dattu, the new Chief Justice of India in 2014.
Union of India submitted that they were finding it hard to block the entire chain of porn websites as the number was close to 4,00,00,000.
Additional Solicitor General L. Nageswara Rao submitted:
“We wish to have some control over the content of social networking sites but the hurdle is that all of them are headquartered overseas and content uploading is done abroad. There are jurisdictional issues. So we are planning to ask these sites to have a server in India too so that we can scan them.”
Attorney General of India (AG) Mukul Rohatgi, assisted by the Assistant Solicitor General Pinky Anand appeared for the Union of India while the petitioner was represented by advocate Vijay Panjwani on July 31, 2015 after a series of orders were passed by the apex court and after the Chief Justice of India showed his dissatisfaction towards the attitude of the Union of India.
Mukul Rohatagi said that the Government of India had already issued an order to block the ISPs circulating child pornography. He also told the court that if someone wished to watch porn within their bedroom how can the state interfere with such an activity. Raising the issue of technical inability, AG submitted that how could someone be stopped from watching porn in their phones.
AG asserted that the Government did not want do moral policing and that India cannot become a totalitarian state by banning all pornographic websites. He also opined that Government of India is backing the freedom of Internet and hence they cannot order such a ban which completely prima facie restricts such a freedom. He also mentioned about the Digital India scheme of the present Government and said that passing such an order would be contradictory to the motives of the Indian Government.
Bombay High Court in a 2008 Maharashtra incident observed that: “Simply viewing an obscene object is not an offence… It becomes an offence only when someone has in possession such objects for the purpose of sale, hire, distribution, public exhibition or putting it into circulation. If the obscene object is kept in a house for private viewing, the accused cannot be charged (for obscenity).”
AG told court that Government is committed towards banning of child pornography and has been taking measures to disable access to the same. If a URL of child pornography is given, Government orders for its blocking and which may also take place through court orders based on the judgment in Shreya Singhal v Union of India. He added that ban of pornography may be part of the larger debate, may be in Parliament. On controlling the child’s access to pornographic content on the Internet, he said parental control measures are there which can be taken.
According to the statement given to the media, Ashok Narwala said that even the students studying in lower standards had access to such pornographic content and that it has upsetting and damaging effect on them. Also in his affidavit he stated that delinquent behaviour, substance use and objectification of women was also prevalent with his colleagues addicted to porn.
The center elucidated that it only favors banning child pornography.
“The problem with the current case is that banning the porn websites is a challenging manifesto that cannot be issued arbitrarily without actually looking into the rationality of the petition. India cannot curb the freedom of internet as a state. Also that the number of websites issuing pornographic content are vast in number, entailing behind a trail of subsequent websites resurfacing time after time. Even if a porn website is black balled, the same website can be accessed through proxy servers. As far as the child pornography is concerned, Government is trying everything to curb this issue but it is still to be observed if merely watching such a content could be made a penal offence. Parents are requested to be more vigilante about their child’s internet habits.”
Harsh Vardhan Tripathi