Watching or Sharing Sexual Materials: Is it a Crime?

Watching pornography not a crime

Watching the pornographic content, except child rape or child pornography or violence against women, in a private space is not at all illegal in India. But sharing and distribution of such content/material is illegal.

However, watching the pornographic content such as child rape, child pornography, or violence against women, in a private space itself is a criminal offence.

The Supreme Court (SC) orally remarked a few years ago that it cannot stop an adult from exercising his fundamental right to personal liberty to watch porn within the privacy of his room.

Obscene materials under I T Act

The Section 67 of the Information Technology Act, 2000 ( IT Act) makes it illegal to publish or transmit “obscene material” in electronic form. This material, it says, can be anything which is “lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt” people who watch it, read or hear it. Anybody who does this can be punished with a three-year jail term along with Rs 5 lakh as fine.

under Section 67A of the IT Act anyone who “publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct” can be punished with a jail term of 5 years along with a fine of Rs 10 lakh,.

The Section 66 E of the IT Act provides the punishment for “violation of privacy of 3 years or fine of a maximum of Rs 2 lakh, for anyone who intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person”.

Crimes on obscenity under IPC

The Section 292 of the Indian Penal Code (IPC) states that selling any obscene material which is lascivious in nature or appeals to the prurient interest of the people and the effect of which corrupts them is an offence.

If a person is proven guilty for the first time, he/she can be jailed for up to 2 years and a fine of up to Rs 2,000, while it could extend to 5 years and a fine of up to Rs 5,000 for the second time.

Under Section 293 of the IPC, if any person sells, distributes, exhibits or circulates any obscene picture, painting, writing, book, pamphlet or drawing which is lustful or lewd to a person below eighteen years of age shall be punished for first conviction with imprisonment up to three years and fine up to Rs. 2000, but for the subsequent conviction the punishment would be up to seven years and a fine up to Rs 5000/.

The Section 354 A of the IPC includes “showing pornography against the will of a woman” as a crime to punished with three year’s rigorous imprisonment or with fine or both.

In indecent Representation of Women

The Indecent Representation of Women (Prohibition) Act, 1986 prohibits indecent representation of women through “advertisements or in publications, writings, paintings, figures or in any other manner and for matters connected therewith or incidental thereto.”

The officer authorised by the government, as prescribed under the rules in this regard, can enter any premises and make search and seizure of such materials.

The punishment for this crime should be upto two years imprisonment and an amount of fine up to Rs 2000/.

Possession of child pornography itself is an offence

Even mere possession of child pornography material even in private place is a crime in India.

The Section 14 of the POCSO Act makes it a crime to “use a child or children for pornographic purposes”, prescribing a punishment of at least five years jail term with fine for the first time. In case of subsequent conviction, the imprisonment would be for a minimum period of seven years, along with fine.

The Section 15 of the POCSO Act also makes it illegal to store or possess child pornography “for transmitting or propagating or displaying or distributing” it in any manner. The only exception to this is storing or possessing pornographic material for reporting it to the authorities or for using it as evidence in court. The Section provides for an enhanced punishment of three to five years imprisonment for anyone who stores or possesses child pornography for commercial purposes.

The Section 67B of the IT Act makes it punishable for anyone to publish or transmit material depicting children in sexually explicit acts in electronic form. This provision makes it a crime if anyone is creating text or digital images or collecting, browsing, downloading, advertising, promoting, exchanging or distributing any material that depicts children in obscene or indecent or sexually explicit manner.