‘[Pornography] is worse than Hitler, worse than AIDS, cancer or any other epidemic. It is more catastrophic than nuclear holocaust, and it must be stopped’ – Petition filed by Kamlesh Vaswani to the Supreme Court of India
In early April 2013, lawyer Kamlesh Vaswani filed a Public Interest Litigation petition to the Supreme Court of India calling for a ban against the consumption of pornography. While existing online and offline Indian laws already criminalise the distribution of sexually explicit material as well as the viewing of child pornography, Vaswani’s petition argues that these provisions are not enough. He thus brings to the fore an argument that has been thoroughly but inconclusively rehearsed across the world: pornography leads to sexual violence.
Submitted soon after the gang rape of a young woman on a bus in New Delhi sparked ripples across the world and finally woke Indian media up to the seriousness of sexual assault within the country, Vaswani’s timely petition captured both public imagination and media spotlight. An extract from the petition reads: ‘This petition is also filed for enforcement of the fundamental rights of 75% of the Indian population including women/girls/children (housewife, working and non-working women, students) as innocent, susceptible and vulnerable women and children of India’ (1) (my italics). Laying out his argument in no uncertain terms Vaswani goes on to say, ‘The severity and gravity of images is increasing… most of the offences committed against women/girls/children are fuelled by pornography.’ (2) In this way, and mirroring several existing Indian laws and mores, the petition sets up a scenario where the victims of visual representations are always ‘innocent’, lacking-in-agency, ‘good’ Indian women.
The proposed litigation raises two immediate questions: Is there any clear connection between rape pornography and actual rape and; given the way in which Indian internet laws are granting more power to the State for surveillance, what would such a ban mean for freedom of expression online?
Online Porn and Offline Violence
An editor of leading Indian daily The Hindu, Vaishna Roy, draws attention to two facts in support of the pornography ban. First, two men who were recently arrested for raping a 5-year old girl in Delhi had been watching porn on their mobile phones preceding the rape; and second, that according to Google, New Delhi has recorded the highest number of searches for the word ‘porn’ across the globe. (3) And of course, as we are all quick to mention these days, Delhi is the unofficial ‘rape capital of the India (and more recently, the world)’, notwithstanding the reality that several areas within India itself (notably with little to no internet penetration) have far higher statistics of rape, sexual assault and violence against women.
It is important to note that feminist thought around the issue of pornography greatly varies, and that certain urban women’s groups have been key in implementing many of India’s censorship laws. Says Linda Beatrice, an alumnus from the National Law School of India University, ‘As a social activity, there aren’t a lot of convincing arguments about the benefit of pornography, except for invalidated claims of it releasing pent up sexual desires. Lone games are rarely fun, and sooner or later they want to try it out. Whether it will only be a passing experiment or lead to something darker, and whether it’s a risk we need to take, is a question law makers have to face.’ (4) However, what is the greater risk – that of people ‘wanting to try it out’ without consent, or enforcing greater internet censorship?
Studies across the world consistently point out that there is no direct correlation between onscreen and real-world violence against women. (5) And while it may be argued that a society that breeds and naturalises violence against women in its visual culture contributes to a normalising of this violence in reality, the direct causality between pornography and rape has not been established. As writer and activist Nisha Susan wryly says, ‘Everyone’s saying now that last week’s rapist-murderer watched porn before he set out to torture a five-year-old. That’s like saying Mark David Chapman read Catcher in the Rye before shooting John Lennon.’ (6) Furthermore, given that internet penetration in India is only 10% of the population (the percentage in relation to rapists has yet to be examined; however, given that rape is not an epidemic unique to urban middle class men, we can only assume that it would not be very high), and that at least some of those users are women, who themselves are watching and enjoying pornography, the link between (at least internet) porn and rape is practically impossible to establish.
So what’s all the fuss about?
The preamble to the petition reads: ‘Pornography is nothing but the commercial exploitation of sex which has the ample power to destroy the structure of the community…[It] is like a moral cancer that is eating our entire society every second across the country.’ (7) Here we have it: the crux of the argument, reflected in Indian legal, social and political culture – the morality of India is under threat. Throughout history and across the world the chastity and virtue of women have been seen as markers of cultural worth; however, in the context of a post-colonial society grasping for both a monolithic, pre-colonial cultural identity and economic and social development, the symbol of the ‘pure’ or ‘virtuous’ Indian woman has come to stand for the nation as a whole. As Vaswani’s petition illustrates, it is the ‘structure of the community’ that is under threat. A brief consideration of India’s rich history of censorship shows that the threat to this structure is not the violation of women, but female sexuality itself.
Curbing the ‘Obscene’
Both online and offline laws in India seek to curb the ‘obscene’ across visual and textual cultures – a word that retains its legal definition from the time of British Imperialism as that which is ‘lascivious’ or ‘in the prurient interest’ (read: pertaining to sex, and in particular, female sexuality). Such legal provisions, including those that seek specifically to censor sexual representations of women both online and offline, are done in the name of ‘protecting’ the ‘innocent’ women and children Vaswani frequently refers to (irrespective of the numerous women who are themselves watching and enjoying pornography, engaging in webcam chats, and so on). And if the proposed ban is, as it says, to protect women, who exactly is it protecting them from?
Who should and shouldn’t watch porn? Surely someone has to watch it to decide what the parameters of pornography are. So who will these esteemed and qualified individuals be? According to Vaswani’s petition, the category of men who watch porn – and presumably subsequently go on to rape and assault women – is ‘the male population of India having age ranging from 9 years to 75 years.’ (8) However, if this is the population who stands at risk of being corrupted by the evils of pornography, who will form the porn censor board – surely not India’s ‘innocent’ and ‘pure’ women?
In reality, existing laws that criminalise the distribution of pornography do so along class lines. For example, India has a history of ‘sleaze’ theatres showing soft and hard core pornographic movies to a male audience that does not have access to DVD players, smart phones, or, more importantly, privacy. In this way, the existing ban against pornography criminalises the viewing of porn by the poor, who are invariably seen as being more open to the ‘negative influences’ of obscene content. The advent of numerous cyber cafes then began to provide spaces for the privacy once afforded by the sleaze theatres (many of these theatres still exist, falling into a legal grey-zone to which law enforcement turns a blind eye), which allowed people to view porn in the privacy of a booth. With increased surveillance of internet use in cyber cafes – including mandatorily providing a state-approved form of identification before being permitted to go online – it is clear that with any ban that criminalises users rather that content producers, these spaces will be the first points of implementation.
Furthermore, it is substantially cheaper to load ‘those kind of movies’ onto the mobile phones of people without access to the internet. The vendors who sell these movies will presumably be an access point from which porn viewers can be traced. In this way, the protection of women through the banning of pornography will be, at least initially, implemented in a way that initially prevents the lowest economic strata (of the only 10% of Indian internet users) from accessing such content.
Censoring the internet
Apart from the space and means for viewing porn outside of private internet connections (including cyber cafes, mobile phones, purchasing DVDs, theatres), the most serious long lasting implications of this ban will be on internet surveillance and censorship. Over the past year the Information Technology Act has come under much public criticism for allowing unprecedented online censorship. In a highly relevant parallel to the proposed ban on pornography, sections of the IT Act have been enacted for the supposed ‘protection of women’, who are under attack from the ‘new threats’ that technology poses (9). But if the government is considering passing a law to ban the viewing of something as diverse as pornography (one man’s porn is another man’s…well, nothing), the question of implementation is highly pertinent. An article in The Economic Times cites the example of China, where internet systems are highly regulated and closely monitored. Recently, the Chinese government advertised for a Chief Pornography Identification Officer. How many such officers would be needed in India? (Which brings us back to who would these designated, un-corruptable officers be?). (10) Furthermore, given already-stretched police resources, would law enforcement be able to follow up each lead that pointed to a 14 year old boy on summer vacation looking at some afternoon erotica? And what would happen to Indian morality if that 14 year old shock and horror turned out to be a girl?
To create a system where the viewing of pornography can truly be monitored and banned, it would first require an authoritarian approach to the internet. Under this approach, it is not clear what other content, mistaken as porn, may also be banned. Examples from Denmark’s ban on child pornography show that numerous legal websites pertaining to sex have also beenblocked. In India, where levels of sex education are remarkably low and lead to harmful misconceptions and perceptions about sex and sexuality, the implications of banning the few existing access points to such information – such as sexual health online resources – would be severely harmful. Recent studies point out that Indian women are breaking the silence around their sexuality and using the internet as a space to talk about matters of sex.xi Is this, too, going to be deemed pornographic? Who is being protected then?
In order to criminalise the viewing of certain content on the internet, even the most basic system of monitoring – already existing in most places across the world – views all internet users through a lens of suspicion. In a video made by the Bangalore-based Centre for Internet and Society, Nishanth Shah says, ‘It seems to be like the Biblical paradigm where you are born in conditions of sin. For the Indian State, you are born in conditions of Technology. ’xii If iternet systems become more closely monitored – as the proposed porn ban would require them to be – a CCTV culture of surveillance would become a normal aspect of the cyber world. For human rights and free speech activists working repeal existing censorship laws in India and globally, this is a cause for great alarm.
Finally, the proposed petition that seeks to ban pornography – and any law that may or may not follow in its wake – has failed to take into account the fundamental way in which the internet works. In a paper published by the Association for Progressive Communications, lawyer and activist Namita Malhotra says, ‘The law attempts to regulate content as if it is static and stable, and can be erased, prohibited, or partly blocked.’xiii Through web cams, chat rooms, private messages and public videos, content on the internet moves as quickly as users click from one page to the next. Says IIT lecturer Rateesh Radhakrishnan, ‘There’s no way that you can actually stop the production of a pornographic text in consumption. It’s the way I navigate the Internet that I produce the text for me.’xiv
In this way, the monitoring of pornography would require a clear definition of what pornography is (which, if current laws around ‘offensive’ or ‘indecent’ material are anything to go by, would be dependent on the morals of the individuals deciding what was (in)appropriate). It would also require a severe clamping down on internet freedoms by a State that frequently uses existing censorship laws in favour of the wealthy and powerful.
Faced with these barriers, it is useful to return to the intention behind the ban: protecting women from sexual violence. And as this article has sought to establish from the outset: there is no proven causality between visual culture and violence against women. If the law and the State truly seek to address sexual violence against women that arises from a lack of knowledge around mutually consensual and respectful sexual relationships, there are countless groups and activists throughout the country asking for the right to implement rigorous and comprehensive sexuality education programmes in schools. However, if the pornography ban, like several other legal clauses around indecency and obscenity, has more to do with protecting the ‘morality’ and ‘culture’ of an increasingly religious and right-wing government, proponents of a potential pornography ban, including feminists, should think twice. In recent years State-led responses to violence against women have increasingly come with various forms of censorship and restrictions attached onto them, which have subsequently been used to suppress dissent, sexuality and creativity, all under the bold banner of ‘women’s rights.’ Malhotra writes, ‘Legal diktat that is indifferent to ordinary desires and lives will not address our concerns about sexual violence and misogyny,’xv and in the case of this proposed legislation, will further impinge upon the rights to privacy, sexuality and self-expression of India’s citizens.
(1) ‘In The Matter Of: Kamlesh Vaswani versus Union of India and Others’ April 2013. Web. 16.06.2013
(3) Roy, Vaishna. ‘Freedom that must have limits’ The Hindu. 29.04.2013. Web. 15.06.2013
(4) Email interview with Linda Beatrice. 12.06.2013
(5) Clark-Forey, Tracey. ‘Does porn cause violence?’ Salon. 15.05.2013. Web. 15.06.2013
(6) Susan, Nisha. ‘Forget The Lokpal. Who Will Be Your Porn Pal?’ Tehelka. 04.05.2013. Web. 15.06.2013
(7) ‘In The Matter Of: Kamlesh Vaswani versus Union of India and Others’ April 2013. Web. 16.06.2013
(9) Remarks made by Union Minister for Communications and Information Technology in a TV interview. 'Facebook arrests were case of over-reach: Kapil Sibal to NDTV' NDTV. 29 November 2012. Web. 8 March 2013
(10) Doctor, Vikram. ‘Beware! Supreme Court may make watching porn a non-bailable offense’ The Economic Times. 21.04.2013. Web. 15.06.2013
(11) Biswas, Ranjita. ‘Indian Women Talk About Sex - In Cyberspace’ Inter Press News Service Agency. 11.06.2013. Web. 15.06.2013
(12) ‘Privacy, Pornography, Sexuality (a video). The Centre for Internet and Society. 11 December 2009. Web. 15.06.2013
(13) Malhotra, Namita. ‘The World Wide Web of Desire: Content Regulation on the Internet’ Association for Progressive Communications. 2007. Web. 15.06.2013
(14) ‘Privacy, Pornography, Sexuality (a video). The Centre for Internet and Society. 11 December 2009. Web. 15.06.2013
(15) Malhotra, Namita. ‘Missing the point, again’ The Indian Express. 24.04.2013. Web. 15.06.2013