What’s problematic with Porn Ban?

On Monday, 5th May, a Bench of Justices B.S. Chauhan and J. Chelameswar of the Supreme Court will hear a petition filed by Kamlesh Vaswani, an Indore based lawyer, which seeks among other things, directions to the Government to frame a specific law and a national policy on pornography, to make viewing pornography an offence and to direct intermediaries to proactively monitor and block all pornographic content on the Internet.  .

The Supreme Court’s order on Monday will be crucial, as the petition is problematic on multiple grounds: some of the reliefs claimed by Mr. Vaswani, such as the new law and policy, are outside the court’s domain; while others, like directing intermediaries to  proactively monitor and block online pornography, will have other serious consequences. A major issue is the absence of an objective standard defining pornography. The Supreme Court has in the past held that pornography is an aggravated form of obscenity. However, in the absence of any clear statutory definition, it has held that the task of what is obscene has to be determined by the courts from case to case. Thus, the obscenity standard under the Indian law is complex and requires legal competence to apply: something that intermediaries will simply be incapable of doing.

Besides proactive monitoring and blocking, Mr. Vaswani has also requested the Court to strike down section 79 of the Information Technology Act, 2000 (“IT Act”), commonly known as the ‘safe harbour provision’, which protects intermediaries from liability arising from content posted by third parties. If the Court allows this, it would mean that intermediaries like Dailymotion or Facebook will be liable for pornographic videos uploaded by their users. These intermediaries being business entities, will have greater incentive to protect themselves from liability than to preserve access to protected speech. In the absence of an objective standard and faced with the scenario of assessing very high volumes of material in a very limited time frame, they are likely to err on the side of caution in removing any material which, according to them, might be pornographic. This will lead to over-blocking, potentially affecting legal content, (for instance, websites providing information on HIV-AIDS), which will violate the right to freedom of expression both of users whose legitimate content ends up being taken down, as well as those who will lose access to this constitutionally protected speech.

By issuing such an order, the Supreme Court also risks overstepping its boundaries under the Constitution. Blocking of websites is an executive function under section 69A of the IT Act. Likewise, enacting laws regulating pornography is a purely legislative function. Neither of these, under the Constitution, can be appropriated by the judiciary. The Supreme Court has over the years attempted to strike a fine balance between judicial activism and judicial restraint, with the consensus seeming to be that the Court can issue directions to the Executive only in the complete absence of active law to provide for the effective enforcement of basic human rights – a situation described as a “legislative vacuum”.An example of this is the Court’s 1997 decision in Vishaka v. Union of India, where it issued guidelines to deal with sexual harassment at the workplace in the absence of any law on the point.

On the other hand, where a law already exists, the Court has generally declined to intervene. As recently as this March, a Bench of the Supreme Court (which, incidentally, Justice Chauhan was also a part of) in Pravasi Bhalai Sangathan v. Union of India, taking note of this legal position,refused to frame law banning hate speech on the ground that there were existing provisions under the Indian Penal Code and other laws to deal with it. Likewise, the regulation of pornographic material in India is far from being a legislative vacuum. Sections 67 and 67A of the IT Act respectively penalise transmission of obscene and sexually explicit material in the electronic form, while section 67B similarly criminalises child pornography. In this situation, given that there is a law clearly in force, an intervention by the Court would be an unfortunate breach of its own principles.

In a situation where it is technologically impossible to effectively monitor content online, and in the absence of a clear definition of pornography, any direction issued by the Court to intermediaries to block pornographic content will adversely affect the fundamental right to freedom of speech and expression. Moreover, the Court should follow its own precedents laying down that it is not for the Courts to frame policies or run the administration of the country and it cannot rewrite laws made by the legislature. Online pornography is a matter that Parliament has, in its wisdom, legislated upon to the extent provided for in the IT Act. It is hoped that the Supreme Court will similarly exercise wise judgment and decline to interfere in the matter.

(Manish and Sarvjeet are Fellows at the Centre for Communication Governance at National Law University, Delhi)

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