Recently, the government issued a notice to ISPs to block 857 websites having pornographic content. In July 2015, CJI HL Dattu said that blocking such websites was against the right to personal liberty, if a person is accessing pornography “within the four walls of his room.” However, this was soon followed by the ban.
Article 21 of the Constitution states that no person shall be deprived of his personal liberty except according to procedure established by law. When a citizen chooses to watch pornography without impacting anyone unlawfully, he is exercising his personal liberty.
Production and consumption of child pornography is illegal according to the Protection of Children from Sexual Offences Act. Therefore, if a person is involved in this, he cannot avail of the right given to him by Article 21, as he is breaking the law.
The production of pornography can be scrutinized for whether it disturbs public decency or morality or causes incitement to an offence, in which case the freedom of expression through pornography may be curtailed according to Article 19(2).
While watching pornography privately does not disturb public decency or morality, the PIL said it incites people to commit sexual offences, which cannot be scientifically proved.
Section 67 of the Information Technology Act, 2000 prohibits publishing of “obscene” material online. So, banning Indian pornographic websites would be lawful, but since the banned websites are hosted outside India, this law doesn’t apply to them.
Therefore, while the ban on child pornography is constitutional, the general ban on all pornography is not.
Since child pornography is the major problem here, and the internet is not based in a single country, it is important to have global laws to control this. The UNICEF needs to bring together all UN nations to understand how to solve the issue.