When the single judge bench of Justice PV Kunhikrishnan was hearing the petition filed by the man, it observed that pornography has been in practice for centuries. The new digital age has made it more accessible than ever before and it is available even to children and adults at their fingertips. The question to be decided in this case is whether a person watching a porn video in his private time without exhibiting it to others amounts to an offence? The Court observed that it can’t be considered an offence legally for the simple reason that it is his private choice and interference with the same amounts to an intrusion of his privacy.
The Court also said that god designed sexuality as something for a man and a woman within marriage, and it is not only lust, but also a matter of love and for having children too. Moreover, a male and female who have attained majority, doing sex with consent is not an offence. Consensual sex between a man and woman is not an offence in our country, if it is within their privacy. A court of law need not recognise consensual sex or watching of a porn video in privacy because these are within the domain of the will of society and the decision of legislature. The duty of the Court is only to find out whether it amounts to an offence.
The case against the man, Avneesh, alleged an offence punishable under Section 292 IPC. The prosecution/state case is that while the defacto complainant (police) and his associates were on patrol duty on July 7, 2016 at 8.40 pm, the accused was seen standing on the road side near Aluva palace, watching obscene videos in his mobile phone and hence he was arrested and his mobile phone was seized. Thereafter, the police filed a charge sheet before the Judicial First Class Magistrate, Aluva and the Magistrate took cognizance of the offence based on the final report. According to the accused, even if the entire allegations are accepted in toto, no offence under Section 292 IPC is made out.
The Court noted that the point to be decided in the case is whether the offence under Section 292 IPC is made out in the case. The Court observed that to attract an offence under Section 292 IPC, there must be evidence to show that the accused sells, lets to hire, distributes, publicly exhibits, or in any manner, puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever. There is no case that the accused was watching obscene videos using a mobile phone which will attract youngsters. There is absolutely no allegation by the prosecution/state that the accused publicly exhibited the video. Even the Section 161 CrPC statement of the police officer only shows that the accused was watching the obscene videos looking down at his mobile phone.
The Court opined that watching an obscene photo by a person in his privacy by itself is not an offence under Section 292 IPC. Similarly, watching an obscene video by a person from a mobile phone in his privacy is also not an offence under Section 292 IPC. If the accused is trying to circulate or distribute or publicly exhibit any obscene video or photos, then alone the offence under Section 292 IPC is attracted. In this case, even if the entire prosecution/state case is accepted, no offence under Section 292 IPC is made out against the accused.
The Court relied upon the judgment of Ramesh Krishnan vs State of Kerala, where the Court considered the scope of Section 292 (2) (a) IPC: “the allegation itself is that the film was exhibited in the residence of the 1st accused. In order to constitute an offence under Section 292(2)(a) IPC, it must be a case where the obscene object was sold, let on hire, distributed or publicly exhibited or put into circulation. Production or possession of the object for any of the above said purposes will also constitute an offence. Here, there is no allegation that the blue film was sold, let on hire or distributed or publicly exhibited. The film was being viewed only by accused 2 and 3 from the residence of the 1st accused. There is no allegation that the film was produced by any of the petitioners for purposes of distribution or circulation also. So, the acts alleged in the charge do not constitute an offence under sub-s. (2)(a) of S.292 IPC. If the prosecution had succeeded in finding the source of the film, possibly, the producer or in case it was sold or distributed, such a person who sold, distributed or put the film on circulation could have been prosecuted. That is not the case here. There is no scope for prosecuting the petitioners for the above said offence. The charge is liable to be quashed.”
In the light of the above principle laid down by the Court, the Court further opined that even if the entire allegations in the final report are accepted into, no offence under Section 292 IPC is made out against the petitioner. The single judge bench said: “I must remind the parents of minor children in our country. Watching pornography may not be an offence. But if minor children start to watch porn videos, which are now accessible in all mobile phones, there will be far reaching consequences. The innocent parents will give mobile phones to their minor children to make them happy. Instead of delicious food made by the mother and a cake cutting ceremony on birthdays of children, parents are giving mobile phones with internet access to their minor children as a gift on such occasions to make them happy. The parents should be aware of the danger behind it. Let the children watch informative news and videos from the mobile phones of their parents in their presence. Parents should never hand over mobile phones to minor children to make them happy and thereafter complete their daily routine works in their house allowing unsupervised use of mobile phones by children. Let the children play cricket or football or other games they like during their leisure time. That is necessary for a healthy young generation who are to become the beacons of hope of our nation in the future. Instead of purchasing food from restaurants through ‘swiggy’ and ‘zomato’, let the children taste the delicious food made by their mother and let the children play at playgrounds at that time and come back home to the mesmerizing smell of mother’s food. I leave it there to the wisdom of the parents of minor children of this society.”
In 2012, two ministers of the then BJP government in Karnataka were forced to resign after they were seen watching porn clips on their phones inside the state assembly. The ministers, Laxman Savadi and CC Patil, were later reinstated by the party after a probe cleared them of any wrongdoing. Savadi had denied watching porn in the assembly and said that he was “watching the footage to prepare for a discussion on the ill-effects of a rave party”.
In the same year, two BJP MLAs were caught watching porn in the Gujarat assembly. The two MLAs, Shankar Chaudhary and Jetha Bharwad, were viewing the obscene clipping on tablet and the matter was later brought to the notice of the Gujarat assembly speaker by a local reporter.
In March 2023, Tripura BJP MLA Jadav Lal Nath, was seen in a video allegedly watching porn on his mobile phone during the state assembly session. Nath, the MLA of Bagbassa constituency in North Tripura district, claimed obscene videos started playing on his phone when he received a call on it. The Opposition had demanded strict action against Nath. Nath said that he will accept whatever decision the chief minister and the party president take on the issue and claims that he did not play the video deliberately.
“In my opinion if an offence was committed by anyone whether he/she is a layman or any bureaucrat, the punishment should be the same. Like in the above discussion a 33-year-old man was arrested just because he was watching porn on his mobile in a public place and was prosecuted for the same. But the offence committed by that man doesn’t cover any criteria of 292 IPC so, the whole proceedings were quashed by the High Court. On the other hand, the same offence was committed by MLA or ministers in the assembly, but neither any FIR was lodged against them nor any proceedings were initiated against them. This practice should be avoided. Everyone should be equal in the eyes of law,” said Advocate Ashutosh Gupta from Lucknow on the matter.
—By Adarsh Kumar and India Legal Bureau