How Personal Pornography is Legal in India

by Nizami Begum Neelofar Khanum Hyderabadi

Much unnecessary confusion exists with regard to the legal status of erotica in India, largely as a result of vested interests in certain media circles. The fact is that the Indian legal system itself is very clear on whether pornography is illegal or not. Indian case law clearly states that pornography is totally legal as long as it is used only for one's own personal use, and not for sale or hire or for circulation.

Jagdish Chavla et al. vs. State of Rajasthan

According to this famous case, the bench ruled that personal possession of pornography was not illegal:
"7. A reading of Clause (a) of Sub-section (2) makes it clear that offence is committed if either someone sells, lets to hire, distributes, publicly exhibits, or in any manner puts into circulation, or he for purpose of sale, hire, distribution, public exhibition circulation, makes, produces or keeps in possession any obscene book, pamphlet, pa per, drawing, painting, representation or figure or any other obscene object. The mere possession of objectionable object is not the offence under Clause (a). It is offence only when someone has in possession such object for the purposes of sale, hire, distribute, public exhibits or circulation.

8. In the instant case, it is not the allegation of the prosecution that the petitioners were found selling or doing any other thing as to bring the case in the first part of Clause (a). For the second part of Clause (a), the prosecution has to show that the obscene material was made, produced or kept in possession for the purpose of sale, hire, distribution, public exhibition or circulation. In other words, the possession of the obscene object is punishable under Section 292, IPC if the possession is for the purpose of sale, hire, distribution public exhibition or circulation. If the obscene object is kept in a house and is not for sale, hire, public exhibition or circulation, the accused cannot be charged under Section 292, IPC. It is not the case for prosecution that the case falls under Clause (b), (c), (d) or (e) of Sub-section (2). Rather it was frankly conceded at the time of arguments that the case does not fall in Clauses (b), (c), (d) or (e)." - Jagdish Chavla et al vs. State of Rajasthan, 25 Feb. 1999.

V.Sundarrajan v. State of Tamil Nadu

Similar was the judgement in this case:
"9. Identical question arose before the Madras High Court in the case of V. Sundarrajan v. State of [Tamil Nadu] (Cri P. C. No. 376 of 1978) decided on 28-11- 79 which was a case under Section 292-A, IPC. Section 292-A is the State Amendment in Tamil Nadu. Clause (b) of Section 292-A, IPC is more or less same as Clause (a) of Sub-section (2) of Section 292, IPC. The learned Judge of the Madras High Court has held that if a blue film is found in the possession of the accused, he cannot be convicted simply on the ground of possession unless it is further proved that the purpose of keeping the same was selling or letting for hire. Clause (a) of Sub-section (2) of Section 292, IPC is all the more clear. Without proving the purpose of possession mentioned in the clause, a man cannot be convicted for the offence. That being so, the continuance of the proceedings against the petitioners shall be only abuse of the process of the Court. It is, therefore, deemed proper to quash the proceedings pending against the petitioners." - Jagdish Chavla et al. vs. State of Rajasthan, 25 Feb. 1999.
Hence, personal pornography is legal in India as long as one does not sell or let it out for hire.

Various Precautions

Note, however, that public cybercafes are often viewed as "public places", so that downloading pornography onto one's own personal machine at home is perfectly legal, but doing the same in a cybercafe would technically be of questionable legality. Hence, it is wise to refrain from downloading porn in a cybercafe.

Also, note that the word "circulation" can be interpreted to mean sending simple emails as well, and various media outlets have tried to harp on the fact that Indian law may technically forbid sending salacious emails of any kind. To protect oneself in this case, one can add a proper disclaimer at the bottom of each email sent, which should provide adequate protection.

References