How to enforce it
Seeking the government’s response, he had termed any such ban to be violation of the Constitution’s Article 21 that ensures an individual’s personal liberty. But the government has acted with alacrity,
The Union Government’s crackdown on pornography by banning 857 websites has once again triggered a debate on Internet freedom and its limits. Desirable, since viewing of such sites is not restricted to the adults, it has also raised fears about an attack on personal freedom. Only last month, Chief Justice H L Dattu, while hearing a petition, had observed: “How can court restrain an adult from watching pornography within the four walls of a room?”
Seeking the government’s response, he had termed any such ban to be violation of the Constitution’s Article 21 that ensures an individual’s personal liberty. But the government has acted with alacrity, sending that response and immediately issuing the gag order. The critics of the ban order argue that the government displayed its preference for conservatism over personal liberty.
Each government of the day has sought to curb obscenity in print, like banning “Lady Chatterley’s Lover”. The court, too had acted, like the 1960s conviction of the late editor R K Karanjia for publishing a picture of model Pamela Tiffin. These orders received mixed public response. The new action obviously is receiving similar response.
The gender-segregated society has surreptitiously viewed ‘’Kokshastra” and “Mastram”. These have flourished on the sly, co-existing with the ban that is lax in being enforced. The real issue, as CJI said, how does one control what a person does within the confines of a home? The issue has become more complicated with the advent of the Internet and changing social and religious mores, and not just in India.
The new urgency is propelled by the rising pornographic content on the websites that are not regulated. India has the second largest number of internet users after China. Social media and smartphone use is growing rapidly. The apex court had in 1995 (Khoday Distilleries Ltd. and Ors. v. State of Karnataka and Ors.) held that there is no fundamental right to carry on business of exhibiting and publishing pornographic or obscene films and literature.
Section 67 of the IT Act bans "publishing obscene information in electronic form". Obviously, past court verdicts and specific ban prescribed in Chapter XI, Para 67 or The Information Technology Act, 2000 (IT Act), coupled with the Indian Penal Code, 1860 section 293 that makes sale of obscene objects to minors punishable, have not sufficed.
The government having acted, it will be watched with great concern how it plans to enforce it. What constitutes pornography is a subjective issue, but even accepting its present definition, the next question is: who will enforce it and how? Ideally, it should be through a regulatory authority constituted through an Act of Parliament, like other such bodies regulating the Internet, the telecom and the Right to Information.
It should be manned by personnel who are sufficiently objective, and not neither lurching towards ultra-conservatism nor so-called modernism. In a globalised world, dealing with issues that cover morality and freedom, like security versus freedom, require mature handling. Freedom cannot be absolute. Constitution permits reasonable restrictions. How and who defines it is the moot point. Will the regime of bans stop here or would it extend to anything and everything on Internet is the legitimate concern?