THE TAMIL NADU NATIONAL LAW SCHOOL,

TIRUCHIRAPPALLI.
ACADEMIC SESSION:
2015-2016

CONSTITUTIONAL LAW-I PROJECT

SHOULD GOVERNMENT BAN PORNOGRAPIC

MATERIAL ON INTERNET
SUBMITTED TO:
MISS.Kanika Gauba
Asst. Professor.
TNNLS

Tiruchirappalli.

SUBMITTED BY:
PRANAV MUNDRA
ROLL NO. bc0140040
B,Com.LL.B(HONS.) sem-iii

Table Of Contents

ACKNOWLEDGEMENT..3

ARGUMENTS4

PRAYER11

ACKNOWLEDGEMENTS

At the outset, I take this opportunity to thank my Miss. Kanika Gauba from the bottom of my
heart who has been of immense help during moments of anxiety and torpidity while the
project was taking its crucial shape.
Secondly, I convey my deepest regards to the administrative staff of TNNLS who held the
project in high esteem by providing reliable information in the form of library infrastructure
and database connections in times of need.
Thirdly, the contribution made by my parents and friends by foregoing their precious time is
unforgettable and highly solicited. Their valuable advice and timely supervision paved the
way for the successful completion of this project. Hence as a student, I am extremely
grateful and forever deeply indebted to him.
Finally, I thank the Almighty who gave me the courage and stamina to confront all hurdles
during the making of this project. Words arent sufficient to acknowledge the tremendous
contributions of various people involved in this project--- as I know Words are Poor
Comforters. I once again wholeheartedly and earnestly thank all the people who were
involved directly or indirectly during this project making which helped me to come out with
flying colours.

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO.127 OF 2015

SHREYA SINGHAL

.........PETITIONER
VERSUS

UNION OF INDIA

..........RESPONDENT

MEMORIAL FROM THE SIDE OF RESPONDENT

ISSUE 1: Not an absolute BAN, INTERVENTION REASONABLE?

The major problem here is child pornography and sexual abuse of children. While websites and
newsgroups featuring child pornography may be of no subject of relevance, but it is one of the
most serious concern in our country. In most cases the production of this porn has involved child
abuse; in many cases, the users of such porn are interested in, and may well have indulged in
child abuse. As for sexual satisfaction, many groups involved with the welfare of children have
considerable case material of pedophiles using the net to make contact with, and arrange meeting
with, minors with a view to molestation. We cannot simply accept this as the price for freedom
of expression. The person who claims that intervention by government is unreasonable because it
violates the fundamental right of freedom of expression but according to Article 19(2) of Indian
constitution that government can impose reasonable ban in order to maintain "public order,
decency or morality". The government can still block such websites, but only if they concern
"public order".
The content that is there on porn sites relate to morality and decency and is, therefore, subject to
reasonable restrictions on the Fundamental Right to freedom of speech and expression. While
the individual is guaranteed this freedom under Article 19(1)(a) of the Constitution i.e all citizens
have right to freedom and speech,but Article 19(2) allows the state to impose reasonable
restrictions on its exercise in the interests of the sovereignty and integrity of India, public
order, decency or morality and porn leads to the breakdown of public order as in sexual content
accessed by children today is violent, brutal, and destructive which poses a threat to public
order, and puts society in danger.
For Instance, First, the two men arrested for raping the five-year-old in Delhi were watching
porn before they stepped out and abducted the girl. Thus, it is not unreasonable to conclude that
watching porn has the capacity to instill destructive and violent ideas in a person.1
Second, Google Trends shows that in 2012, New Delhi recorded the highest percentage
worldwide for the number of times the word porn was searched online. And National Crime
Records Bureau data for the same year show that 706 rapes were reported in Delhi, the highest

http://www.dailymail.co.uk/indiahome/indianews/article-2509509/Porn-sites-cause-crime-women-SupremeCourt-demands-immediate-action-create-porn-free-India.html

in the last decade and more than double the number for 2002." This shows that there is a relation
positive relationship between pornographic material and crimes and hence there must be a
reasonable restriction that is to be imposed on pornographic materials. 2
The Information Technology Act, 2000 Chapter XI, the Government of India clearly specifies
online pornography as a punishable offense.
In most countries like in U.K and in Europe mere possession of child pornography is a criminal
offence whether this occurs off-line or on-line and it is considered to be a reasonable
restriction by their respective government.
The Williams Committee (U.K) stated:
Few people would be prepared to take the risk where children are concerned and just as the law
recognizes that children should be protected against sexual behavior which they are too young to
properly consent to, it is almost universally agreed that this should apply to participation in child
pornography.3
By this the committee want to conclude that child pornography leads to child abuse and therefore
it must be banned as at that age children are too young to give their own consent. Indian
government also banned the child pornographic material as it leads to child abuse, leads to break
down of public order which is considered to be a reasonable restriction.
The intervention of government is necessary in banning pornographic materials, the intervention
must not be absolute but it must be in the lines of what has been done by Indian government,
who partially revoked an order to block hundreds of pornographic websites following an uproar
on social media, but the government ordered Internet service providers to shut down sites that
promote child pornography. This is a reasonable intervention done by the government in banning
pornographic material available online on internet

2
3

National Crime Records Bureau data

http://www.cyber-rights.org/reports/governan.htm

UK obscenity legislation has recently been amended by the Criminal Justice and Public Order
Act 1994 (CJPOA 1994) to deal with the specific problem of Internet pornography. The
following will show, however, that there are difficulties with the application of existing national
law to a medium such as the global Internet which does not have any borders.
The European Commission launched a Communication Paper on Illegal and Harmful Content
together with a Green Paper on the Protection of Minors and Human Dignity in Audio-visual and
Information Services in October 1996.The Communication Paper dating from early 1996.,
concerning the dissemination of illegal content on the Internet, especially child pornography The
European Parliament adopted a resolution about banning the child pornography following a
report of European commission. 4
So,if U.K can pass law to ban child pornography, European parliament can pass law to ban child
pornography and also according to research performed by the International Centre for Missing
& Exploited Children (ICMEC)out of 94 Interpol countries, 58 criminalized possession of child
pornography5 regardless of intent to distribute India can also pass a law to ban child pornography
as if it is considered a reasonable restriction in these countries, so in India also, banning child
pornography is a reasonable restriction.

4
5

http://www.cyber-rights.org/reports/governan.htm
//en.wikipedia.org/wiki/Laws_regarding_child_pornography

ISSUE 2: Is the BAN ILLEGAL?

Calling the ban absolutely illegal would be a grave error. As the ban that is imposed by the
government is in favour of women and children as for women, it will help to reduce crimes
against women as due to the porn materials published on the websites it instigates the men to
commit more of heinous crimes like rape, sexual harassment etc. and the ban is not illegal
because it is made mainly to ban child pornography as both children who are indulged in porn
related activities and also teens who are below 18 years of age watch these types of porns has a
great impact in the mind of the children. Instead of publishing these types of stuffs children can
be taught sex education in their school so that they wont get attracted to these kind of stuffs and
the ban that is imposed is not absolute, only the part detrimental to the Indian culture and Indian
society is being banned by the Indian government which is a valid restriction.
Secondly, The governments decision holds constitutional validity.
Since, according to Article 15(3) of Indian Constitution which is one of the fundamental right
states that nothing in article 15 shall prevent State from making special provisions relating to
women and children
Women and children requires special treatment on account of their very basic nature. Basic
nature of women means that the womens physical structure and the performance of maternal
functions place her under the disadvantage in the struggle for subsistence and her physical
welfare becomes the object of public interest and according to article 38 of Indian constitution
which is a directive principle for state which says that state can take necessary measures which
will help in public interest. But the step taken by state under article 15(3) must be of reasonable
reason i.e. it must have some objective which is in favor of women and children and will not
defeat the provisions of other articles in the constitution of India.

In a very famous case Yusuf Abdul Aziz Vs State Of Bombay, in which section 497 of IPC was
challenged that it punishes only man for adultery and exempts the women from punishment as
she may be equally guilty of the offence of adultery, court held that article 15(3) of Indian
constitution provides the special provision only for women and children and it does not require
the identical treatment as enjoyed by males. So court rejected the plea under article 15(3).6
Similarly, here the ban is not absolutely illegal as here also the government has imposed ban on
child pornography not banning the full pornographic material from the internet, this is supposed
to be a reasonable restriction taken by government as it will protect the interest of women and
children. Hence it shows that ban that is imposed by the government on pornographic material
has a constitutional validity under article 15(3) of Indian constitution.
Watching porn mostly instigates the men to commit crimes like rape, sexual harassment etc. In
the recent Delhi rape case the convicts watched porn before committing this crime, because
according to section 354 of IPC which states that whosoever assaults or uses any criminal force
to any women, intending to outrage or knowing it to be likely that he will thereby outrage her
modesty is punishable under IPC. So by banning porn it will in some little way help in the
declining of crimes against women.
Also, according to Indecent Representation of Women Act 1987, through any form of art,
pamphlet, paintings, books, representation or computer generated graphics; woman should not be
portrayed in such a manner which dents her modesty and porn generally dents the modesty of a
women. Any violation of the provisions of this stringent act is a criminal offence.
Apart from this, section 292 of IPC says that any form of art whether commercial or noncommercial shall be deemed obscene if it is lascivious to a persons prurient interests. The
government has imposed ban on child pornography, the person can watch porns in the four
walls of his house no one can stop him but if it will be published or portrayed it will be an
offence under section 292 of IPC. So, government should not only impose ban on child
pornography but also on publishing these kinds of stuff on websites.

AIR 1951 Bom 470, (1951) 53 BOMLR 736

In a 2008 Maharashtra incident where certain custom officers were arrested and charged for
obscenity but where later acquitted by the Bombay High Court. It was held that: Simply
viewing an obscene object is not an offence. It becomes an offence only when someone has in
possession such objects of the purposes of sale, hire, distribution or putting it in circulation. If
the obscene object is kept in a house for private viewing, the accused cant be charged for
obscenity.
So,the ban imposed by Indian government is legal according to article 15(3) and the offence is
punishable under section 354 of IPC.

10

PRAYER
In light of the facts stated, arguments advanced and authorities cited, the
Respondent, humbly prays before the Honorable Court, to be graciously pleased that:

1.The ban that is imposed is a reasonable intervention by the Government and it must be upheld.

2.The ban is legal in the eyes of law

Pranav Mundra
Counsel On Behalf Of Respondent

11