Kamlesh Vaswani, a lawyer based in Indore, Madhya Pradesh, is very conscious of his recently acquired fame.
“You were not here when all the media channels were talking to me?” he says, flashing a bunch of business cards of journalists. “It was maddening.”
Vaswani looks unremarkable, a short man in a black lawyer’s robe, sitting on the lawn of the Supreme Court (SC). But his public interest litigation (PIL) has provoked a firestorm of activity, with the Supreme Court sending notices to three Union Ministries seeking their responses on banning pornography online. The result: a renewed debate on laws governing online content in India.
Vaswani has said he has received a large amount of support. Naresh Sharma/ Firstpost
Vaswani’s PIL demands the enactment of a separate law to deal with pornography. The PIL notes that that the Internet law (Information Technology Act, 2000) has remained ineffective in curbing the circulation and viewing of porn.
He wants watching and sharing of porn videos-”which affects the peace of mind, health and wellness” to be made a non- bailable and cognizable offence. The PIL, which is a first in his thirteen-year-long career as a professional lawyer, underlines the easy availability of pornographic material in huge quantities.
Production and transmission of obscene material is presently an offence under the Indian Penal Code and the IT Act (section 67, 67A). The latter stipulates three years imprisonment for circulating obscene material electronically. The IT Act also includes a provision for blocking sites- a private citizen can submit a request with the concerned department in the Ministry of Communication and Information Technology. If the department finds merit in the case, the mentioned sites/ URLs are blocked and a committee regularly reviews the blocked list.
But there is no law that pertains to viewing pornography, which is not considered an offence under current law. And it is this loophole that the PIL hopes to plug.
“Even for private viewing, you have to differentiate between the content: what is allowed and what is not. I cannot allow unlimited access to anything and everything,” says Vaswani.
The lawyer is unable to classify content into obscene, vulgar and porn himself.
“That’s what I am fighting for. A clear definition of obscenity,” he said.
In previous cases, courts have refused to direct the government to pass a blanket ban on porn websites. In Janhit Manch Vs Union of India case, the Bombay High Court did not favour ban on all such sites and directed the petitioner to lodge a complaint under the Internet law which deals with online content.
“Courts in such matters, the guardian of the freedom of free speech, and more so a constitutional court should not embark on an exercise to direct State Authorities to monitor websites. If such an exercise is done, then a party aggrieved depending on the sensibilities of persons whose views may differ on what is morally degrading or prurient will be sitting in judgment, even before the aggrieved person can lead his evidence and a competent court decides the issue,” ruled the Court.
While the IT Act allows a private citizen to move the Ministry of IT to block sites, Vaswani’s understanding is that only a government officer can lodge a complaint.
However, Vaswani still believes that he has a strong case.
“The court might have passed orders safeguarding the freedom of free speech and expression. What we are discussing here is not speech, but conduct. This cultural pollution has to stop,” he said.
The lawyer believes that the proliferation of low-cost mobile phones that can access the internet has made pornography widely available. The sight of boys in local buses with eyes glued to their phone screens for hours, disturbs him.
“What do you think are they doing? I don’t think they are exchanging emails or doing some serious work,” he said.
Vaswani is also outraged by the increasingly violent and explicit nature of pornography available to Indian consumers. Child pornography, explicit video games, sites giving instructions on how to gang-rape, he says makes him concerned about his ten-year-old son.
“I will withdraw my petition. But will you give me guarantee that once kids have access to Internet, they will not consume and not try to imitate what is shown in these videos?” he asked.
And despite the sites being around for years, it was the December 2012 Delhi gang-rape finally inspired Vaswani’s to action.
“The following day, I started drafting the petition,” he said.
Vaswani moved the apex court, bypassing the Indore district court, because he believes that matter pertains to the ‘whole of India’- an issue for which one can directly approach the Supreme Court.
Apart from the compliments pouring in from other senior lawyers, Vaswani is encouraged by the cases of China and Saudi Arabia which have banned pornography entirely — though neither are democracies.
‘It is just a matter of will,” he said.
