The Right to Watch Pornography: Upholding Individual Freedoms and Privacy Rights

The right to watch pornography has been a contentious issue in various societies, including India. The debate revolves around striking a balance between individual freedom of expression and the need to protect public morals and decency. This article explores why the ban on watching pornography is considered unconstitutional in India, highlighting key arguments and landmark legal cases that have shaped this perspective.

1. The Indian Constitution and Freedom of Expression: The Indian Constitution, under Article 19(1)(a), grants its citizens the fundamental right to freedom of speech and expression. This provision ensures that individuals can express their ideas, thoughts, and preferences freely without undue interference from the state. The right to freedom of expression is vital for a functioning democracy, as it encourages the exchange of diverse viewpoints and fosters open dialogue on various subjects, even those deemed controversial. However, this right is not absolute, and certain restrictions can be imposed under Article 19(2) to protect public order, morality, and decency.

2. The Right to Watch Pornography in India: The legality of watching pornography in India has been the subject of several legal battles. While some argue that watching pornography is a personal choice and falls within the ambit of the right to privacy, others assert that it can lead to harmful consequences and moral degradation.

3. The Obscenity Test: The Supreme Court of India has devised the "Hicklin test" to determine obscenity. According to this test, any material will be considered obscene if it has the tendency to deprave and corrupt those whose minds are open to such immoral influences. However, this test was replaced by the "community standards" test in Ranjit Udeshi v. State of Maharashtra (1965), which takes into account contemporary societal norms in deciding obscenity.

4. The Case of Aveek Sarkar v. State of West Bengal (2014): In this case, the Supreme Court held that adult citizens have the fundamental right to choose their entertainment, and watching pornography in private would not amount to a criminal offense. The court emphasized that obscenity should be determined based on the effect it has on a reasonable adult viewer rather than applying a strict Hicklin test. The court emphasized that personal autonomy and individual freedom should be respected, as long as such choices do not infringe upon the rights of others or violate any existing laws.

5. The Case of Kamlesh Vaswani v. Union of India (2015): In this case, the petitioner sought a ban on pornographic websites, arguing that they promote sexual violence and lead to an increase in crime against women. However, the Supreme Court upheld the right to watch pornography in private and stated that banning pornography entirely would violate individual freedom of choice. The Constitution of India does not explicitly mention the right to privacy, but it has been recognized as an inherent aspect of several fundamental rights, including the right to life and personal liberty (Article 21). The Supreme Court of India, in the landmark judgement of Justice K.S. Puttaswamy (Retd.) v. Union of India (2017), declared that the right to privacy is a fundamental right under the Constitution. This landmark ruling affirmed that individuals have a right to make private choices and decisions without unnecessary state interference.

6. The Case of Sabu Mathew George v. Union of India (2015): In this case, the petitioner sought a ban on child pornography and stricter regulations on online pornography. The Supreme Court directed the government to take measures to curb child pornography but upheld the right of adults to watch pornography in private. A complete ban on watching pornography is widely considered unconstitutional as it infringes upon both the right to freedom of expression and the right to privacy. The right to watch pornography, when done in private and without violating any other laws, is viewed as an individual's personal choice and expression of their sexuality.

Conclusion

The right to watch pornography in India has been a topic of intense legal scrutiny. While the Indian Constitution guarantees the right to freedom of expression, it is not absolute and subject to reasonable restrictions. The judiciary, through various case laws, has upheld the right of adults to watch pornography in private while taking measures to protect children from exposure to explicit content. Courts have consistently emphasized that blanket bans on watching pornography are not the solution to address concerns related to obscenity or moral degradation. Instead, they advocate for measures that focus on protecting minors from exposure to explicit content and implementing stricter laws against child pornography. Striking a balance between individual rights and societal concerns remains a delicate task, and the debate on this issue will likely continue in the future. Balancing individual liberties with societal interests is a complex task, and the judiciary's role in upholding the Constitution's spirit is crucial in ensuring a just and democratic society.