Actor Shilpa Shetty’s Hus Raj Kundra's arrest in porn film case and law relating to pornography in india.

By Adv sudheesh s kumar -

 

Actor Shilpa Shetty’s husband Raj Kundra has been arrested for allegedly being a ‘key conspirator’ in a case pertaining to pornographic films. Here’s what the laws say.

The allegations against Kundra involve forming a company to develop ‘Hotshots’, a mobile application allegedly used to publish porn,  supervising its functioning and monetary dealings through WhatsApp groups, setting up another company to protect Hotshots’ videos from piracy, and having suspiciously large global transfers in bank accounts. 

In india three Acts mainly cover the subject of pornography:

1. Information Technology (IT) Act ,2000
2. Indian penal code
3. Protection of children from sexual offences (POCSO) Act, 2012.

In india watching porn in your private room or space is not illegal. As we all know the Article 21 gives the fundamental right to life and personal liberty. The Supreme Court in the july 2015 orally remarked in a case that watching porn in a private room may fall under the right to personal liberty given under constitution.

However, watching or storing pornographic content which depicts child pornography or rape or violence against women is an offence even if it is in a private room or space.

Then why was Raj Kundra has been arrested?

The allegations  against Raj Kundra were of making and circulation of pornographic content through 'Hotshot' and WhatsApp

Section 67 of IT Act  makes it illegal to publish or transmit “obscene material” in electronic form. This material, it says, can be anything which is “lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt” people who watch it, read or hear it. Anybody who does this can be punished with a three-year jail term along with Rs 5 lakh as fine.

Section 67A of the IT Act provides the punishment for publishing or transmitting material containing sexually explicit acts, etc., in electronic form. Anyone who “publishes or transmits or causes to be published or transmitted” any sexually explicit material can be punished with a jail term of five years along with Rs 10 lakh as fine.

Also, Section 292 and 293 of IPC makes it illegal to sell, distribute and exhibit or circulate obscene objects or materials. Section 294 makes it a crime to do any obscene act or sing obscene songs in any public place.

India's  approach towards child pornography :

India has taken strict stance against child pornography.When it comes to child pornography, it isn’t just publication or transmission, but also possession that is illegal under the law. 

The 2018 porn ban was triggered by the brutal incidents of four boys that gang raped a 16 year old girl after taking her to a store room by making false inducements regarding preparations of independence day celebration at school.  During interrogation one of the boy said to the police that the idea of rape came to him after watching porn on his phone.

Considering  the adverse effects of porn on young minds , the law declared child pornography as illegal and punishable crime.

Section 14 of the POCSO Act 2012 makes it a crime to “use a child or children for pornographic purposes”, with a punishment of at least five years jail term with fine.

Section 15 of the POCSO Act also makes it illegal to store or possess child pornography “for transmitting or propagating or displaying or distributing” it in any manner.  The only exception to this is storing or possessing pornographic material for reporting it to the authorities or for using it as evidence in court.

Section 15 also provides for an enhanced punishment of three to five years imprisonment for anyone who stores or possesses child pornography for commercial purposes.

Also, Section 67B of the IT Act makes it punishable for anyone to publish or transmit material depicting children in sexually explicit acts in electronic form. So  creating text , digital images or collecting, browsing, downloading, advertising, promoting, exchanging or distributing any material that depicts children in “obscene or indecent or sexually explicit manner” is also prohibited.




I am a Legal professional - practicing as a counsel before the High Court of Kerala and the Trial Courts Mainly in Kottayam Zone. I graduated with a bachelor’s degree in Bachelor of Commerce from Mahatma Gandhi University (2014-17) and a bachelor’s degree in law from University of Calicut (2018-21). From November 2021 onwards till July 2022 , I was a Junior trainee at the Firm Tharakan and George Associates. Now I am an Associate Litigator at Tharakan and George Associates. Civil Commercial litigation, Consumer Litigation , Drafting of Legal Documents , Preparation of Title deeds , Registration of Firms and Society are my primary areas of practice. Opinions expressed by me here are in my personal capacity, and may not be conclusive. My LinkedIn profile is available at https://www.linkedin.com/in/adv-sudheesh-s-kumar-632977234/

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