06/08/2015 2:07 PM IST | Updated 15/07/2016 8:25 AM IST

Why Porn Ban Could Backfire On The Government

Sans the superfluous details, here is how the plot has unfolded so far. In 2013, a public interest litigation (PIL) was filed in the Hon'ble Supreme Court of India seeking a ban on pornographic websites. Since the matter is sub-judice, one must comment on it carefully and responsibly. If media reports are to be believed the apex court's views expressed as part of judicial deliberations so far have vacillated between banning the websites to respecting the individual's right to watch pornographic websites in private.

It is also pertinent to note that as per media reports regarding another matter pending before the Hon'ble Supreme Court involving Aadhaar, the government has argued that there is no fundamental right to privacy. Amidst all these developments, the government sought to ban some 857 websites, which apparently also include some websites with non-pornographic content. This ban has now been lifted in name, although internet service providers have been given the onerous task of enabling sites that do not contain child pornography.

"The transformation from communal to individual society is being overseen by a weak state whose police force is yet to respect and protect individual freedoms."

Whilst a complete ban on child pornography is absolutely justified, in my view the following specific issues need closer examination while dealing with other forms/aspects of pornography:

a. Can a citizen by way of writ petition seek to curb other citizens' rights, including the right to freedom of speech and expression and right to privacy?

b. Is there a causal connection between pornography and crime against women and children? Can that connection be established as part of judicial proceedings and an adequate framework be created for ban/regulation/monitoring of pornographic content?

c. Should all forms of pornography be banned, regulated or monitored?

d. Can the government arbitrarily ban 857 websites without following due process?

e. Is access to pornographic content part of freedom of speech of expression under Article 19 of the Constitution of India, which is subject to reasonable restriction, or right to privacy under Article 21's Right to Life? Does the ban amount to reasonable restriction? Can there be tranches of rights under Right to Life, some of which may be subject to reasonable restriction, or by the virtue of being read under Right to Life a right becomes absolute?

Even if we were to sidestep the aforesaid legal issues, it is bewildering to think that an online ban can work in the present day and age. It is basic human nature that anything that is forbidden becomes all the more alluring. Apart from antagonising the citizenry, such a ban would achieve precious little. I fail to understand the governance perspective behind the ban. Does the government really believe that the ban would be workable, leave alone effective? Would it really bring down crimes against women and children? If the government has conducted any credible study in this regard, it should share the same with the citizenry in order to legitimise the ban. Right now the ban only serves to increase state's hegemony, not citizens' safety. The purpose of the state at best can be to protect the life and liberty of citizens. History bears witness that bans serve neither.

Even from a cynical point of view, the government's stance on pornography is likely to backfire. Satire X< -- the time-tested account of morality and value systems -- duly notes that a government failing to tackle real issues distracts its citizenry by bread and circuses (in these times, subsidies and spectacles). It is ironical that the present day government, which has done the most in order to rationalise subsidies is willing to earn the ire of the citizens by curbing non-state sponsored circuses. It will only focus the spotlight more on any shortfalls in governance. If there ever was a self-goal, this ought to be one.

"Pornography is not an issue of governance. The writ of courts and kings are perhaps best served and obeyed outside the four walls of the bedroom..."

I believe that the call for a ban fundamentally misjudged the issues involved. India today stands at a cultural and sociological crossroads, where the traditional norms of community and morality have been irretrievably broken but the liberal state required to replace them has yet not come into shape. India hitherto did not see the alarming rise in ghastly crimes against women despite a weak state because a vibrant society compensated for the state's weakness. Growing up in small town India, notions of morality and propriety were as much enforced by parents as they were by teachers and neighbours. That India no longer exists. The transformation from communal to individual society is being overseen by a weak state whose police force is yet to respect and protect individual freedoms. This weak state as part of its knee-jerk reaction is seeking to cover up its police failures by curbing individual freedoms.

Nietzsche proclaimed that morality was developed by "weak" people in order to defend themselves from the "strong". Regardless of one's personal comfort or discomfort with that assertion, we can agree that law serving as a tool for moral reconstruction and social engineering without safeguards is a dangerous development. I wouldn't side with the alarmists who are raising the bogey of "Talibanisation" or "saffronisation" but I would certainly advise the decision makers that they have finite resources, time and goodwill. The nation is expectantly looking at them to deliver on issues that matter- -- economic development, security, health, education. Pornography is not an issue of governance. The writ of courts and kings are perhaps best served and obeyed outside the four walls of the bedroom...

(The views expressed are personal.)