Is watching pornography in private illegal? What Kerala High Court said

Watching pornography in secret, without distributing or displaying it to others, will not be regarded an offence under the law as it is a matter of personal choice, the Kerala High Court noted in its recent judgment. The high court’s decision came as it dismissed criminal charges against a man who was caught by police under Section 292 after he was spotted standing on the side of a road watching porn on his mobile.

Justice PV Kunhikrishnan dismissed the charges, saying that such a conduct cannot be criminalised because it is a citizen’s private choice and interfering with it would violate that person’s right to privacy.  Let us take a closer look at the case and what Justice PV Kunhikrishnan said.

No offence for watching porn in private

“The question to be decided in this case is whether a person watching a porn video in his private time without exhibiting it to others amounts to an offence?

A court of law cannot declare that the same amounts to an offence for the simple reason that it is his private choice and interference with the same amounts to an intrusion of his privacy,” Justice PV Kunhikrishnan said while delivering the judgment.

The case pertains to a 33-year-old man who was back in 2016 caught by police while watching porn videos on his mobile phone on the roadside near the Aluva palace in Kochi.

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The order and ruling came on the accused person’s plea to cancel the FIR and the court proceedings against him in connection with that. The prosecution claimed that the accused was showing obscene content in public, which was illegal. The defence, on the other hand, argued that even if the claims were genuine, no crime had been committed because the accused was simply watching the videos in private, as per a report by Bar and Bench.

“I am of the considered opinion that watching an obscene photo by a person in his privacy by itself is not an offence under Section 292 (obscenity) of IPC. Similarly, watching an obscene video by a person from a mobile phone in his privacy is also not an offence under Section 292 IPC,” Justice Kunhikrishnan said.

“If the accused is trying to circulate or distribute or publicly exhibit any obscene video or photos, then the offence under Section 292 IPC is attracted,” he added.

Therefore, no offence under Section 292 of the IPC is made out against the accused, the court said, and cancelled all the proceedings in the magisterial court in connection with the case. The court also noted that there was no allegation that the petitioner (accused) publicly exhibited the video.

‘Internet has made it more accessible’

Justice Kunhikrishnan, while hearing the case, also stated that pornography was in practice for centuries and it is only that the internet has made it more accessible these days.

“Pornography has been in practice for centuries. The new digital age has made it more accessible than ever before and it is available even to children and adults at their fingertips,” the Court stated.

The court further underlined that, while sex between a man and a woman within marriage is acceptable, consenting sex between unmarried individuals is not illegal in India.

“But God designed sexuality as something for a man and a woman within marriage. It is not only a lust but also a matter of love and for having children too. But a male and female who have attained majority, doing sex with consent is not an offence.

“Consensual sex between a man and woman is not an offence in our country, if it is within their privacy. A court of law need not recognise consensual sex or watching of a porn video in privacy because these are within the domain of the will of society and the decision of legislature. The duty of the court is only to find out whether it amounts to an offence,” the judgment said, reports Bar and Bench.

Reminded parents of perils of children watching porn

At the same time, Justice Kunhikrishnan also cautioned parents against giving mobile phones with internet access to children to make them happy.

“The parents should be aware of the danger behind it. Let the children watch informative news and videos from the mobile phones of their parents in their presence.

“Parents should never hand over mobile phones to minor children to make them happy and thereafter complete their daily routine works in their house allowing unsupervised use of mobile phones by children,” the judge said.

Justice Kunhikrishnan said that if minor children end up watching porn videos, which are now accessible in all mobile phones, “there will be far reaching consequences”.

“Let the children play cricket or football or other games they like during their leisure time. That is necessary for a healthy young generation who are to become the beacons of hope of our nation in the future.

“Instead of purchasing food from restaurants through ‘swiggy’ and ‘zomato’, let the children taste the delicious food made by their mother and let the children play at playgrounds and come back home to the mesmerising smell of their mother’s food. I leave it there to the wisdom of the parents of minor children of this society,” the judge said.

With inputs from PTI