NEW DELHI: A statement by Bollywood actress Shilpa Shetty defending her husband Raj Kundra who has been arrested by Mumbai police for production and distribution of pornographic content has sparked a new debate. Shilpa told police that the movies available on Hotshot App owned by Kundra are erotica and not pornography. However, law enforcement agencies and legal experts differ from Shetty’s statement.
Shetty told the police that she wasn’t aware of the exact content of HotShots but claimed that she has nothing to do with the app either. She mentioned that erotica is different from porn and her husband Raj Kundra wasn’t involved in producing any kind of porn content.
She also stated that similar content is now available on various OTT platforms, some of which are even more obscene than what is available on Hotshot.
However, police have found nude and sex videos under the banner of HotShot app. These videos are also available on international porn and X-rated websites.
Raj Kundra was charged with cheating under Indian Penal Code (IPC) sections 420, 34 (common intention), 292, and 293 (related to obscene and indecent advertisements and displays), Sections 67, 67A (transmission of sexually explicit material) under the Information Technology Act and provisions of the Indecent Representation of Women (Prohibition) Act.
According to a senior officer investigating the case, if Kundra is found guilty he can be jailed for a maximum of 7 years. The officer explained maximum punishment in the cheating case goes up to seven years. Similarly, punishment under sections 292 and 293 of IPC also goes up to three years. There is a provision of five years of punishment under section 67A of IT Act. The Indecent Representation of Women (Prohibition) Act can get a punishment for upto two years.
Experts claim content on apps and OTT platforms are unregulated and does not take certification from governing body of the censor board.
“Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or tends to deprave and corrupt persons shall be punished,” said Prof Triveni Singh, Superintendent of Police, Uttar Pradesh. He added if someone is transmitting and distributing porn then it is a criminal offence.
Keeping the same view, Mumbai based cyber lawyer Prashant Mali said, “There is a huge difference between obscenity and pornography. Content on HotShot app was sexual in nature. Under section 67 A of IT one can be booked for transmitting or publishing sexually explicit act.”
However, Mali explained that it is not only HotShot which is in question but all apps transmitting explicit content like Ullu, Alt Balaji and personal apps of Poonam Pandey and Sherlyn Chopra are being examined by the law enforcement agencies as well.
“App-based content comes under online content so there is no regulator or censor board for the internet. The government has introduced a digital media ethics code for OTT but no one has complied with it. Currently, there is a grey area, watching porn in a private space is not a crime but publishing and transmitting is. Producers of such content are now defending it by saying that they are not telecasting it on a big screen but it is only available on mobile, that too on a subscription basis. So there is a loophole or a grey area in the law,” Mali said.
Citing “Sharat Babu Digumurti Case” Mali said accused in such a case can be charged only under the IT Act and not under the IPC, for offences arising out of the same actions.
What is the law for pornography:
When it comes to child pornography, not only is publication or transmission illegal but so is possession.
IT Act Section 67A amendment relates to electronic transmission of material containing sexually explicit acts. It seeks punishment for anyone who ‘publishes or transmits or causes to be published or transmitted in the electronic form’ any obscene material.
Meanwhile, Section 292 in the Indian Penal Code defines obscenity. It says whoever sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever.
This IPC section also makes making and distribution of such pornographic content punishable with three-year imprisonment on the first conviction and five-year jail on the second offence.
IPC Section 293 deals with making, selling or circulation of pornographic material among young persons, aged below 20.