Escort Website Block: How Outdated Ideas About Sex Shape Media Governance in India

November 2, 2016

BY SMARIKA KUMAR ON

With the Ministry of Home Affairs indicating that escort websites need to be blocked, India needs to aim for a more inclusive legal design for the Internet, one not driven merely by fear of recreational sex.

In June, an expert committee under the Ministry of Home Affairs recommended the blocking of some 240 websites offering female escort services. The block came in the wake of an order by a Mumbai magistrate, which raised the concern that websites offering escort services actually facilitate sex work and pimping in the guise of offering such services. In this manner, once again, content on internet is sought to be censored for the “protection” of “vulnerable groups” like women and children.

This isn’t the first time such an attempt has been made. Readers will remember the Kamlesh Vaswani petition brought before the Supreme Court in 2013, which sought to ban pornography on Indian web and had most free speech activists with their panties in a twist and most free speech activists and feminists at least a tad confused.

The common thread in both these attempts to censor the web, of course, is sex (be it either porn or prostitution- consentless or consentful- sex always feels a bit salacious). And this is where one begins to wonder: What really is so discomfiting about sexual expression or about expression hinting at the sexual that it always has lawmakers rushing to shut it down, and that it always leaves regular thinking joes like us torn between protecting women from exploitation and protesting against the state’s intrusion into our expressive qualities?

Nevertheless, howsoever uncomfortable the taboo topic of sex might be, it has already been well argued why employing the mechanism of website blocking under the Information Technology Rules, 2009 (popularly, “The Blocking Rules”) is a legally unsound strategy. But what I want to do is poke at the question of what is so compelling about sexual content on the internet which provokes the state to make it as inaccessible as possible? Because even if one discounts The Blocking Rules, there still exists Section 67 of the Information Technology Act, 2000 that is often used to book people for transmitting sexual content and for advertising escort and entertainment services on the Internet (see for example, thisand this).

It runs as follows: “Punishment for publishing or transmitting obscene material in electronic form. -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 if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.”

All this in effect implies that sexual material in human expression, which can only be surmised in 19th century Victorian vocabulary such as  “lascivious” and “prurient” tends to deprave and corrupt persons and when published or transmitted in “electronic form” must be punished quite severely. But why in electronic form, and why on the Internet? Or, what is different about sexual expression on the internet that it is sought to be so specifically curbed by Section 67?

Online sexual expression

To answer that question quite simply, nothing much. Sex has always been scary subject in legal design, irrespective of media technology it is transmitted on. From print to film to now the Internet, obscenity, which may loosely translate to a “purposeless” depiction of sex, sexual expression has a history of regulation which is probably as old as the taboo-isation of sex itself. But let’s stay in our heady, modern times and sample this: Section 67 of the Information Technology Act is modelled largely on Section 292 of the Indian Penal Code enacted in 1860 which reads that a publication shall be deemed to be criminally obscene if “it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt person, who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.”

How exactly this particular section is to be interpreted has been clarified and evolved through various judgments that independent India has seen over the decades. But what all these interpretations have in common is their underlying fear of the possibilities of recreational sex. The year 1964, for example, saw the judgment of the Supreme Court in Ranjit Udeshi v. Union of India where the fear of the depiction of sex without purpose led to the ban of the noted writer, D.H. Lawrence’s book, Lady Chatterley’s Lover from this country’s bookshelves. A relevant part of that judgment reads:

“In our opinion, the test to adopt in our country (regard being had to our community mores) is that obscenity without a preponderating social purpose or profit cannot have the constitutional protection of free speech and expression, and obscenity is treating sex in a manner appealing to the carnal side of human nature, or having that tendency.”

In this manner, obscenity or a depiction of sex in print “without a preponderating social purpose or profit” (which is what recreational sex is about), has been deemed to not fall under the constitutional realm of free expression. One can come to film and even a completely different outcome (viz. a decision to not censor), to find only a similar fear of recreational sex moulding legal principles. 1996, which saw the Supreme Court declaring (in Bobby Art International v. Om Pal Singh Hoon), that scenes of nudity and rape in the film, Bandit Queen would be protected under the constitutional right to freedom and expression, is an excellent example of this phenomenon. The judgment explains its rationale as follows:

Bandit Queen tells a powerful human story and to that story the scene of Phoolan Devi’s enforced naked parade is central. It helps to explain why Phoolan Devi became what she did…”

The key phrase here is “helps to explain”- it is only because the depiction of nudity in this cinematic media serves as a tool to explain what the judgment later calls “the consequences of a social evil” that it is allowed protection as free expression under the Constitution. In other words, it is because the relevant “obscenity” is “purposeful” that the film’s sexually suggestive scenes become lawful…It is because the depiction of sex in the movie is not merely recreational, but actually serves a larger illustrative point of use to (a certain formulation of) society that it becomes acceptable in law.

Unfreedom even in the Internet age

All this has been about depictions in media, of sexual content, in general. But what is the peculiar position that advertisements for escort services on the Internet occupy? As per the unspoken rationale of the ban order, escort services advertisements on the Web hint at “solicitation” under the Immoral Traffic (Prevention) Act, 1956 and therefore may be justifiably blocked. A sense of what “solicitation” might mean here can be derived from the wording of Section 8 of the Act: It refers to the act whereby a person in or within sight of a public place “tempts or endeavours to tempt, or attracts or endeavours to attract the attention of, any person for the purpose of prostitution.”

So in effect, the blocking order is an attempt to prevent solicitation for the purpose of prostitution.

Now, the word “prostitution” has a long history imbued in the negative, and it is in the context of this negative connotation that the construction of the Immoral Traffic (Prevention) Act can be located. This negative connotation arises from the understanding of sex work inherently as victimization and debasement of women. What the Immoral Traffic (Prevention) Act then does is conflate the concept of trafficking with sex work, because it chooses to wallow in the negative historical baggage of the word “prostitution.” The statement of objective of the Act lays down that it is enacted “for the prevention of immoral traffic,” yet in its provisions, it is “prostitution” that is sought to be prevented.  This is because the Act assumes that all sex work and related solicitation arises out of trafficking, or happens without consent, or is forced. Through this process of conflation of sex work and trafficking, the legitimacy of sex work is denied.

What is the world-view which allows for such conflation? It is certainly rooted in the lack of possibility of recreational sex that allows for equal voluntary participation of both actors within it. If one views recreational sex as an act which is inherently and always abhorrent to women, one can only perceive women who engage in recreational sex, or sex work, as victims. In this world view they are not equal participants in sex, and therefore cannot ever be given the recognition of dignified labour.

This world-view about sexual relationships is of course, is deep rooted not just in our everyday thinking but consequently, also in our laws. And it is on the basis of this very world view that the ban on escort websites on the Internet is sought. The question then is why are we bent on repeating the same narrative of the impossibility of recreational sex – a narrative which not only strips women of their sexual desires and derides their creative labour as sex workers, but also only ever manages to paint women as victims and never as mindful actors whenever the topic of sex comes up- even on a new media like the Internet?

When I ask this question, I am not at all trying to state that all sex work is voluntary, un-coerced or divorced from trafficking. And I am not trying to deny the exploitative experiences of women who actually have to face trafficking and prostitution, and I am not trying to deny the existence of those stories either. But what I am trying to do is provoke thought about how sound is the approach which law takes in designing solutions for these exploitative experiences. The approach of blocking escort websites, for example, very much follows the spirit of the Immoral Traffic (Prevention) Act in reinforcing the same world-view about sexual relationships — a world-view without the possibility of joyful, recreational sex — which is the same world-view that makes the exploitation of female sex workers lucrative in the first place through a denial of their labour.

This being the 21st century, shouldn’t we aim for a more inclusive legal design for the Internet- one not driven merely by fear of recreational sex? But also a legal design which actually offers a solution for exploitation of women’s labour by addressing the most fundamental cause (a cause which is social in nature), viz. exploitative sexual mores, rather than getting sidetracked by the idea of a “problematic technology” which only promotes immorality?

Smarika Kumar is an independent legal researcher and was formerly with the Alternative Law Forum, Bangalore.