Raj Kundra case: Erotica is expression, but porn is exploitation, say cyber experts

Even as Raj Kundra’s defence lawyer says what content bizman has been arrested for is not ‘pornographic,’ cyber law experts say that the difference between ‘what’s obscene and what’s not’ is perception, and is always open to interpretation

The videos were erotica, not porn,” actor Shilpa Shetty and wife of British-Indian businessman Raj Kundra, arrested in connection with the pornography film case, is said to have told investigating officials who recorded her statement on Friday.

Shetty’s stance and that of Kundra’s defence lawyer Abad Ponda, who has rubbished police claims of the businessman churning out sexually explicit content, has stoked fresh controversy about the legality of erotica and porn. 

During the last couple of years, the rise of OTT platforms, which for long escaped censorship and regulation rules, led to a growing and emerging market for erotic content. It’s only in November 2020 that these platforms were brought within the purview of the Ministry of Information and Broadcasting, empowering the government to “block, filter and take down content online” or even turn off internet access completely.

Investigation officer Kiran Bidve said that the police has recovered several film scripts, which established that the motive behind the shoots were to make porn clips

Kundra has been accused of creating pornographic films, which were sent to London-based company Kenrin Limited, owned by his brother-in-law Pradeep Bakshi. Joint Commissioner of Police (Crime) Milind Bharambe had said that the videos were sent to London via WeTransfer, as the same could not be uploaded from India on the mobile app Hotshot, and taken down by Apple and Google Playstore in 2020, due to pornographic content on the platform.

While investigations are still on, cyber experts believe that a video cannot be dubbed as porn, unless it meets certain criteria. And the line differentiating erotica and porn is fine. 

Nirali Bhatia, a cyber-psychologist and psychotherapist describes erotica as a form of art. “It emphasises on the aesthetics and storytelling around sexual themes, while depicting human sexuality.” 
Pornography’s objective, on the other hand, is to depict sexually explicit scenes to sexually arouse the person, who is watching it. This also makes such a difference a subjective one, because it’s entirely based on the viewers’ perception. 

“The classic example of erotica are the stone sculptures at the Khajuraho temples, which have an aesthetic binding and serve an educational purpose to understand the human sexuality,” says Bhatia.

Nirali Bhatia, a cyber-psychologist and psychotherapist says that unlike erotica, pornography’s intent is to depict sexually explicit scenes to arouse the person, who is watching it

A more accurate word to refer to pornography is obscenity, says Advocate Vaishali Bhagwat, cyber lawyer. “The ambiguity as to whether any content is obscene or otherwise, and in violation of any law prevalent at the time was cleared by the Supreme Court in 1965 in connection with the case against author DH Lawrence’s Lady Chatterley’s Lover, which had been banned in India,” she says. At the time, it was held that the word obscene was only to be used in relation with content that is intended to arouse sexual desire and is so gross that it has the “tendency to deprave and corrupt those whose minds are open to such immoral influences”. “The Supreme Court held that while applying the test of obscenity it has to be borne in mind that when obscenity and art are mixed, art must dominate as to throw the obscenity into a shadow or [make] the obscenity so trivial and insignificant that it can have no effect and may be overlooked.”

Bhagwat says that every individual in India enjoys the freedom of expression, even when creating content that includes sex and nudity as an art form. But, “when nudity is presented in a manner that violates the test or sense of public decency or morality”, the abuse of law cannot be ignored.

What makes pornography most problematic is the business angle to it. “Erotica is expression, whereas porn is exploitation. It is mainly content production [meant] for sale,” says Bhatia. 

This means that if sexually explicit content is distributed, uploaded or downloaded on the Internet, it is a penal offence as per Section 67 of the Information Technology Act. “But the word ‘creation’ is not mentioned under the Act, which makes it a grey area,” says cyber lawyer Puneet Bhasin.

A classic example of erotica, say experts, are the stone sculptures at the Khajuraho temples, which have an aesthetic binding and serve an educational purpose to understand the human sexuality

In the FIR filed by the crime branch, Kundra has been slapped with Section 67 and 67A of the IT Act. But, his lawyer Ponda has argued that Section 67A, a non-bailable offence, did not apply in the case. “The videos and photographs mentioned in the chargesheet fall under the category of ‘ashleel’ [obscene]; the chargesheet itself says so. I have seen the photographs and videos, and there is no sexual penetration, and hence, this can’t be considered as pornography,” Ponda had said in the court on Friday. While investigation officer Kiran Bidve said that the police has recovered several film scripts, which established that the motive behind the shoots were to make porn clips, he didn’t counter the defence on sexual penetration not being seen in the videos. “There are multiple scripts in Hindi, included in the chargesheet, and one can read them to get more clarity on whether there was any sexual penetration. The court will decide.”

However, according to the Mumbai crime branch, the case is not about pornography alone. There are victims who have come forward alleging they were cheated and forced to do pornographic acts on the pretext of being provided roles on leading OTT platforms. “We are not getting into the argument of erotica and pornography because we have already filed a chargesheet, and the court has taken cognisance of the same. In the chargesheet, we have clearly mentioned that the porn films were shared in public domain by luring aspiring actors,” said a senior crime branch officer, on condition of anonymity.

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