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IPC Section 377 and Publishing Explicit Content

In India, the legality of publishing explicit content hinges on three factors : obscenity, privacy, and consent.

Focusing on consent in the wake of the IPC Section 377 judgment:

Without the consent of persons featuring in explicit content, it is generally illegal to film, photograph or otherwise record such content, or to disseminate it in any manner. An exception to this general rule (which makes legal recording and disseminating more difficult) is indicated by Section 377 of the Indian Penal Code which criminalises 'carnal inter­course against the order of nature with any man, woman or animal'. This Section makes the acts which fall within its scope illegal, so it follows that regardless of the consent of those who engage in such acts, it would be very questionably legal to disseminate content featuring the acts as they are illegal and engaging in them cannot be legalised by consent.

Except for a brief interval from 2009 to 2013, since the time it was introduced into the Indian corpus juris by the British, IPC Section 377 has criminalised all sex other than possibly procreative M/F sex. There was some confusion brought in by the 2013 amendment to the Indian Penal Code which, through an amendment to the definition of rape in Section 375, suggested that non-procreative M/F sex could be considered non-criminal if it was engaged in with the consent of the woman involved. However, all M/M and F/F sex continued to be considered criminal by virtue of Section 377 of the Code.

There has never been any explicit statutory hierarchy or separation between IPC Sections 375 dealing with rape and 377 dealing with supposedly unnatural acts, so the interaction of the two provisions remains in need of judicial clarification.

What has changed, however, is that on September 6, 2018, the Supreme Court read down IPC Section 377 with the effect of decriminalising sexual relations between consenting adults. Although, in reference to the overlap with IPC Section 375, the judgment isn't entirely clear, it is clear that consensual homosexual acts have ceased to be criminal.

This subtly changes the law on the legality of publishing explicit content featuring homosexual acts. Since the acts themselves are no longer illegal, the barriers to publishing content featuring them have been lowered, and it would likely be easier to consent to the their being recorded and, possibly, if one were a participant, monetised through dissemination.

The details of how the how the 'new' law will be applied remain to be seen. As I'd argued in a piece over at Scroll:

"Decriminalising consensual sexual acts, as the Supreme Court has done, is important but the devil will lie in the details and in how the Indian body of law is recalibrated. One can only hope that those who have had no recourse but to rely on the provision [Section 377] to address sexual violations that would not otherwise be criminal are not left out and forced to endure without adequate legal recourse to address the wrongs done unto them. Ensuring that the law respects the agency and autonomy of individuals, too, will likely require careful consideration and a range of proactive measures."

[Read the whole piece here: Section 377: Decriminalising homosexuality is great, but the fight for true equality is not yet over]

The Supreme Court's decision in Navtej Singh Johar, the case in which IPC Section 377 was toned down, is incredibly important but it is not a story complete. The publication of explicit content is but one narrow issue. More important are the many steps which are yet to be taken to establish an equal society without reference to the positions of individuals on the spectrums of sex, gender identity, and sexual orientation.

(This post is by Nandita Saikia and was first published at IN Content Law.)