Porn racket case: Who decides what is lascivious, asks Mumbai court

Raj Kundra while being taken to the court from the Crime Branch’s Property Cell’s office in Byculla. Pic/Suresh Karkera

The arrest of Raj Kundra and his remand hearing are all set to revive the debate on what is porn. What is the fine line between erotica and porn? What is obscenity in the Indian context and who decides what's obscene and what's not?

Kundra's lawyer again argued during the remand hearing on Friday that the videos on which the Crime Branch has based its case do not fall under the category of pornographic content.

"The videos don't show the ‘actual act of coitus' or ‘actual act of intercourse', hence they can't be considered pornographic," defence lawyer Abad Ponda said. "OTT platforms like Netflix and Amazon have similar content. Shows like Sex life and Four Shots have similar content. I don't understand why Mumbai police are going after Kundra but not after Netflix and Amazon."

Ponda argued further, "In India, we don't follow the ‘Hicklin test of obscenity' - the model followed by UK. We follow the ‘Canadian concept of obscenity'."

The Hicklin test of obscenity defines obscenity based on whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.

Whereas the Canadian standard of obscenity says - no person shall be convicted if he/she establishes that the public good was served by the acts that are alleged to constitute the offence and that the acts alleged did not extend beyond what served the public good.

Ponda cited the movie Bandit Queen where the lead actor's genitalia was exposed to men.

Responding to these arguments, the court asked, "Who's to decide what's lascivious and what's not?" Just like the last remand hearing, the Mumbai police or prosecution did not counter or object to these arguments by Ponda.

Remand extended

The police's application seeking further remand for Kundra and his associate Ryan Thorpe talked about financial links and seized data. "The trail of account to account transactions between Kundra's accounts in Yes Bank and Union Bank of Africa has been found. We believe that Kundra invested the proceeds from the porn racket and used them for online betting," the application said.

Police said that laptops of Kundra and Thorpe have been seized along with a SAN (Storage Area Network) box. The police have also accessed 48 TB data. "Huge data was deleted on Kundra's instructions once our case was filed. After his arrest, more data was deleted," the application claimed. Based on WhatsApp chats, police have determined that Kundra was a partner in the UK-based company, Kernin, and was trying to sell 121 videos for $1.2 million in an international deal. The court extended Kundra and Thorpe's police custody till July 27.

Kundra's legal team from Parinam Law Associates also challenged the legality of Kundra's arrest in Bombay High Court. The petition is likely to be heard on Monday. The petition argued that Kundra's police custody breaches the directions of the Supreme Court and that the police have wrongly invoked Indian Penal Code sections where the Information Technology Act applies. The petition read, "...Section 67A of IT Act (publishing or transmitting of material containing sexually explicit act) can never apply to the present case...If the entire material that they speak of is considered, it is clear that the same does not depict direct explicit sexual acts and sexual intercourse but shows only material in the form of short movies which are lascivious or appeal to the prurient interest of the persons at best."

27 July
Day till when Kundra and co-accused Ryan Thorpe's custody has been extended