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

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 whatrsquos obscene and whatrsquos notKundrarsquos 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 contentldquoThe videos donrsquot show the lsquoactual act of coitusrsquo or lsquoactual act of intercoursersquo hence they canrsquot be considered pornographicrdquo defence lawyer Abad Ponda said ldquoOTT platforms like Netflix and Amazon have similar content Shows like Sex life and Four Shots have similar content I donrsquot understand why Mumbai police are going after Kundra but not after Netflix and AmazonrdquoPonda argued further ldquoIn India we donrsquot follow the lsquoHicklin test of obscenityrsquo mdash the model followed by UK We follow the lsquoCanadian concept of obscenityrsquordquoThe 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 fallWhereas the Canadian standard of obscenity says mdash no person shall be convicted if heshe 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 goodPonda cited the movie Bandit Queen where the lead actorrsquos genitalia was exposed to menResponding to these arguments the court asked ldquoWhorsquos to decide whatrsquos lascivious and whatrsquos notrdquo Just like the last remand hearing the Mumbai police or prosecution did not counter or object to these arguments by PondaRemand extendedThe policersquos application seeking further remand for Kundra and his associate Ryan Thorpe talked about financial links and seized data ldquoThe trail of account to account transactions between Kundrarsquos 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 bettingrdquo the application saidPolice 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 ldquoHuge data was deleted on Kundrarsquos instructions once our case was filed After his arrest more data was deletedrdquo the application claimed Based on WhatsApp chats police have determined that Kundra was a partner in the UKbased company Kernin and was trying to sell 121 videos for 12 million in an international deal The court extended Kundra and Thorpersquos police custody till July 27Kundrarsquos legal team from Parinam Law Associates also challenged the legality of Kundrarsquos arrest in Bombay High Court The petition is likely to be heard on Monday The petition argued that Kundrarsquos 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 ldquoSection 67A of IT Act publishing or transmitting of material containing sexually explicit act can never apply to the present caseIf 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 bestrdquo27 JulyDay till when Kundra and coaccused Ryan Thorpersquos custody has been extended