In its most recent decision, the Kerala High Court considered this question when it was considering a case of a person who was arrested by the Kerala police on the accusation of watching porn on his mobile.
The Observation and Decision of the Court
While considering the question whether a person watching a porn video in his private time without exhibiting it to others amounts to an offence, the court analysed the case as follows-
“Pornography has been in practice for centuries. The new digital age has made it more accessible than ever before and it is available even to children and adults at their fingertips. The question to be decided in this case is whether a person watching a porn video in his private time without exhibiting it to others amounts to an offence?
A court of law cannot declare that the same amounts to an offence for the simple reason that it is his private choice and interference with the same amounts to an intrusion of his privacy. But God designed sexuality as something for a man and a woman within marriage. It is not only a lust but also a matter of love and for having children too. But a male and female who have attained majority, doing sex with consent is not an offence.
Consensual sex between a man and woman is not an offence in our country, if it is within their privacy. A court of law need not recognise consensual sex or watching of a porn video in privacy because these are within the domain of the will of society and the decision of legislature. The duty of the court is only to find out whether it amounts to an offence.
Even according to the prosecution, there is no case that the accused was watching obscene videos using a mobile phone which will attract youngsters. There is absolutely no allegation by the prosecution that the petitioner publicly exhibited the video. Even the Sec.161 Cr.P.C statement of the police officer only shows that the petitioner was watching the obscene videos looking down at his mobile phone.
Watching of an obscene photo by a person in his privacy by itself is not an offence under Section 292 IPC. Similarly, watching of an obscene video by a person from a mobile phone in his privacy is also not an offence under Section 292 IPC. If the accused is trying to circulate or distribute or publicly exhibits any obscene video or photos, then alone the offence under Section 292 IPC is attracted.
In the light of the principle laid down by the Court, no offence under Section 292 IPC is made out against the petitioner.”
Before parting the case, the court also said,
“Watching pornography may not be an offence. But if minor children start to watch porn videos, which are now accessible in all mobile phones, there will be far reaching consequences. The innocent parents will give mobile phones to their minor children to make them happy.
Instead of delicious food made by the mother and a cake cutting ceremony on birthdays of children, parents are giving mobile phones with internet access to their minor children as a gift on such occasions to make them happy. The parents should be aware of the danger behind it. Let the children watch informative news and videos from the mobile phones of their parents in their presence.
Parents should never hand over mobile phones to minor children to make them happy and thereafter complete their daily routine works in their house allowing unsupervised use of mobile phones by children. Let the children play cricket or football or other games they like during their leisure time. That is necessary for a healthy young generation who are to become the beacons of hope of our nation in the future.
Instead of purchasing food from restaurants through ‘swiggy’ and ‘zomato’, let the children taste the delicious food made by their mother and let the children play at play grounds at that time and come back home to the mesmerizing smell of mother’s food. I leave it there to the wisdom of the parents of minor children of this society.”
Reference
As held by Judge at Kerala High Court P.V.Kunhikrishnan in the case of ‘Aneesh v State of Kerala (2023)’.