Age- Gating Pornographic Content: Balancing Child Protection And Digital Rights In India

India's swift digital expansion has greatly increased the accessibility of internet content, making it easier than ever for minors to access material that is not age-appropriate. Despite clear legal prohibitions against child pornography and obscene content, there remains a lack of effective enforcement mechanisms to prevent underage individuals from reaching adult material. With millions of children carrying smartphones and adult websites often just a click away, the current absence of comprehensive regulation has given rise to a quiet but serious public health and criminal concern.

Several criminal cases in India have emphasized concerning links between unregulated consumption of pornographic material and acts of sexual violence. In State v. Sunil, the  Delhi High Court observed that the defendant raped a minor after viewing explicit videos on his phone, recognizing that this exposure contributed to his mental state at the time. The court acknowledged that such content had an influence on his mental condition. In another case, State of Maharashtra v. Umesh, a teenage boy repeatedly viewed pornography before assaulting a classmate. A psychologist testified that this exposure had considerably distorted his understanding of sex and consent.

These cases reveal a worrying pattern of criminal behaviour. While it is difficult to establish direct cause-and-effect in every instance, courts are increasingly recognizing that unrestricted exposure to pornography can lead to sexual deviance and reduced impulse control among young people. These legal acknowledgments are major enough to meet the “compelling interest” standard necessary to justify regulation under constitutional law.

While the IPC of 1860, specifically sections 292 and 293,(now Sections 353 and 354 in the BNS) makes it a criminal offense to sell obscene materials, these laws do not address access to pornographic websites. The Information Technology Act of 2000, particularly section 67, prohibits the publishing or transmitting of obscene electronic content, and section 67B criminalizes child pornography. However, the law remains silent on procedures for verifying age or restricting minors from accessing legal adult content. Currently, there are no legal requirements for pornographic platforms to implement age verification systems or block underage users.

The Supreme Court in Kamlesh Vaswani v. Union of India decided not to ban adult pornography, affirming that private viewing by consenting adults is protected under the constitution. However, the Court emphasized the importance of statutory measures to safeguard minors. Basically, while the rights of adults are upheld, the possibility of implementing legally sound child-specific regulations remains open.

From the constitutional perspective, Article 21 safeguards the right to life and dignity. The Supreme Court, in Gaurav Jain v. Union of India, emphasized the government's responsibility to shield children from moral and psychological harm. Article 15(3) allows for special provisions concerning children, providing a legal basis for age-specific restrictions. Also, the K.S. Puttaswamy v. Union of India case established that any privacy-infringing measures must satisfy three key criteria: they must be legal, serve a legitimate aim, and be proportionate to the goal. Protecting children from harmful online content can meet these standards, especially when regulations are carefully designed to be targeted and respectful of privacy rights.

On the international stage, various countries have explored different approaches to age verification. In the UK, the Digital Economy Act of 2017 aimed to enforce mandatory age checks on adult websites, but this plan was eventually shelved over privacy concerns. Germany’s JugendSchutz laws, on the other hand, require devices to come equipped with built-in parental controls and age filters right out of the box. Meanwhile, in the US, the 18 U.S.C. § 2257 regulation mandates that adult content creators verify the ages of performers, although it does not impose any specific obligations on viewers or online platforms. These global examples show that effective age-verification strategies need to be paired with strong privacy protections and reliable enforcement. India can learn from these lessons to develop its own personalized framework.

To effectively tackle this issue, India needs a comprehensive, multi-layered approach. First, the IT Act should be revised to legally require websites hosting adult content to verify users' ages through reliable methods. Section 67B should also be expanded to hold platforms accountable if they do not prevent minors from accessing such material. Next, all mobile and operating system providers should be mandated to incorporate strong parental controls and content filters into devices sold within India. Third, Internet Service Providers (ISPs) should implement DNS-based blocking for websites flagged for pornographic content, especially those without proper age verification mechanisms. Fourth, the government could introduce privacy-preserving age verification options, such as Aadhaar-based OTPs or anonymous age tokens, allowing adults to access content without compromising personal details. Finally, raising awareness through nationwide campaigns and integrating digital literacy education into school curricula will be essential to support these legal measures and help protect minors online.

Legal precedents firmly support proactive regulatory measures in this area. In Re: Prajwala Letter, the Supreme Court instructed the Central Government to block websites hosting videos of sexual assault and emphasized the importance of taking active steps to curb online sexual misconduct.¹¹ Similarly, in Shreya Singhal v. Union of India, the Court invalidated section 66A of the IT Act due to its vagueness but upheld section 69A, affirming that website blocking is permissible when properly justified and carried out through a fair process.¹² While concerns about potential surveillance and overreach are valid and should be carefully managed, they should not compromise the essential goal of protecting vulnerable children. As clarified in Puttaswamy judgment, privacy rights are not absolute, and reasonable restrictions are justified to safeguard those who are most at risk.

In conclusion, India's lack of regulation around minors' access to pornography is beyond a passive oversight, it represents a clear abdication of responsibility. What is urgently needed is a framework that respects rights, is legally enforceable, and prioritizes privacy. By examining constitutional principles, trends in criminal cases, and successful international models, India should develop legislation that enforces age restrictions on adult content, protects minors, and preserves the dignity of its digital citizens.

References:

1.     Kaur, S., Kaur, S. and Varshney, K. (2019). Recent trends in child rape crisis in Delhi (India): A forensic overview. Forensic Science International: Reports, 1, p.100047. doi: https://doi.org/10.1016/j.fsir.2019.100047. 

2.      State v. Sunil, S.C.C. OnLine Del 2192 (Del. H.C. 2012).

3.     State of Maharashtra v. Umesh, Cr. App. No. 402/2016 (Bom. H.C.).

4.     Indian Penal Code, 1860, §§ 292–293.

5.     Bhartiya Nyaya Sanhita § 353-354 (2023).

6.     Information Technology Act, 2000, §§ 67, 67B.

7.     Kamlesh Vaswani v. Union of India, W.P. (C) No. 177/2013 (S.C.).

8.     Gaurav Jain v. Union of India, (1997) 8 S.C.C. 114 (India).

9.     K.S. Puttaswamy v. Union of India, (2017) 10 S.C.C. 1 (India).

10.  Digital Economy Act 2017, c. 30, Part 3 (U.K.).

11.  Jugendmedienschutz-Staatsvertrag [JMStV] [Youth Media Protection Treaty] (Ger.).

12.  Re: Prajwala Letter Case, (2015) 16 S.C.C. 496 (India).

13.  Shreya Singhal v. Union of India, (2015) 5 S.C.C. 1 (India).

This article is authored by Avni Tripathi, who was among the Top 40 performers in the Civil Procedural Law Quiz Competition organized by Lets Learn Law. The views and opinions expressed in this piece are solely those of the author.