First, off keep in mind I oppose the law and the way it is written.
Their first problem is that they take this as a challenge to right to privacy.
The law is centered around targeting those people who manufacture and distribute porn.
You can't argue you have a right to privacy when you are selling the content publicly. That right to privacy is vacated by your own action in regard to that act. Just think of it as having sex in the middle of the street you have no assumed right to privacy because you did it in the public.
Their next big argument is there are terms that are undefined or vague. They try to push that through the rest of the rest of the articles.
Examples given are ‘published’ and ‘transmitted’. Those are more than clearly defined legally even in India's legal system and others.
They rely to heavily on the legal code alone. There is case law that also has to be considered.
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They also seems to fail to grasp the law is primarily targeting online porn.
As you can see here the law isn't written as obscurely as he makes out.
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Then they also seems to fail to loosely defined terms are used in law for a reason. That reason is to allow for a greater scope of coverage. You don't want to create a law such as it is illegal to murder someone with a handgun. Otherwise it doesn't cover the person who uses a knife or some other object. There are countries and even US states that have laws written that stupidly.
Criminalizing consent:
Thier bitching about law meeting article 14 of the constitution "14. Equality before law.—The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."
Their complaint about a case in which a man published online a video of his ex-girlfriend without her consent and was prosecuted for it. His issue is with him being charged for transmitting the video not the violation of privacy. Well technically she gave him consent to view and record that so they can't get him for violating the privacy unless they had a written contract that made it clear the privacy extended to him not being allowed to distribute it. They didn't charge him for production because under that circumstance it was a legal act between two adults and wasn't originally intended to distribution. So they can't charge him or her for the production. So the only crime in this was the illegal transmission / distribution of the video. Which is exactly what he was charged with.
India's constitution: (warning it's a book 256 pages.)
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The case we talked about prior to this article were the old man turned in the couple for making porn would have made a much better argument for article 14 of the India's constitution yet still failed in this case. That's the same law not being applied equally if the couple is charged and the man who turned them in is not. However, that isn't a failure in the law at that point because the law is written to apply equally. That would be a failure in the people not doing their job. Article 14 isn't about people failing to do their job its about making it illegal to create legislation that only applies to a portion of the populace or grants a portion of the populace more privileged. In this case that isn't the issue the law is directed at everyone equally.
They pretty much beats the narrative of ambiguity to death through both article sections.
Not a very good argument for someone graduating from
Symbiosis Law School, Pune.
Honestly, after reading it I'm surprised he graduated from any law school what-so-ever.
The only part of this article that might hold any weight is the argument regarding obscenity being two ambiguous.
Even in US law we loosely define obscenity. We have a obscenity law in the us and it is based on what the general populace views. It however isn't enforced to the greater extent. Consider 70% of the populace doesn't view porn. You could argue the majority of the populace considers it obscene. Yet, we allow porn under freedom of speech. Primarily because it was first distributed and protected under the freedom of press. And it was printed at the time and the court took press as a literal term.
This can be further scene as evident when you look at the publishing later on of cryptographic algorithms in books wouldn't land you in jail and doing so on the internet could. That later was changed and the internet became accepted as a form of publishing.
Still to this date printing something in a book is still more protected.
You can write a book on how to make all sorts of devices and weapons but publish the same thing online you will can in many cases end up in jail.
The law was primarily passed under the idea that porn and so on was harmful to the society.
If there is any hope of getting that law repealed or changed it would be on attacking that point.
Understand they used no scientific proof to create that argument.
I don't know if India's legal system allows attacking the law for being passed for a false or unproven reason.
Secondly, what level of harm is required for that to hold true?
As I said above they didn't use any science to back up their claim. That doesn't mean there isn't such proof they could have used. In fact we know there are studies showing that porn can have adverse effects on individuals. If an individual is harmed that also carries out to the society. It could simply be their behavior change has a negative effect on society. In the US we have a higher requirement than something to that effect to be used to create laws to some extent. We at one point didn't we used to lock people up in mental institutes who we deemed nuts until Ronald Reagan let the crazies out.
India's laws are vastly different in regards to aspects like that. You can actually be locked in a mental hospital without a court order against your will.
So unless you have a base or level of what is considered to be harmful to society established it may be next to impossible to get the law repealed under normal legal means.
That leaves two other options prove that the law causes greater harm or public outcry.
How would you prove greater harm. Take for instance a lot of the people who may be producing porn are low educated females with poor job opportunities and some may have children to fee. If they can't do stuff like porn on the web they could resort to prostitution which is worse than doing porn.
It's more risky in multiple ways. Women often run into bad Johns and risk of STDs increases in the society when unregulated prostitution occurs.
A better alternative to letting that happen would be to regulate prostitution and better which would cost the government money to pay to still enforce.
Alternatively let the women do the online porn and regulate the adult porn industry. Create a two types of licenses one for women who do solo and another for those who act in person on person sex in porn. The second would need to be tested for STDs. The first license can't do anything other than solo porn.
They can thus make money outside of prostitution and the risk of STDs is reduced in society.
Public out cry.
You can try and get the majority of the public to side with you. Not as likely.
Easier would be get a large enough group of people to side with you that you can shut down the legal system for years if they don't change the law.
Imagine a few million people go to an event and share porn with one another. Now they are forced to literally arrest all of them and article 14 does come into effect. It would probably plug up the legal system indefinitely and over fill the jails. They couldn't prosecute normal cases because the court would be inundated with those. If India has a strong jurisdictional set of rules such as you have to be prosecuted in the area you committed the crime you can make this even worse on the legal system by staging it in the area with the smallest legal system and jail.
Find a decent lawyer to discuss that stuff with not the two people who wrote the stupid article above.
