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Subject Law and Pop Culture

Submitted to Danish Sheikh

Submitted by Ambili Thomas 5th Year 2008-09

National Academy for Legal Studies and Research University, Hyderabad


TABLE OF CONTENTS ................................................................................................................. i 1. INTRODUCTION .................................................................................................................. 1 1.1 Aesthetics and Legality ......................................................................................................... 1 1.2 Research Methodology ......................................................................................................... 2 1.3 Research Plan ........................................................................................................................ 2 a. Scope and Limitations ......................................................................................................... 2 b. Format ................................................................................................................................. 2 2. PORN AND THE REAL WORLD ........................................................................................ 3

BIBLIOGRAPHY ........................................................................................................................... ii Articles Referred to:- .................................................................................................................. ii Websites referred to:- .................................................................................................................. ii


1.1 Aesthetics and Legality Pornography and the legality behind pornography is a much researched topic, from practically all schools of thought. However, like the nature of art or literature, there is no certainty about what can be considered pornography, whether it should be legal, and whether it can be considered to be good art or high pornography or not. With the recent petition in the Supreme Court set to debate the legality of pornography, several issues are likely to be considered. These would include debate on the rights under Article 19 and about freedom of speech. The free speech clause in the First Amendment of the U.S. Constitution is what guarantees rights to pornographers in the U.S., and the legal equivalent in India is Article 19. Further, right to life under Article 21 and whether or not pornography could be brought within its protective ambit would also be an important question. Within that context, the debate would touch on the one hand, whether right to livelihood under Article 211 would also protect pornographers, and on the other, whether right to life could be interpreted to mean the right to access art or literature, and whether pornography can be considered art or literature. Within this debate comes the question of how far pornography has any empirical (as far as possible in the world of art and literature) aesthetic value that adds to it and makes the recipient of the pornographic work have the kind of reaction that they would to other works. If so, how far can such an appeal and the right to such work be denied in the court of law, or for that matter, amongst intellectuals, censors or feminists? Towards this debate, this paper seeks to examine whether all or some pornography has aesthetic value and the manner in which different parties have considered this question.

Olga Tellis v. Bombay Municipal Corporation AIR 1986 SC 180

1.2 Research Methodology The author has chosen the doctrinal form of research for the most part in researching for the project dealing with THE AESTHETICS OF PORNOGRAPHY. Primary research has been done through sources found in Encounter Magazine as well as articles in JSTOR and SSRN. Secondary sources include material found on the world wide web regarding pornography. All parts of the project are original and not plagiarized. 1.3 Research Plan a. Scope and Limitations Due to paucity of time and space, the author has been unable to peruse all of the material available and pertinent to the subject matter at hand. Further, due to the lack of enough research material from the Indian perspective except in reference to obscenity laws and the aforementioned petition in the Supreme Court, most of the work pertinent to the Indian context will be borrowed from such cases.

b. Format The author will be examining the issue by referring to several papers, articles and cases which are relevant to the issue, and will be footnoting such references. However, the paper will be written in bog format. The reason for this, apart from the author being familiar with the format is that it allows for more appealing reading as well as more personal opinion where necessary, and in a paper about the definition of art or literature or pornography, the personal opinion of the author cannot be disregarded, if only to further the understanding of the reader about how far the paper is biased or not. Within this format style, a certain amount of mild profanity and carelessness (not disregard) for language or grammar will be implicit. The paper will be written as though it is the subject matter of a single blog post.


I don't know what the definition of pornography is and nobody else does either. Pornography is somebody else's erotica that you don't like. People are interested in their own sexuality and they've always reflected it in their art. End of story. Erica Jong

If an alien was looking down on us and inspecting our language, they would see that the worst thing we do on this planet, is we torture, we kill, we abuse, we harm people. Were cruel. And those are the things of which we should be ashamed. Amongst the best things we do is we breed children, we raise them, and we make love to each other, we adore each other, were affectionate and fond of each other. Those are the good things we do. And they would say how odd that the language for the awful thing is used casually all the time. We say, Oh, the traffic was agony, it was hell, it was cruel. Oh it was torture waiting in line. We used words like torture! Thats the worst word! And yet, if we use the F word, which is the word for generating our species, for showing physical affection one to another, then were taken off air and accused of being wicked and irresponsible and a bad influence on children. Were part of this culture so we often dont question it. But if you think of someone from outside, it is very strange. Stephen Fry

I dont know how much I like being so obvious with my blog titles. There was a time when the blog would practically be called Obscure reference to subject matter that a normal person will never get. And now we have Porn and the Real World. How have the mighty fallen.

I also tried to be less obvious with my quote choices in revealing my views on the subject of pornography, though for those of you who have read my fan-fiction about a straight Stephen Fry and an obscure but talented blogger from India, that battle is already lost. What I will be considering is how far there is any artistic or literary value to pornography. This is of interest to me because (a) I like porn and I like intellectual pontificating, so this was meant to be; and (b) In order to understand my own views on the Supreme Court petition thing, I had to write. And research a bit. I remember reading an opinion piece by George Steiner from an early sixties issue of Encounter magazine2 where he talked about the literary value of high pornography or in the case of George Steiners opinion, the lack thereof. For someone who has read about obscenity and pornography purely from the perspective of legal argument in cases like Khushwant Singh3, Raj Kapoor4 and RanjitUdeshi5, this was uncharted territory. Steiners argument started with the suggestion that pornography does not have plot enough to be considered good literature. Allow me to expand on this. He talked about how the sexual intimacy that pornography represents lack any ingenuity or novelty. This was not a criticism of any particular author, so much as the field itself. He was of the opinion that sex in and of itself could never be an interesting enough or novel enough occurrence to justify its description in works of literature. In his words, There just arent that many orifices given the physiological and nervous complexion of the human body, the number of ways in which orgasm can be achieved or arrested, the total modes of intercourse, are fundamentally finite. The mathematics of sex stop somewhere in the region of soixant-neuf (sixty-nine). Interestingly enough, traces of this line of argument can be seen in the RanjitUdeshi6judgment, which for the uninitiated and un-law-schooled was regarding the book Lady Chatterlys lover by D.H. Lawrence. It involved Lady Chatterly, whos married to a man paralyzed so he is unable to boink. She takes a lover who happen to be the gamekeeper of their grounds. There is a lot of class and gender commentary in there. Its a good book. I believe there
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George Steiner, Night Words: High Pornography & Human Privacy, Encounter, October 1963 Khushwant Singh v. Maneka Gandhi AIR 2002 Del 58 4 Raj Kapoor v. State AIR 1980 SC 258 5 Ranjit Udeshi v. State of Maharashtra AIR 1965 SC 881 6 Ibid.

were references to it in the first season of Mad Men, I say hoping to pique your interest. In that case, one of the debates surrounding the book itself was whether the sexual scenes in the book were necessary at all. The whole book really consists of detailed descriptions of their sexual fulfillment. They are not offensive, sometimes very beautiful, but on the whole strangely wearisome. The sexual atmosphere is suffocating. Beyond this sexual atmosphere, there is nothing. We will be getting to my very predictable reaction to this by and by. Steiner further talked about how very few writers had the genius that would allow for such drab and done activities to actually enlarge our experience of sex or for that matter, of life. The exceptions to this he brings are few, and include Catullus, Dostoevsky, Proust, De Sade7 and Nabokov8. What I personally found even more interesting was Steiners position on censorship (he favored it) and the reasons for it. His argument resides in talking about how pornography takes away from privacy, both of its created subjects as well as its readers or watchers. He talked about how the act of sexual intercourse as a rather sacred and very personal one for every person. The writer of pornography seeks to instill his understanding and experience of this personal act into the mind of the reader. What was initially just the territory of the one person, is now infused with images and ideas that are not his (I would add or her, but at the risk of sounding biased, Girodias hardly seemed to be arguing keeping female consumers in mind) own, and this is an area that should ideally not be encroached upon by anyone. Steiner basically thought of pornography as a brain chip from an unbelievable sci-fi movie. One that would transform the person into whom said chip was inserted into something else; in this case, that something else seems to be a person who knows a few more positions in which to do the nasty and someone who recently masturbated. Is my opinion too obvious? Is my bias too visible in the summarization? Nevertheless, we soldier on. There were several replies to this essay, but the ones that Encounter chose to publish was written by Maurice Girodias, founder of the Olympia Press, the magazine that once had partial
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Marquis De Sade, 120 Days of Sodom, 1905 Vladimir Nabokov, Lolita, 1955

rights to Lolita.9 Anything that owned even part of that book is worthy of a second look, wouldnt you say? Good call, editors of Encounter. To begin with, Girodias chose to address Steiners arguments about the banalities of sex by suggesting rather insidiously that perhaps Mr. Steiner does not find the aesthetic appeal in porn because they raise the standard of what one should do during intercourse way past soixantneuf and he finds himself unable to compete in the marketplace. A logical argument that contributes to the discourse? Not by far. Is it a slam dunk in terms of quantity and quality of the burn rendered to Mr. Steiner? Hells yeah. More significantly to the debate, Girodias indicates that Mr. Steiner seems to be content in decreeing pornography or even high pornography as banal on the one hand and on the other hand, also dangerous in its pernicious and pervasive infringement upon a persons imagination. Which brings us happily to said allegations of invasion of privacy. As Girodias points out, this is certainly an original critique of pornography, but it seems to be willfully ignoring relevant arguments. As I so very cleverly put it earlier, Steiner seems to be writing from a rather limited perspective. Its largely male oriented, exclusively monogamous and just a wee bit prudish. Schechnerperhaps puts it best10 when he says that Steiner may want literature to explore all aspects of human life, but does not seem to consider sex, especially non monogamous sex to be part of the human experience. One line of argument to make against Steiners demands on high pornography would simply be that from the perspective of law and free speech, or even from the perspective of writers, artists or publishers who had suffered through many forms of unwarranted censorship, to make such demands is in itself regressive at best and pathetically uninformed at worst. However, a more pertinent argument that has some implications to the question of aesthetics is whether or not pornography actually needs to fulfill a standard, and a rather vague one at that in order to be considered high pornography or literature. Certainly, one can understand some pornography to be of higher value literarily, but is it really possible to assume


Maurice Girodias, The Erotic Society, Encounter, November 1963, P. 52 Richard Schechner, Pornography and Privacy, Encounter, November 1961, P. 94

that because its subject matter is that banal and tiring thing sexual intercourse, as per Steiner, it would necessarily not be the stuff of legends or as much a commentary and a contribution to human life as any other form of literature or art? The kind of sanctity Steiner gives the sex act itself, that merits such great protection against voyeurism does not seem to account for sex being a part of everyday life. If literature can account for and talk about such everyday human experiences such as loss, love, death, greed, envy or a number of other sins, then any piece of literature which chooses to not venture into the space of the bedroom would seem to be purposely and rather blatantly ignoring a rather important and beautiful part of human life. If there is as much sanctity and beauty in sexual intercourse as Steiner makes it out to be, then shouldnt any literature in fact not ignore its presence and its components in order to be true to life? Love is sacred, isnt it? We explore that enough. So is religion (god only knows why though) and Lucifer knows we never shied away from that in literature. Or films.Or songs.Or porn? Im pretty sure I ran into some Catholic priest and young devout porn while doing lets-call-it research on a Manga site for this post. Pretty sure and not entirely sure because the good catholic girl in me didnt really click on that link. And true to life brings us quite unfortunately (unfortunately because nobody really wants to look at case law in what is otherwise a fun-filled extravaganza of a blog) to a little known (I think) case called Samaresh Bose v. Amal Mitra11. Here a young (probably) man had written a short novel in which the experiences of a young whipper snapper was documented. These included his experiences with his significant other of the opposite sex, with whom he did the dirty. I could quote direct lines from the book, but due to not having found the book, I really cant. I can quote direct lines from the judgment, but since that judgment didnt end up censoring the book, its not as amusing as it would have been. This is similar to J. Woolseys test in United States v. One Book Called Ulysses12(really badass name as far as cases go) to determine whether James Joyces Ulysses should be banned in the U.S. He apparently asked a bunch of normal men to read the book and asked them to say if it stirred the sex impulses, a turn of phrase which I personally find to be both humorous and beautiful, and which I want to employ without discretion, but I wont.
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Samaresh Bose v. Amal Mitra AIR 1986 SC 967 December 6, 1933, U.S. District Court, Southern District of New York, Opinion A. 110-59

From a literary/ intellectual perspective, one has to wonder exactly what is so terrible about bringing about stirring the sex impulse. If current pop culture references to adolescent men and their sexual behavior is anything to go by, then practically anything could cause stirring of sex impulses (dingdingdingding) to occur.13 An image of a woman wearing clothes in which it is obvious that she has breasts would be pornography. Admittedly, from both a criminal justice and a feminist point of view, there is some amount of justified disdain for stirring of sex impulses (Im not trivializing this, I just really like the phrase). I have run into this disdain too many times to count in trying to familiarize myself with the kind of feminism I usually dont prescribe to. Not that theres anything wrong with it, but if I were to start obsessing about tropes and problematic representations of women and men while watching films, I wouldnt really be watching a film the way I like to. This is true even with rather weird Japanese pornography because as far as Im concerned, there is a clear distinction between things that turn me on and things that I want. Well get back to that after we examine these problems. It would be very willfully ignorant of us to deny that pornography for the most part does not treat women very well. Its also true that most pornography seems to be directed at men, discounting erotic literature, which is either directed at a neutral audience if its the kind of thing that Steiner refuses to call high pornography; or at women, if its the kind of thing published by Elloras Cave. And going by what survey says14 or at least a survey says, pornography is likely to make men of not very high IQ more confident and at times, more aggressive around women. Add to that Ted Bundy and his death-seat opinion on pornography contributing to his actions, and weve got a solid argument against non-regulation of pornography.15 Please note here that throughout this whole article, Im talking largely about pornography that is filmed with consenting adults. Rather late in the day to add a caveat perhaps, but there it is. Personally not having homicidal or misogynistic tendencies (that I know of) I dont know how much merit I can give to this concern, but I choose to give it the benefit of the doubt.
James L. Jarrett, On Pornography, Journal of Aesthetic Education, July 1970, P. 64 Anthony F. Bogaert, Ulla Woodward and Carolyn L. Hafer, Intellectual Ability and Reactions to Pornography, The Journal of Sex Research, August 1999, P. 283 15 Although that is in itself is suspect given his connection with some or the other anti-pornography institution which rumor has it, was planning on asking for a pardon once he gave such a statement. Stephen Michaud and Hugh Aynesworth, Ted Bundy: Conversations with a Killer, 1989.
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However, my problem here is what Schechner16 pointed out suppressing sadistic art or literature because we abhor sadistic behavior is problematic, because on the one hand, we dont know how much affect it would have, and as Jon Stewart pointed out, nobody wanted to go hiking just because they saw Dantes Point and thought it was exciting. Censorship based on this concern would only prove to be a mode of manufacturing relief, one that is very likely unjustified. On the other hand, censoring books or art because it depicts something were not fond of would mean we may have to chisel off parts of Berninis Apollo and Daphne a la The Vatican, and would have to redact parts of Crime and Punishment because we dont like the axemurdering of old biddies. --

Which brings us to the sad nature of the events surrounding the petition in the Supreme Court. As I have previously mentioned, I didnt join in the protests after the Rape incident, for reasons that seem a bit flimsy after a chat I had with a friend who pointed out that even if one does not agree with the manner in which rage drives an issue, it doesnt take away from the issue itself or the fact that without perhaps unwarranted rage, no issue would become an issue. My problem with the manner in which the problem is talked about especially with regard to rape or any kind of sexual violence is that very often, the debate is geared towards finding a solution and a quick one at that. This sort of implies the assumption that the problem itself is a simple one. And that is the kind of assumption that one just cannot make after five years in law school or really, five years in any place where one is required to think critically. The problem isnt simply that some people are misogynistic sadists with psychopathic instincts, no matter what Criminal Minds says. Even in the U.S., if theres anything the Stuebenville incident proves, it is that rape and sexual violence is based not just on the mental make up of a few misguided young people, it is more often than not based on the attitude and mind-set of a society at large. The reason six people in a bus would decide that raping a woman and injuring her in an utterly inhumane manner is alright is because they have been assured at some level, day in and day out that it is actually not such a bad thing to do. That it is in fact

Supra n. 10

acceptable. This assurance happens when they listen to parents talk about women, when people dont get angry at eve-teasers and in a myriad of other ways. Does pornography have a role to play? Undoubtedly it does. But nor more or less than films such as KyaKoolHai Hum or Golmaal, or songs by Honey Singh or jokes by Tosh.0. All of which can be criticized, but taking them off air would hardly affect change enough. The petition in the Supreme Court includes statistics that look at increase in the consumption of pornographic material and correlates that with the increase in rapes and other sexual offenses. Im hardly an economics student, but I have read Freakonomics - which is what the cool people who could have done economics but chose not to, read. At least thats what my ego tells me. And one of the first things Levitt and Dubner warn against is forming relationships between incidents just because they can be formed. Just because Apple sales went down and so did brain hemorrhages in a particular year, does not mean your iPadis going to kill you with a stroke, although that could be the premise of a rather awful movie. And just because people watched porn more, and at the same time, people thought rape was alright does not mean there is a clear connect between the two, at least not to the extent that would justify banning pornography. Perhaps the only thing that would have an actual affect on societal misogyny and rape statistics is proper education, and I dont mean your tenth grade syllabus on sexual reproduction. I mean full on sex education which also takes into account factors other than pure sexuality and/or sexual acts. An understanding of sex, sexuality, body image, and social constructs of the same taught to combat bulshitty notions of women and gender would be perhaps a less satisfying to our sense of vengeance than death penalty or castration, and less seemingly drastic as banning porn, but would probably be more effective. It may not work, of course, but it also would not be affecting your free speech. In fact, when the Kerala Government was looking over a proposed syllabus for sex education one of the objections raised was that it seemed to give no credence to social aspects of sexuality17. On the face of it, this may seem problematic, but perhaps an understanding of the way the world perceives and sexuality and how one can deal with that, whether it is by not joining in slut17


shaming or in India, not joining in any-woman-at-all shaming, or by not assuming that its alright to rape. Unfortunately or fortunately (for the sake of equality?) these might be useful life-skills to hand out to both men and women. So what can we take away from this? Well, on the one hand, I dont understand someone who can use words like banality to describe pornography. Especially given that I believe if people are honest with themselves, a large part of one persons life would be entrenched in sex and sexuality. As far as the negative effects pointed out by our lovely petitioners as well as some feminists and Steiner, there may be truth there, but not enough to place excessive blame or even enough blame on pornography to ban it. That would be simplifying sexual violence and rape, as well as people involved in it including the victims.



Articles Referred to: George Steiner, Night Words: High Pornography & Human Privacy, Encounter, October 1963 Maurice Girodias, The Erotic Society, Encounter, November 1963 Richard Schechner, Pornography and Privacy, Encounter, November 1963 James L. Jarrett, On Pornography, Journal of Aesthetic Education, July 1970. Anthony F. Bogaert, Ulla Woodward and Carolyn L. Hafer, Intellectual Ability and Reactions to Pornography, The Journal of Sex Research, August 1999. Doug Blandy and Kristin G. Congdon, Art Education and Issues of Pornogrpahy, Studies in Art Education, Winter, 1997. Robert Jensen and Karla Mantilla, Pornography and Pop Culture: Real Men, Real Choices, Off Our Backs, 2007. Bruce J. Ellis and Donald Simmons, Sex Differences in Sexual Fantasy: An Evolutionary Psychological Approach, The Journal of Sex Research, November 1990.

Websites referred to: