This article is written by Surabhi Gupta who is pursuing a Diploma in Cyber Law, FinTech Regulations and Technology Contracts from LawSikho.

Introduction

Section 67 of the Information Technology Act, 2000 (Hereinafter referred to as the ‘IT Act’) makes publishing or transmission of the obscene material, which is lascivious or appeals to the prurient interest or If its effect is such as to tend to deprave and corrupt persons who are likely, in all relevant circumstances, to read, see or hear the matter contained or embodied in it, in electronic form a punishable offence with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees in the event of first conviction and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to Rs 10 lakh.

 The phrase ‘lascivious content’ or ‘obscene material’ is highly ambiguous and disputed and leaves scope for misuse and misinterpretation. “In the online world, Section 67 of the IT Act covers similar offences as IPC Section 292”. In the case of Ranjit D. Udeshi v. State of Maharashtra, the court adopted the Hicklin Test which states that “obscenity will be judged upon “whether the material has the tendency to deprave and corrupt those minds that are open to such immoral influences, and into whose hands a publication of this sort may fall and the material in such cases was to be looked in isolation and out of the context of the work it was a part of.”  The drawback of this test was that it failed to adhere with the language of Section 292 which mandates the obscene material to be taken as a whole and read in context of the work it is a part of. In a  landmark case of Aveek Sarkar and Anr v. State of West Bengal and Ors., it scrapped the parochial ‘Hicklin Test‘ for determining ‘obscenity’ and set the ‘Community Standards Test’ as the basis of the determination. “It said that an act can be considered obscene and a charge of obscenity can be brought only if it contains matter that arouses lustful and depraved thoughts and not merely for if the content is rude.”  “It states that for a material to be obscene, exploitation of sex must be a dominant characteristic and undue in nature and will be judged from the perspective of an average person, by applying contemporary community standard.” This Section, however, suffers from three shortcomings-

1. It has several undefined terms- the terms like ‘published’ and ‘transmitted’, is, however, vague, open to interpretation, making it difficult to ascertain as to what constitutes a crime under this provision.
2. It tends to criminalize consensual conduct- it fails to consider the aspect of consent. For example, if an obscene video is shot with consent and published without consent, it is the latter which is penalized. “For instance, an incident took place in Mumbai in the year 2015, wherein intimate videos of his ex-girlfriend on a social media messaging group were posted by a man without her consent. In this particular case, recording such material with consent is not considered prima facie culpable under Section 67. The criminal culpability here is a violation of the former girlfriend’s consent and privacy”.
3. The object remains unclear making it inconsistent and violates the principle mentioned under Article 14 of the Constitution. For example, there have been several cases filed under this provision ostentatiously using it to censor political content online, by merely calling it “obscene”.
4.  Section 67 only penalizes transmission and publication of obscene material. “If the content is seen, downloaded, and merely possessed by an individual, then such content is not punishable unless the victims are children”.

The bail refers to the process of “release of an accused person, on his furnishing a personal bond or surety to abide by the conditions imposed by the court and stand his trial before the court”. “The purpose of bail is to ensure the appearance of the accused before the court whenever required but in certain cases.” As stated in the case of State of Maharashtra v. Dhanendra Shriram Bhuller etc, bail can be granted under the following parameters-

1. “In case of conviction, the nature of culpability and the severity of punishment in case of conviction and the nature of supporting evidence.
2. When there is reasonable apprehension with respect of tampering with the witness or apprehension of threat to the complainant.”
3. “Prima facie satisfaction of the court in support of the charge”. 

When it comes to Section 67 of the Information Technology Act, 2000, the bail can be granted only in situations wherein the materials that is published or transmitted or published in the electronic form, is not lascivious in nature or appeals to the prurient interest or is such that it tends to vitiate the people who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it. 

In one of the cases of Sreekumar V. v. State of Kerala, the applicant, who was of the opinion that traditions must be followed and women must not be permitted to enter Sabarimala was agitated by the stand taken by CPI(M)’s member who was in favour of the Sabarimala judgment,  made certain posts on Facebook page of the said member’s wife, who was also a member of CPI-M, a media person and also an Assistant Professor of Law describing her husband in highly abusive language and also made disparaging remarks regarding faith and religion. He also sent obscene messages to the lady with the intention to insult her womanhood and reputation and to cause her mental distress. 

The lady filed a case against him under Section 509 of the Penal Code, 1860, Section 67 of the Information Technology Act, 2000 and Section 120(o) of the Kerala Police Act, 2011. The court with respect to Section 67 of the IT Act, 2000 observed the following and said that even if the words are extremely unparliamentary, unprintable and abusive in nature, so long as the words in question are not one capable of giving rise to thoughts that are sexual in nature in the minds of the hearers and do not involve lascivious elements arousing sexual thoughts or feelings or the words do not have the effect of corrupting the persons, and befouling the morals by sex appeal or lustful desires, it cannot be brought within the broad contours of the penal provisions as contained in Sections 294 and 292 of the Penal Code corresponding to Section 67 of the Information Technology Act, 2000.

The Kerala HC granted anticipatory bail to the applicant in the instant case. Hence, it is clear from the above that to be punishable under Section 67 of the IT Act, the materials should contain sexually explicit act/conduct. 

Bail under Section 67 of the IT Act can be granted only in situations where the material is such that it does not contain sexually explicit act/conduct or which is not lascivious in nature.  

The bail application of the accused Md. Karim Khan who was under Sections 294 and 500 of the Penal Code, 1860 along with Section 67-A of Information Technology Act, 2000 for posting “an obscene photo of Prime Minister of India on his Facebook wall”, was rejected by the court.“The accused, posted the most degraded electronic form of post against the Prime Minister of India through his social networking site Facebook”. 

In another case of Kaviyarasu vs State Of Karnataka, the accused had sent WhatsApp message `Hi How are u’ and on being questioned by the daughter of the complainant as to who was he, the person had sent bad messages and made use of the photographs attached to the status in WhatsApp’ and sent obscene photographs connecting photos of the victim and also threatened that if she does not join him for chat he would upload those photographs to Facebook. The complaint was lodged and the case was registered under Section 67B of The Information Technology Act and later offences under Sections 14 and 15 of POCSO Act were also invoked. In the instant case the bail application was rejected. 

In yet another incident the anticipatory bail application of Rehana Fatimas was rejected by the Kerala High Court who circulated the video of her children painting on her revealing video. ‘The State government disapproved her conceptual art and asked the court to check on her antecedents’. 

Conclusion

From the above study, it is clear that section 67 of the Information Technology Act needs to be read and understood clearly before granting bail under this Section as certain words are highly ambiguous, disputed and has to be interpreted in the light of relevant facts and circumstances of the case as well as the current social structure and through the lens of perception and understanding of the average common people. 

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