This article has been written by Akanksha Singh. This article is an exhaustive piece of work on the detailed study and analysis of the provisions of obscenity under Section 67 of the Information Technology Act, 2000. The article provides a comprehensive learning experience for the readers as it includes a thorough explanation of the concept of obscenity, along with relevant case laws under Section 67 of the Information Technology Act, 2000.  

Introduction

The development of the idea of obscenity in India has been shaped by shifting legal interpretations, cultural sensitivities, and community standards. Early on following its independence, colonial-era legislation, such as the Indian Penal Code (IPC), 1860, which, at that point in time, had ambiguous and subjective definitions pertaining to obscenity, dominated India’s legal system. Often, these provisions of law were used to stifle artistic expression and originality. However, the interpretation of obscenity laws has changed over time to become more progressive. With the coming of the Information Technology Act, 2000, the legal understanding with respect to what is to be considered obscene in the digital space was established. With the internet allowing information to flow freely and technology developing quickly, rules protecting people from online risks are essential in this day and age. Section 67 of the Information Technology (I.T.) Act, 2000 is one such provision. In order to control and handle matters pertaining to the dissemination or publication of pornographic or sexually explicit content on the internet, this section is essential. The I.T. Act’s Section 67 deals with the issues raised by the accessibility online distribution of sexually explicit material. The law seeks to preserve the moral foundation of society and the welfare of its citizens by punishing those who engage in such actions. Moreover, the implementation of Section 67 serves to strengthen the concept of responsible digital citizenship. It serves as a reminder to people and organizations that use the internet to share or publish material with caution and judgment and to make sure that it conforms with community standards and legal requirements. This promotes an environment of decency and respect in cyberspace in addition to aiding in the prevention of the dissemination of obscene content. Although Section 67 of the I.T. Act is an essential instrument in the fight against online obscenity, it is not without its difficulties and restrictions. This article entails a detailed explanation of the concept of obscenity and a detailed analysis of various relevant case laws. 

Section 67 of Information Technology Act, 2000 :  an overview

Under the I.T. Act, Section 67 exclusively deals with the concept of ‘Obscenity’ in the digital space. It gives the punishment for the publication of any obscene material. Before the meaning of the Section is explained, it is important to have a look at what section 67 of the I.T. Act reads as. It says-

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“Punishment for publishing or transmitting obscene material in electronic form.–Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any 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, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of 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 ten lakh rupees”.

To understand the meaning of Section 67 of the Information Technology, 2000 as given above, it is important to understand certain significant terms used in Section 67. In the case of State of Gujarat v. Bachmiya Musamiya (1992), the High Court of Gujarat mentioned that since the act itself does not provide the meaning for the following terms used in Section 67, it shall be understood in the ordinary meaning of the term as following: 

  • The term ‘lascivious’ means something that creates lust in the mind of a person. 
  • The term ‘appeals to’ refers to something that excites the interest of a person. 
  • The term ‘prurient interest’ means an interest in which one is drawn by lustful thoughts. The term ‘tend to deprave and corrupt’ means to bring a person towards becoming immoral. 
  • Here, the term ‘person’ only includes natural persons, that is, children, men, and women, and does not include any artificial or juridical person. 
  • Further, the term ‘published’ in Section 67 of the I.T. Act refers to the distribution and broadcast of any information formally through its issuing and selling for the purpose of consumption by the general public. 
  • The term ‘transmission’ means communication of such information through any medium or signal. 
  • The phrase ‘caused to be public’ means even an indirect way of publication would come under the ambit of Section 67 of the I.T. Act, that is, to say, a publication by any third-party internet service provider or any server of a website.

Moving forward, let us understand what constitutes the essentials of section 67 of the I.T. Act. 

Essentials of Section 67 of Information Technology Act, 2000 

Section 67 reads as anyone who disseminates, transmits, or orders the publication of any pornographic or lascivious material in an electronic format, or if its effect is such that it tends to deprave and corrupt the mind of individuals who are likely, given all the relevant circumstances, to read, see, or hear the content contained therein, shall be punished on an imprisonment term of a maximum of three years for the first conviction or with a fine of a maximum of five lakh rupees and in case of a second conviction or subsequent conviction, the offender shall be punished with imprisonment of a term of maximum five years along with a fine of maximum ten lakh rupees. Thus, it says that a punishment of a term of a maximum of three years, along with a fine of a maximum of five lakh rupees is to be given in case when the conviction of the offender is for the first time under section 67 of the I.T. Act. From the bare reading of the provision above, the following are the essentials of Section 67 of the I.T. Act, 2000.

  • There must be a publication or transmission of material in electronic form.
  • The material so published shall be such that it is: 
  • Lascivious, or
  • Appeals to the prurient interest, or
  • Its effect is such as to tend to deprave and corrupt persons who are likely, to read, see, or hear the matter contained or embodied in it. 

In the case of Ranjit D. Udeshi v. State of Maharashtra (1964), the Supreme Court of India provided the meaning of obscene and said: “If any book, pamphlet, paper, writing, drawing, painting, representation, figure, or any other object is lascivious or appeals to the prurient interest or, if taken as a whole, is such as to tend to deprave or corrupt person, who are likely to read, see, or hear the matter contained or embodied in it, then such object shall be deemed to be obscene”.

Scope of Section 67 of the I.T. Act

The scope of Section 67 of the I.T. Act can be well understood with the help of the landmark case of Maqbool Fida Hussain v. Raj Kumar Pandey (2007). In this case, although, the charges against the famous painter Maqbool Fida Hussain, popularly known as M.F. Hussain were put under provisions of the Indian Penal Code, 1860 (hereinafter called the I.P.C.), that is, under Section 292 and Section 294 of the I.P.C, the High Court of Delhi clarified that in case there is a provision available under the I.T. Act and the subject-matter of dispute is in electronic form, provisions of I.T. Act shall prevail over the provisions under I.P.C. The Delhi High Court further mentioned that once a person is acquitted under provisions of the I.T. Act, a similar proceeding against such person cannot be initiated. Thus, provisions under the I.T. Act have an overriding effect on the other legislations containing similar or the same provisions related to obscenity. 

Punishment for publishing or transmitting obscene material in electronic form

Under the I.T. Act, Section 67 provides punishment for publishing or transmitting obscene material in electronic form. Section 67, provides that anyone who publishes or transmits any obscene material in electronic form shall be punished with a different gravity of punishment based on the offence. For a first conviction, it is a maximum of three years of imprisonment along with a maximum fine of five lakh rupees and for a second or subsequent conviction, it is a maximum of five lakh rupees along with a maximum fine of ten lakh rupees. 

Evolution of law on obscenity 

The beginning of the law on obscenity can be traced back to the 4th century when the Roman Catholic Church was making active steps to ban any heretical work. For this purpose, during the 4th century, the church established a separate specific body, named the “Sacred Congregation of the Roman Inquisition”, for the banning of any work that is heretical and immoral in nature. In 18th century England, the Protestant Church also restricted the use of any heretical and immoral books in any form as long as they were in relation to any religion or state acts. It did not significantly suppress any modern work containing obscene material. Through the invention of the printing press, the sale and distribution of obscene material became very easy and feasible. Due to this, by the 17th century, there was a widespread distribution of sexually explicit content in the form of prints and books in Europe. To counter this problem, the church and the government collectively responded by arresting the publishers and distributors of such obscene material. As per the records of England, an English bookseller named ‘Edmund Curll’ was one of the publishers who was arrested and fined for the publication of a new edition of “Venus in the Cloister”, which was a mildly pornographic work. With these events becoming more frequent, the common law system recognised the importance of having a separate, detailed law on obscenity.  

The first case on the matter of obscenity in England was “R v. Hicklin (1868)” wherein the question as to the morality was raised. The Court of England said that the question is whether the matter in discussion tends to deprave and corrupt those whose minds are open to immoral influences and into whose hands the publication may fall. Subsequently, in the year 1959, the Obsene Publications Act, 1857 was revised. It was further expanded in the year 1977. It included pornographic films under its ambit through the 1977 Amendment. In India, the history of laws on obscenity can be traced back to the British era. Before the coming of I.P.C., 1860 and Section 292 under it, there was a provision on the same that had received assent from them in the year 1856. This provision was brought in colonial India to direct the society in a morally correct direction. In the year, 1868, the Court of the Queen came up with the ‘Test of Hicklin’. Hicklin’s Test permitted the assessment of obscenity in publications based on single sections that were evaluated based on their apparent impact on the most vulnerable readers, including youngsters or sensitive adults. 

The word ‘Obscenity’ has been defined by the Black’s Law Dictionary as “Character or quality of being obscene, conduct, tending to corrupt the public merely by its indecency or lewdness”. One of the best examples to understand the concept of ‘Obscenity’ under Indian jurisprudence is the case of ‘Maqbool Fida Hussain v. Raj Kumar Pandey (2007)’. In this case, several petitions were filed against a painting made by the famous painter Maqbool Fida Hussain. The painting depicted the graphical representation of India in an abstract form, wherein a woman was portrayed in the nude with hair flowing in the form of the Himalayas. This painting was named “Bharat Mata” which was advertised in an online auction for charity for earthquake victims in Kashmir by a non-profit organisation. 

Justice Sanjay Kishan Kaul gave the judgement in favour of M.F. Hussain by stating that the painting was not obscene. He beautifully encapsulated the essence of his judgement with the following statements. 

He said “India has embraced different eras and civilizations which have given her a colour of mystery and transformed into her glorious past adapting various cultures and art forms. In the Mughal period too one may see murals and miniatures depicting mating couples. That has been the beauty of our land”. 

He further said that up until lately, there has never been a conflict between art and authority. In actuality, kings and the upper class used to support the arts and artists. It is regrettable that a lot of artists nowadays who have experimented with nudity have had their works scrutinised and had to deal with criticism, which has undoubtedly caused the artists to reconsider showing their work. Thus, examining a work of art from the standpoint of the painter assumes great significance, particularly when it comes to nudity. In order to ensure that the work is not sensational for the sake of sensationalism, it is necessary to comprehend it before raising any concerns. While mentioning the issue of balance of rights, he made a remark and said “The courts have been grappling with the problem of balancing the individuals’ right to speech and expression and the frontiers of exercising that right. The aim has been to arrive at a decision that would protect the ‘quality of life’ without making ‘closed mind’ a principal feature of an open society or an unwilling recipient of information the arbiter to veto or restrict freedom of speech and expression”. 

Obscenity Tests

With the passage of time, Courts came up with various tests to determine what is to be considered obscene at a given point in time. Let us look at each of these tests below:

Community-Standard Test

The Apex Court developed a ‘Community-Standard Test’ to determine what would constitute obscene at a given point in time in society. The Community Standard Test says that what is obscene and what is not obscene shall be judged on the basis of the current standards of the society in terms of its perception regarding obscenity as per an ordinary prudent man. The Court further went on to examine the law on obscenity under different jurisprudence. The Courts acknowledged “Obscenity” as an exception to the absolute freedoms provided by the American Constitution in the case of Chaplinsky v. New Hampshire (1942). 

Roth Test

The American Courts specifically addressed the question of “Obscenity” as a restriction on the right to free speech and expression in the case of Roth v. United States (1984), which also gave the ‘Roth Test’. In the case of Aveek Sarkar v. State of West Bengal (2014), the Supreme Court referenced the three-pointer ‘Roth Test’ as a more appropriate standard. The court mentioned the following: 

  • The first point is current community standards; 
  • The second is that the content must be blatantly objectionable; and 
  • The third is that it has no redeeming social value. 

Hicklin Test 

Further, the Supreme Court declined to uphold the common law standard that had developed in the case of R v. Hicklin (1868) and stated that “The Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press. On the other hand, the substituted standard provides safeguards adequate to withstand the charge of constitutional infirmity”. 

The judgement further goes on to trace the evolution of the concept of “Obscenity” under Indian laws. It says that a general provision on the law of obscenity can be seen under Section 292 of the I.P.C. However, it is Section 67 of the I.T. Act that comes as a primary provision dealing with any obscene material on the Internet. The Delhi High Court said that although the word “Obscene” is not restricted to the pictures or writings intended to arouse sexual desire, it also does not mean that the mere existence of elements of sex and nudity in literature and artistic creations by default makes it “Obscene”. 

In order to decide, whether a piece of work is obscene, the entire work is to be taken into consideration as a whole. The court highlights this balance of freedom of speech and expression and the law of obscenity by stating “Where art and obscenity are mixed, art must so preponderate as to throw the obscenity out into the shadow or the obscenity so trivial and insignificant that it can have no effect and may be overlooked”. Under the Indian jurisprudence, the courts have well-established the fact that mere nudity does not make a content obscene. 

In the case of Bobby Art International & Ors. v. Om Pal Singh Hoon & Ors. (1996), multiple scenes showing the lead character of the film based on the real-life of ‘Phoolan Devi’ were alleged to be obscene. In this case, the Delhi High Court’s ruling to restrict the showing of the film “Bandit Queen” was overturned by the Supreme Court of India, which ruled that a film cannot be banned simply for depicting explicit and vulgar content. The movie’s producers petitioned the Court to have the picture’s designation as “Adult only” reinstated. The film was based on a true tale of a lady who was raped and mistreated before exacting retribution on her perpetrators. The Court ruled that the producer’s right to freedom of speech could not be curtailed just because the scenes included profanity and nudity since they were necessary to tell the significant story of the film. The Supreme Court emphasised this point by stating that-

“Nakedness does not always arouse the baser instinct. The reference by the Tribunal to the film ‘Schindler’s List’ was apt. There is a scene in it of rows of naked men and women, shown frontally, being led into the gas chambers of a Nazi concentration camp. Not only are they about to die but they have been stripped in their last moments of the basic dignity of human beings. Tears are a likely reaction; pity, horror and a fellow feeling of shame are certain, except in the pervert who might be aroused. We do not censor to protect the pervert or to assuage the susceptibilities of the over-sensitive. ‘Bandit Queen’ tells a powerful human story and to that story the scene of Phoolan Devi’s enforced naked parade is central. It helps to explain why Phoolan Devi became what she did: rage and vendetta against the society that had heaped indignities upon her”. 

In India, the landmark case of Ranjit D. Udeshi v. State of Maharashtra (1965) established the standard for a more sophisticated approach. The Supreme Court of India decided that standards of society should be used to determine what constitutes obscenity. Today, the scope of laws based on restrictions on obscene content has been expanded to the digital space. Subsequent rulings further improved this approach by stressing the significance of purpose and context in defining obscenity. The case of Samaresh Bose v. Amal Mitra (1986) made it further clearer that obscenity must be assessed in the context of modern societal norms rather than Victorian morality. To counteract the degrading representation of women, the Indian Parliament passed the Indecent Representation of Women (Prohibition) Act, 1987. Growing concerns about the objectification of women in the media and in advertising led to the passage of this Act. The development of social media and the internet in recent years has made it exceedingly harder to draw limits around what constitutes obscenity. The Information Technology Act of 2000 (hereinafter called the I.T. Act)  together with its amendments, aimed to control information on the internet, including obscenity and pornographic content. 

Provisions related to obscenity in IPC and their relation with Section 67 of Information Technology Act, 2000

The I.P.C., 1860 is a comprehensive code of criminal law followed in India from the British Era. The code covers a variety of offences, including offences and punishments for any offence committed online. The I.T. Act and the I.P.C., 1860 contain many Sections that overlap with each other. This part of the article provides a detailed intersection between the provisions related to cybersecurity provided in the criminal code, that is, the I.P.C., 1860, and the Information Technology Act, 2000. They are discussed below in great detail. 

Obscenity   

Section 67, 67A and 67B of Information Technology Act, 2000

The provisions provided under Section 67, 67A and 67B of the I.T. Act are similar in nature to the provisions given under Section 292, Section 293 and 294 of the I.P.C. Section 292 of the I.P.C. talks about the sale or distribution of obscene material in electronic form. It categorically mentions that any book, pamphlet, drawing, writing, representation, painting, figure or any other object, shall be deemed to be obscene if it is lewd or attracts lustful attention, or if its impact, or (in cases where it consists of multiple distinct items) the impact of any one of its items, is, when considered collectively, such that it tends to corrupt and deprave individuals who are likely, considering all pertinent circumstances, to read, see, or hear the matter contained or embodied in it.  The proviso of this Section is the same as that of Section 67B of the I.T. Act. 

Additionally, it includes any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958), or any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose”. Section 67 provides punishment for the transmission or publication of any obscene material in any electronic form. Section 67A deals with the punishment for transmission or publication of any material containing sexually explicit acts in any electronic form. It says any person convicted under this Section if for the first time, shall be punished with imprisonment of either description for a term that may extend to five years and with a fine that may extend to ten lakh rupees, and if for the second time or any subsequent time, shall be punished with imprisonment of either description for a term that may extend to seven years and also with a fine that may extend to ten lakh rupees. 

Similarly, Section 67B deals with the punishment for transmission or publication of any material depicting sexually explicit acts involving children in any electronic form. Section 67B of the I.T. Act reads as whoever; publishes, transmits, or orders the publication or transmission of any electronic content that shows minors acting in a sexually explicit manner; or produces text or digital pictures, gathers, looks for, peruses, downloads, promotes, markets, trades, or disseminates content in any electronic format that shows minors in a pornographic, indecent, or sexually explicit way; or encourages, entices, or coerces children to engage in sexually explicit online relationships with one or more other children in a way that might offend a reasonable adult using the computer resource; or facilitates the online abuse of children; or records, in any electronic form, any abuse that oneself or others have committed in relation to sexually explicit online acts with children; shall be punished with an imprisonment term of a maximum of three years for the first conviction or with a fine of a maximum of five lakh rupees and in case of a second conviction or subsequent conviction, the offender shall be punished with imprisonment of a term of maximum five years along with a fine of maximum ten lakh rupees. For the purpose of this Section, a person who has not completed the age of 18 years is considered a ‘Children’.

However, there is a proviso to Section 67B. The proviso exempts certain acts from the ambit of Section 67B. It says that Section 67B is not applicable to any paper, writing, book, pamphlet, drawing, representation, painting, or figure in any electronic form, that is published for the justifiable reasons of public good, that is, such transmission or publication is in the interest of literature, art, science, learning, or other objects of general concern. It also exempts any such transmission or publication of any paper, writings, books etc, if it is transmitted or published for any bona fide religious purpose or for usage in any heritage site.  

Section 293 of the I.P.C.

Section 293 of the I.P.C. punishes the sale or distribution of obscene objects to young persons below the age of 20 years. It says the sale or distribution of obscene objects to young persons below the age of 20 years shall be punished in the event of a second or subsequent conviction, the punishment is “imprisonment of either description for a term which may extend to seven years, and also with a fine which may extend to five thousand rupees, along with a term which may extend to three years, and with fine which may extend to two thousand rupees.” Moreover, Section 294 of the I.P.C. talks about ‘Eve Teasing’. It says that upon first conviction, imprisonment of either description for a term that may extend to three years and a fine that may extend to two thousand rupees; upon second or subsequent conviction, imprisonment of either description for a term that may extend to seven years and fine that may extend to five thousand rupees.

Anyone who, to the annoyance of others, engages in any pornographic activity in a public setting or sings, recites, or utters any pornographic lyrics, ballads, or other expressions in or near a public setting faces up to three months in either type of jail, a fine, or both shall be punished with either type of imprisonment for a term that may extend to three months, or with fines, or with both”. 

Additionally, the provisions related to obscenity and the provisions of invasion of one’s privacy under the I.T. Act go hand-in-hand. Section 66E of the I.T. Act provides punishment for invasion of privacy. It says that anyone who intentionally or knowingly takes a picture of someone else’s private area and publishes it or transmits it without that person’s consent, in a way that violates that person’s right to privacy, faces up to three years in prison, a fine of up to Rs. two lahks, or both.

A similar provision is provided under Section 509 of the I.P.C which is also applied together with chargers under section 67 and section 66E of the I.T. Act. Section 509 of the I.P.C says that anyone who injures a woman’s modesty by speaking, acting, or displaying an object with the intention that the woman hears or sees it, or by invading her privacy, faces a sentence of simple imprisonment, which may last up to a year, a fine, or both.”The difference between Section 66E of the I.T. Act and Section 509 of the I.P.C. is that the former is applicable to both genders, while the latter includes only women as possible victims under the provisions of this Section.  

Thus, as it can be safely inferred that there are multiple overlapping or similar provisions under the cybercrimes concerning obscenity, there have also been multiple instances wherein there has been a conflict and confusion as to which law, whether provisions under I.T. Act or I.P.C. is to be applied, in certain cases involving elements of Cybercrime and Obscenity. 

In the case of Sharat Babu Digumarti v. Government of NCT of Delhi (2015), a sexually explicit video was listed for sale on a platform run by the accused. The obscene videos were intentionally listed under the category of ‘Book and Magazines’ to escape detection by the platform on which it were uploaded. The charges were laid against the accused, who was the managing director of the platform on which it was published. There were charges under both Section 67 of the I.T. Act and Section 292 of the I.P.C. However, later, both the charges were withdrawn and the question before the Court was whether to apply provisions of the I.T. Act or I.P.C. in the present situation. The Court made it clear that in cases where the content of obscenity is in electronic form, the provisions of the I.T. Act would alone be applied. The Court further held that this is so because the very intent of the legislation was to apply the provisions of the I.T. Act where there is any involvement of electronic form. The Court also mentioned that as a settled principle of interpretation of laws, it is well-known that a special provision of law prevails over the general one, Here, the I.T. Act is a special law on the Cyberlaw and hence, the matter would exclusively come under the ambit of I.T. Act. 

Provisions of obscenity under Bharatiya Nyaya Sanhita

‘Bharatiya Nyaya Sanhita’ or B.N.S. is a criminal code of the Indian Republic. It is meant to replace the I.P.C., 1860. B.N.S. has retained multiple provisions of the I.P.C. However, it has also added new provisions to the criminal code. Among diverse other changes, such as the addition of organised crimes, a significant change has been brought with regard to the law on ‘Obscenity’. 

Section 294 of B.N.S.

  • Under Section 294 of the B.N.S., along with the conventional physical sale and distribution of materials such as books, drawings, pamphlets, and figures that are obscene, the distribution and sale of such materials in electronic form has also been penalised. 
  • Section 294 of the B.N.S. says selling or distributing books, pamphlets, papers, writings, drawings, paintings, representations, figures, or any other object, including the display of any content in electronic form, is considered obscene if it is lewd or appeals to prurient interests. If its effect, or the effect of any one of its items, is, when taken as a whole, such that it tends to deprave and corrupt persons who are likely, considering all relevant circumstances, to read, see, or hear the matter contained or embodied in it. Earlier, the same provision was provided under Section 292 of the I.P.C. 
  • Additionally, the punishment provided under Section 292 of the I.P.C. has been increased. Under Section 292 of the I.P.C, the offender was to be punished for an imprisonment term of a maximum of two years and with a fine of a maximum of two thousand rupees in case of the first conviction, while in the case of a second conviction, the offender is to be punished for an imprisonment term of a maximum of five years and with a fine of a maximum of five thousand rupees. Section 292 of the I.P.C. says “An offence under this Section, shall be punished on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, 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 a fine which may extend to five thousand rupees.”
  • On the other hand, Section 294 of the B.N.S. provides for an increased punishment for a term of a maximum of two years and a fine of a maximum of five thousand rupees on account of the first conviction, and on account of the second conviction, the offender is to be punished with a term of maximum five years and also with a fine of maximum ten thousand rupees.   

Criticism of Section 67 of Information Technology Act, 2000

As with any legislative provision, Section 67 has been the subject of debate and criticism. One of the prime criticisms that have been seen with the provisions under Section 67 of the I.T. Act is that of the use of words such as “lascivious” and “prurient interests”. The usage of such a word, without any specific definition provided under the I.T. Act is criticised due to it being open to interpretation. In such a case, there is a high chance of potential abuse and misuse of the provisions under this Section. 

There have been cases where Section 67 of the I.T. Act was invoked in an arbitrary manner. Under such circumstances, it violated the person’s freedom of speech and expression. For instance, in a very recent case named ‘Apoorva Arora v. State (NCT of Delhi) (2024)’, popularly known as the ‘College Romance Web Series Case’, the Supreme Court quashed the orders of investigation and prosecution against the makers of the web series ‘College Romance’ (TVF Media Labs Private Ltd.) for production, transmission and online publication of obscene and sexually explicit material under Section 67 and Section 67A of the I.T. Act. 

This judgment reversed the order passed by the High Court of Delhi which was against the makers of the aforementioned web series. In this case, the alleged obscene material contained vulgar language. The Supreme Court said that the question was wrongly framed by the High Court of Delhi, and thus, the answer arrived at is also wrong. The concepts of profanity and vulgarity cannot be equated with the concept of ‘obscenity’ without analysing the link between the two with regard to the facts and circumstances of the case at hand. The Court said that it is important to see how vulgarity in language by itself could be lascivious, sexually explicit, prurient, or of a corrupting nature. 

The Court further said that even if the phrases may have a sexual connotation in their literal sense and may allude to sexual actions, their use does not generate lust or other sensual impulses in any viewer of common sense and discretion. Instead, the sentiments of anger, frustration, sadness, enthusiasm, and rage are more often expressed while using these terms. It is evident that the usage of these phrases has no sexual meaning and is unrelated to sex when we consider them in the context of the web series’s subject and narrative, which is a lighthearted look at young students’ college life. This case is one of the many examples of how provisions of Section 67 of the I.T. Act have been invoked arbitrarily and unnecessarily. 

Another criticism of the provisions under Section 67 of the I.T. Act is that the provisions of this Section have been found to be used to target a particular community, especially, any marginalised community. Additionally, even obscene or sexually explicit conversations held in private between two or more consenting adults are criminalized under Sections 67 and 67A of the I.T. Act. Private or obscene behaviour is not illegal under the law of the obscenity-related offence under Section 292 of the I.P.C. However, if the same is found to be done through electronic means is considered offensive, even if it is communicated privately through electronic means. 

There have been attempts to target individuals expressing legitimate artistic works and thus, the provisions under this Section have the possibility to be used as a weapon against the reasonable expression of one’s freedom of speech and expression as seen in several cases concerning artistic freedom. When the Supreme Court considered censorship in the case of S. Rangarajan v. P. Jagjivan Ram (1989), it ruled that an intolerable group of individuals could not prohibit speech. Only the goals specified in Article 19(2) of the Consitution of India may legitimately restrict a basic right under Article 19(1)(a) of the Constitution of India, and the restriction must have a valid justification. 

It came up with a ‘Test of Ordinary Man’ and observed that “The standard to be applied by the Board or courts for judging the film should be that of an ordinary man of common sense and prudence and not that of an out of the ordinary or hypersensitive man. We, however, wish to add a word more. The censors Board should exercise considerable circumspection on movies affecting the morality or decency of our people and cultural heritage of the country”. The Court further said that it is unacceptable to enable social progress or cultural integration to come at the expense of moral principles in particular. The honour of producing a galaxy of great thinkers and sages has befallen our nation. Through their lives and deeds, the great philosophers and sages left us with guidelines for adhering to morality. Efforts to relearn and reiterate those values have been ongoing. In addition, the Indian culture has made a singular gift to global mankind in the form of the notion of “Dharam” which means righteousness in every way. These are the cornerstones of our society and ought not to be subject to compromise due to immoral practices. However, it does not mean that the Court is indicating towards orthodox or conservative outlook, rather the Court is indicative towards a society that is rapidly responsive to change. 

Important case laws on Section 67 of Information Technology Act, 2000

Avnish Bajaj v. State (N.C.T.) of Delhi (2008)

Avnish Bajaj vs State (N.C.T.) of Delhi (2008) is a landmark case with regard to Section 67 of the I.T. Act, 2000.  

Facts of the case

In this case, a student from IIT Kharagpur, named Ravi Raj, published an obscene MMS video clip named “DPS Girls having Fun”, on the platform named “Baazee.com” with the username “Alice-elec”. The website, baazee.com, had a filter to separate any objectionable obscene material. However, the upload was made in such a way that it escaped the filtering process. Within two days of the item being listed online, it was deleted. The Delhi Police Crime Branch filed a formal complaint after becoming aware of the situation. Following an inquiry, a charge sheet was submitted, implicating Sharat Digumarti, the person in charge of managing such information, and Avnish Bajaj, CEO of the website baazee.com, together with Ravi Raj. Avnish Bajaj submitted a plea to have the criminal charges against Ravi Raj dropped since he fled. Among other things, he said that because the website is a customer-to-customer platform that makes it easier to sell real estate online, the MMS was transmitted directly between the buyer and seller without the involvement of the website. The website makes money via advertisements on the internet in addition to receiving a commission from these web pages. However, Avnish Bajaj was arrested under Section 67 of the I.T. Act, 2000. He further filed a bail application before the trial court. The trial Court rejected the bail. Thus, he further approached the High Court of Delhi for bail. 

Issues raised

The following issues were put forth before the High Court of Delhi, in this case:

  • Whether there is a prima facie case made out against ‘Avnish Bajaj’ (petitioner) under Section 67 of the I.T. Act?
  • Whether there is any offence made out against the website (baazee.com) under the provisions of Section 292 (2) (a) and 292 (2) (d) of the I.P.C., 1860?

Arguments of the Petitioner (Avnish Bajaj)

The arguments put forth by the petitioner said that, as per Section 67 of the I.T. Act, the publication of obscene material is substantial to the commission of an offence under Section 67. The petitioner argued that it does not relate to the transmission of such material. The petitioner further argued that the MMS video clip was transferred directly to the buyer from the seller, without any intervention from the website. The only responsibility that the website can take is the listing of the content on its website, which is not obscene in itself, and thus it does not constitute any offence under Section 67 of the I.T. Act. Furthermore, the petitioner submitted that the website took all due diligence on its part to immediately remove the obscene video clip after it came to the knowledge of the website stakeholders that it was objectionable content. They further mentioned that the website removed the content within 38 hours after it came to their knowledge that the sale of such content was of unlawful character. It took a total of 38 hours because the intervening period was a weekend. The petitioner further contended that the charges laid down in the case suggest that the director has no direct role in the present case. The listing and placement of any content from any category on the website was an automatic process. 

Additionally, the petitioner pleaded that, as per the principles of criminal liability, in the absence of a specific case being made out against a person in his individual capacity, the criminal liability of a crime cannot be laid upon him. The petitioner further referred to the case of Ranjit D. Udeshi v. State of Maharashtra (1964). It quotes two paragraphs of the judgment as follows to point out the element of knowledge in establishing the offence under Section 292 of the I.P.C. Paragraph 10 of the judgment says that Unlike several other sub-sections of Section 292, which begin with the words “Whoever knowingly or negligently, etc.”, the first sub-section of Section 292 does not include knowledge of obscenity as a requirement for the crime. It is not necessary for the prosecution to establish anything that the law does not require. If the law required the prosecution to establish knowledge as a component of the criminal act (actus reus), it would provide offenders with an almost unbeatable defence. As a result, something far less than true knowledge has to do. The argument is that because there are so many books in circulation today and their contents are so diverse, determining whether or not mens rea exists requires conclusive information about the presence of obscenity. 

Arguments of the Respondent (State)

The counsel for the state argued that the offence under Section 292 of the I.P.C. does not include only “overt acts but illegal omissions within the meaning of Section 32, Section 35, and Section 36 of the I.P.C.” and hence, clearly, there is a case made out against the petitioner. Furthermore, the respondent argued that the offence under Section 67 of the I.T. Act, read with Section 85 of the I.T. Act, is prima facie made out against the petitioner, Avnish Bajaj, because the aforementioned provisions of the I.T. Act recognise the deemed criminal liability of the directors of a company even if the company is not arraigned as an accused. They further stated that the absence of adequate filters on a website that is fully automated has serious implications, and based on such grounds, the petitioner can not escape liability. The respondent also argued that it was evident from the bank statement of the company that the website earned profit from the sale of questionable and objectionable content on the website. Additionally, they also mentioned that since it is the petitioner who is responsible for the policy and planning of the website, the role of the petitioner is direct, and he cannot escape liability. 

Judgment of the case

The High Court of Delhi did not agree with the aforementioned arguments put forth by the petitioner. The Court observed that there is a prima facie offence made out under Sections 292(2)(a) and 292(2)(d) of the I.P.C. against the website, baazee.com. Further, the Court said that “not having appropriate filters that could have detected the words in the listing or the pornographic content of what was being offered for sale, the website ran a risk of having imputed to it the knowledge that such an object was in fact obscene”. The Court said that it cannot be said that baazee.com, in this case, did not even prima facie “cause” the publication of the obscene material. The ultimate transmission of the video clip might be through the seller to the buyer but in a fully automated system, that limb of the transaction cannot take place unless all the previous steps of registration with the website and making payment take place. It is a continuous chain. When five to six links of the chain are under the direct control of the website and it is only on completion of each step that the final two steps which result in the actual publication of the obscene material ensue, it cannot be said that the website did not even prima facie cause the publication of the obscene material.

 However, the Court further said that there has been no recognizance of the provisions of automatic criminal liability attaching to a director, in the present case, Avnish Bajaj, where the company is accused. The Court further discharged the director, Avnish Bajaj under Sections 292 and Section 294 of I.P.C. The Court further held that when taken as a whole, the charge sheet establishes a prima facie case for the crimes under Sections 67 of the I.T. Act, 292(2)(d), and 292(1)(a) of the I.P.C. Nevertheless, there is no adequate justification to support an offence under Section 294 IPC. The Court held that the petitioner is discharged from charges under Section 292 and Section 294 of the I.P.C. but is not discharged from the charges under Section 67, read with Section 85 of the I.T. Act, and a prima facie case is made out against the petitioner under Section 67 of the I.T. Act, as the criminal liability of a director of a company can be recognised as a deemed criminal liability even if the company of which he is the director is not arraigned as an accused. 

Sharat Babu Digumatri v. Government of NCT of Delhi (2015)

The case of Sharat Babu Digumatri v. Government of NCT of Delhi (2015) stems from the case of ‘Avnish Bajaj vs State (N.C.T.) of Delhi (2005) itself. A detailed description of the case is given below. 

Facts of the case

In the present case, the petitioner, Sharat Babu Digumatri, was working as a senior manager in the ‘Trust and Safety’ department of the BIPL, which is a wholly-owned subsidiary of eBay, while the DPS MMS video clip was uploaded on Bazee.com, which is a part of the eBay domain itself. Therefore, this case stems from the case of ‘Avnish Bajaj v. State of NCT (Delhi) (2005). The petitioner in the present case was the officer responsible for maintaining the safety standards of the portal on which the objectional video clip was put up for sale. It was the duty of the petitioner to take action against any suspected lists of items as and when it is reported by any user. The work of the petitioner involved blocking any user who uploads any objectionable content and taking down such objectionable content from the website. The petitioner was alleged to have been actively involved in an offence under Section 292 of the I.P.C. 

Issues raised

In this case, it was clearly mentioned that the facts of the case come from the case of ‘Avnish Bajaj v. State of NCT (Delhi) (2005)’. The present case involved the issue regarding the following:

  • Whether there is any ground for framing of charges under Section 292 of the I.P.C. against the petitioner (Sharat Babu Digumarti)? 

The following part provides a detailed explanation while answering this question. 

Arguments from Petitioner

The petitioner put forth an argument stating that the petitioner was charge-sheeted purely on the fact that he is the manager of the trust and safety of the website/company, and has no other active involvement in the case. They also argued that there is no provision under the I.P.C. imposing deemed criminal liability upon any person solely because of his holding a particular designation that is relevant to the case at hand. They further contended that a mere failure to immediately remove the objectionable video clip from the website after flagging an alert by the community watch system does not attract any criminal liability. 

Arguments from Respondent 

The senior manager for trust and safety, Sharat Digumarti, was in charge of the compliance of the prohibited keyword list, the subject, and the listing of no obscene items for sale on the website. It was the responsibility of Sharat Digumarti to make sure that no prohibited or unlawful goods were exchanged on the website. He did not, however, take the necessary steps to guarantee that the list of prohibited and questionable phrases was updated. Even though the website is operational around the clock, he has not assigned someone from his team to check the listings and reply to system alarms. As a result, when the Community Watch programme raised an alarm, the item was able to be listed for 38 hours. Investigations revealed that the filters, which the defendants said were employed to screen offensive content, were severely insufficient. Without being placed under arrest, Sharat Digumarti was charged with recognisance. It is a well-established fact that the petitioner has sold or communicated an explicit or pornographic MMS clip, generating a lascivious influence on people. 

Judgment of the case

The Court gave a judgment upholding the decision of the trial Court and said that there is no illegality or any material irregularity in the order given by the trial Court in which it has proceeded against the petitioner by framing a charge under Section 292 of the I.P.C. While explaining its point for such a decision, the Court referred to the case of ‘State of Bihar v. Ramesh Singh (1977)’, the Court said that “Strong suspicion against the accused, if it remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of a trial. But at the initial stage, if there is a strong suspicion that leads the Court to think that there is a ground for presuming that the accused has committed an offence, then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused”. The Court further mentioned that it serves solely as a preliminary determination of whether the Court should move on with the trial or not. If the prosecution’s evidence fail to establish the guilt of the accused, even if it is accepted beyond reasonable doubt prior to being questioned in cross-examination or refuted by any defence evidence, then there will not be enough justification to move forward with the trial.

Thus, the Court said that there were sufficient grounds to believe that there could be such probable consequences of not having a filter that works accurately, and thus a case against the petitioner stands valid under the provisions of law. The Court further said that based on the facts and circumstances of the case, the petitioner can be said to be reasonably connected to the offence alleged. The Court stressed the fact that there is a possible reasonable probability of the accused being found guilty of the alleged offence and that there is sufficient material evidence to proceed against the petitioner under Section 292 of the I.P.C. Thus, the Court disposed of the pending application by dismissing the revision petition and upholding the decision of the trial court. 

Niyaz Ahmad Khan v. State of Uttar Pradesh and Another (2022)

Facts of the case

A First Information Report (FIR) was registered against the applicant (Niyaz Ahmad Khan) and two others. This FIR was filed under Section 67 of the I.T. Act. 

Issues raised

In this case, the issue was to determine whether the applicant had been wrongly implicated in the case.

Arguments

The applicant argued that there was no proper investigation and that the charge sheet had been submitted against the applicant without any proper inquiry or investigation. They further said that the investigating officer is unable to trace the details of the person who made the objectionable photo viral on the internet due to the non-availability of a URL of the account of the unknown person, and thus the applicant contended that he is being falsely or wrongly implicated in this case, and prayed for the quashing of the charge sheet and a summons order. 

Judgment of the case

The High Court of Allahabad said that after considering the facts and circumstances as stated by the FIR, that is, the allegations and material facts are sufficient to frame a case against the applicant, and hence, there is a case made out against the applicant in the present case. The Court elaborately explained the ingredients of Section 67 of the I.T. Act, in order to clarify its point and said the following:

  • When examining the components of Section 67 of the Information Technology Act of 2000, it is necessary to first note that any content is published or transmitted in an electronic format. 
  • In addition, the content must be lewd or appealing to a sensual appetite. 
  • Secondly, the transmission and dissemination of such content must have the effect of corrupting and depraving those who are likely to read, see, or hear it. 
  • Taking into account the definitions of “publication” and “transmission,” it must be proven that the individual accused of the crime really published or communicated the relevant content. 
  • Written content and visual content, such as images, cartoons, and/or drawings, will all be included in the material. 
  • The characteristics of lasciviousness material, ought to be considered instead of the decency criteria, nevertheless. 
  • In terms of obscenity, this type of electronic publication of content will encompass not just the internet but also its distribution and storage on floppy discs and CDs. 
  • Who is the publisher on the internet is a complicated and important question. Regarding publication through print media, this is readily apparent on the index page, where the publisher’s and editor’s names and addresses must be provided in compliance with legal requirements. 

The Court further mentioned the restrictions imposed on the freedom of speech and expression in order to answer the issue of whether the provisions of Section 67 of the I.T. Act violate the fundamental right to freedom of speech and expression. The Court referred to the case of ‘Life Insurance Corporation of India v. Manubhai D. Shah (1992)’ and said that there are certain limitations on the freedom of speech and expression; it is not unrestricted. Reasonable constraints apply to this freedom, and nothing that is deemed vulgar, disrespectful, or defamatory may be considered to be under its purview. This issue is resolved enough that there is no need to consult the Indian Constitution or case law. The notion that every person has the right to safeguard his reputation, which is considered property, is as well-established as the protection of freedom of speech and expression. No one may, then, utilise their right to free speech and expression in a way that harms the reputation of another. 

Regarding the freedom to get information or the freedom to express opinions in newspapers, magazines, and other publications, journals, or through electronic media, what has been held is that this freedom must, however, be exercised with circumspection, and care must be taken not to trench on the rights of other citizens or to jeopardise public interest. The Court held that it did not find any reasons to vitiate the registered FIR against the applicant. The Court further said whether there is any offence committed within the meaning of such provisions as mentioned under the FIR depends upon the specific facts and circumstances of the case. The Court further said that whether the alleged offences are proved beyond any reasonable doubt is again dependent on the evidence provided by the parties, and thus, it is open for the trial Court to decide the matter independently while considering the essential ingredients of Section 67 of the I.T. 2000. Thus, the Court heard and dismissed the application filed by the petitioner and allowed the trial Court to proceed further.  

Conclusion 

One of the most important provisions of the I.T. Act, 2000, is to regulate and limit the spread of obscene and sexually explicit content on digital platforms in India. For the purpose of controlling online material and safeguarding the integrity of digital spaces, Section 67 of the I.T. Act is essential. It is an essential instrument for preserving social values in the digital era and keeping the online conduct of a person in check. The provision seeks to uphold decency and stop the spread of objectionable content that might undermine the value of society by prohibiting the publishing, transmission, or instigation of the publication of any information that is lascivious or appeals to the prurient desires of a person. In addition to this, Section 67 of the I.T. Act acts as an effective deterrent for online abuse, revenge pornography, and the distribution of obscene content that exploits minors. It guarantees a safer online environment for all users and gives law enforcement bodies the authority to take action against offenders. 

However, the provisions under Section 67 and Section 67A of the I.T. Act contain a serious flaw in that it deems the publication of obscene material privately and publication on an open-ended platform as equivalent. The main weakness of the existing provision becomes apparent when one considers the punishments that would be meted out for both publishing and transmission of obscene material. However, many researchers believe that such transmission should be treated with the same regard as private interaction or conversation behind closed doors. This calls for clearer provisions for any form of content to be classified as ‘obscene’. 

Frequently Asked Questions (FAQs)

What is CSAM?

CSAM stands for ‘Child Sexually Abusive Material’. It refers to obscene materials containing sexual images or videos of a child who is sexually abused or exploited.

Which Section of the I.T. Act prevents CSAM?

Section  67B of the I.T. Act provides for punishment for publication in any electronic form of any material consisting of children depicted in a sexually explicit manner. It prescribes punishment with imprisonment of either description for a term that may extend to five years and with a fine that may extend to Rs. 10 Lakhs if it is the first conviction, and imprisonment of either description for a term that may extend up to seven years and also with a fine that may extend up to Rs. 10 lakhs. 

Is Section 67 of the I.T. Act bailable or not? 

Section 67 of the I.T. Act is a non-bailable offence. It means the accused may not be released on bond at the time of their arrest.

What is the difference between Section 67 and Section 67A of the I.T. Act, 2000? 

Publication or transmission of pornographic materials via electronic means was punishable under Section 67. On the other hand, Section 67A outlined penalties for posting or sending electronic content that included sexually explicit activities, etc.

References 

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