By Shubhra Agarwal and Anusha Agarwal
The Information Technology Act, 2000 has been contentious legislation since its enactment. The Act gave a new direction to how cyber-crimes are dealt with in India. However, the question we ask today is whether it fits satisfactorily in the current scenario or does it require revision. One particular section that has been a subject of deliberation off late is Section 67.
The recent incident of ‘bois locker room’ along with the stark rise in cases of online harassment has sprung questions on the viability of Section 67 of the IT Act. The section penalises publication and transmission of obscene material, of material containing sexually explicit acts, and of material depicting children in sexually explicit acts in electronic form. The punishment can be up to 7 years along with fine that can be up to 10 lakh. On a cursory reading, the provision seems robust. But the vague character of its terms such as what constitutes ‘lascivious content’ or ‘obscene material’ is highly disputed. The grey area in this provision leaves scope for misuse and misinterpretation.
The section is gender-neutral recognising that online harassment can victimise any gender. Nonetheless, Section 67 is the primary provision that is applied in maximum cases of cyber crimes against women along with Section 66 E which penalises violation of privacy. Now the sheer range and volume of cybercrimes targeting women have multiplied. In light of these facts, we shall determine whether the Section is adequate to cater to the evolving character of cybercrimes in the global era. We shall also discuss if its application is serving the originally intended purpose or has it gone awry.
DEFINING SCOPE OF OBSCENITY
Section 67 of The Information Technology Act, 2000 penalises any person for transmitting obscene material that is lascivious in nature. The terms ‘obscene’ and ‘lascivious’ are subjective and are open to being interpreted differently by different people. In Roth v. United States the US Supreme Court held that obscenity does not confine within the limits of constitutional freedom of speech or press. Materials which are ‘sex-related’ having a tendency of ‘exciting lustful’ thoughts would fall under the ambit of obscene. The explanation of obscenity laid down, in this case, was three-fold. It required the concerned matter to be ‘patently offensive’, possessing ‘no redeeming social value’ and to be evaluated by the ‘Community Standards Test’. Such a definition can be called lucid and unobjectionable since the first and second requirements reduce the space for cultural subjectivity creeping in. The Canadian courts also applied the ‘community standard test’ according to which community standards and preferences outweigh dominant preferences to determine the obscenity of a source. The test lays emphasis on the fact that the standard of tolerance is relevant and not taste.
Indian Courts adopted a very broad definition of ‘obscenity’ up until the landmark case of Aveek Sarkar and Anr v. State of West Bengal and Ors. wherein 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 cannot be considered obscene merely for its nude content. Nevertheless, if it contains matter that arouses lustful and depraved thoughts, a charge of obscenity can be brought. Despite stepping ahead by taking a progressive view of the definition, the Courts still need to fill many significant lacunae with respect to Section 67. One significant gap is that it fails to separate the non-consensual acts involving ‘purported obscenity’ from the consensual ones. This puts a big question on consent versus the societal standards of classifiable obscenity.
While discussing the purview of the provision, a question always arises with regard to the uncertainty over the application of S. 67 of the Information Technology Act, 2000 vis a vis. S. 292 of the Indian Penal Code, 1860. This was settled in the case Sharat Babu Digumarti v. Govt (NCT of Delhi) which maintained the overriding effect of special laws (IT Act) on the provisions of general law (Indian Penal Code).
Further, in Maqbool Fida Hussain v. Raj Kumar Pandey,  the apex court applied the principle ‘generalia specialibus non derogant’, and held that when the crime committed has some nexus with electronic medium, provisions of the IT Act would apply. It was further held that when the accused has been acquitted under provisions of the IT Act, similar provisions of the IPC would not apply.
Non-mingling of IPC with the IT Act in handling cases of online crimes serves the purpose of uniformity and unambiguity while framing charges. Concurrently, this implies that Section 67 enjoys precedence over other relevant sections of IPC in cases of cyber crimes against women and children despite having its shortcomings. Part A & B of S. 67 are the only two non- bailable offences as per S. 77B of the Act. Hence, the careful use of this Section becomes all the more crucial.
After the strike down of Section 66 A of the IT Act owing to its rampant abuse, a new provision took its place. Section 67 is being actively misused to file complaints of cyber defamation even though it clearly neither intended for nor applies to the said cause. There have been quite a few instances where this section has been used to curb political dissent. One such case is where a journalist was arrested in Chattisgarh for posting comments against Samajik Ekta Manch on WhatsApp for circulating obscene material. In another similar incident, a woman from Bangalore was booked for posting objectionable material on FaceBook against Yogi Adityanath.
Besides the politically motivated complaints, the Section is also subjected to misuse in cases where there is ‘no actual harm’ caused due to the asserted obscenity and/or where the matter violates a larger purpose than mere lewdness.
For instance, in a recent case in Pune, four underage boys were charged with Section 67 of the IT Act along with other relevant sections of POCSO AND IPC for filming and sharing a video where they perform sexual acts on each other. A report ‘Guavas and Genitals‘ which drew its matter from this case analysed NCRB data and found that between 2015-17, 99 cases of obscenity were registered out of which only 28 involved non-consensual production. The report questioned:
“Shouldn’t they have been protected from a privacy violation instead of being booked for circulating obscene material?”
Here, the concept of ‘consent’ holds significance which is not given due regard under the Act. It is imprudent that videos of rape are not booked for the violation of victims consent but for the ‘anti-obscenity’ law. The wire in this regard stated that the utmost harm caused by the circulation of a nude image concerns the victim’s privacy and not obscenity. The DPS MMS Scandal is the classic example of how the provision is not designed to protect the victim’s privacy and consent but to merely stop the obscene material.
A significant concern with respect to Section 67 is that it only penalises transmission and publication of obscene material. Viewing, downloading, and possessing such content is not punishable unless the victims are children. While it is impossible to try each person in possession of the content, but rendering the ones who are complicit in the commission of the crime (though inactive) free from liability defeats the purpose of hindering the obscene content.
Additionally, the Section is over-used and exhausted in all online crimes against women. In fact, many crimes do not fall under the scope of the Act since offences like cyber-stalking and defamation, email-spoofing and morphing are not included in the legislation and therefore do not carry penal punishment.
Many reports suggest that women who complain about cyber harassment suffer from ‘secondary victimization’ at the hands of the police, media and the judicial machinery. Out of the fear of tarnishing her image and her family’s honour, the women are often wary of registering a complaint with the police. In many cases, the women are threatened with abuse, rape and worse in order to keep them from filing a complaint. Considering the sensitive nature of these matters including how society impacts these incidents, there is a need for a more robust, specific, and wide-eyed legislation.
According to the data released by National Commission for Women (NCW), it received 54 complaints in the month of April in comparison to the 28 received in March this year. The Akancha Foundation also received 462 complaints in March- April. This significant increase in cases is a result of the nation-wide COVID-19 lockdown, implying that the caged-criminals are now preying on victims through the cyberspace. Even if we disregard the present situation for its unique nature, it is a reality that technology is advancing fast and an increasing number of people now have access to cell phones and the internet. A much greater part of the population, especially women and minors, is now at risk of being exposed to cybercrimes. It is preposterous to assume that the given Act with its limited recognition of cybercrimes would be able to fend for the changes that lie ahead.
What’s peculiar here is that the concerned provision suffers from both misuse and inadequacy. The incapacity can only be dealt with by taking into account all the gaps and filling them with essential measures. In contrast, the misuse can be hindered by defining the terms with more clarity and giving ‘consent’ due recognition under the clause.
[The co-authors are second-year students at National Law University, Odisha.]
 354 US 476.
 Towne Cinema Theatres v. The Queen, (1985) 1 SCR 494.
Maqbool Fida Hussain v. Raj Kumar Pandey, (2008) 2 CCR 392.
 (2017) 1 SCC (Cri) 628.
 (2008) 2 CCR 392.