Constitutional Law

The Unconstitutionality of Section 67 of the Information Technology Act: Part I

Is it becoming the new Section 66A?

Madhurika Durge and Karan Kamath

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One of the objectives of legislating the Information Technology Act, 2000 (“Act”) was to deter and punish crimes like voyeurism and digital obscenity. In order to meet this purpose, the Act puts forth Section 67. This section imposes criminal liability on transmission or publication of any material which is inter alia lascivious or appeals to the prurient interests. While the intention to enact this provision was justified, the practical application of the law has rendered Section 67 vague, overarching, and constitutionally untenable. It also requires the application of the prevailing legal standards of obscenity which violates the tenets of Constitutional morality. It pervades the sphere of the fundamental right to privacy and promulgates moral paternalism on a topic which is not considered to be ‘self-harming’ in a democratic construct. This article seeks to analyze the various aspects of Section 67, link it to the concept of obscenity and expand on its transgressions vis-à-vis right to privacy and the Constitutional ideals.

Section 67 and its Discontents

Although Section 67 was introduced in the original form of the Act, its purpose was revealed in the amendment that was brought forth in 2008. The letter of the law as purported under Section 67 of the Act is as follows:

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.’

This provision suffers from three shortcomings. Firstly, it has several undefined terms; secondly, it criminalizes consensual conduct; and thirdly, its object remains unclear which makes it arbitrary and transgresses the principle under Article 14 of the Constitution.

Undefined and Vague Terms

Section 67 uses terms like ‘published’ and ‘transmitted’, whose meaning remains open to interpretation, making it difficult to ascertain as to what constitutes a crime under this provision. For instance, whether a prosecution under this Section can survive if obscene images are sent by A to B and to no other person? The ordinary meaning of ‘send’ is to ‘deposit in mail’ or ‘deliver for transmission’, which is distinct from ‘transmission’ or ‘publication’. Thus, A may not attract liability under Section 67. However, Section 66E of the Act defines transmission as ‘electronically send[ing] a visual image with the intent that it be viewed by a person or persons’ which is inclusive of the aforesaid situation. Hence, the culpability of A remains imprecise.

While the term ‘published’ has been interpreted to mean ‘known to the community’, these terms have not been specifically defined in the Section. The intent to keep these terms vague seems unapologetic since, on a comparative note, Section 66E ensures clarity of law by categorically providing defined terms. When the Apex Court struck down Section 66A, it analyzed Section 66 in comparison to Section 66A of the Act. It observed that Section 66 had clear and precise definitions of terminologies used, in stark contrast to Section 66A. This made the latter arbitrary and vague as opposed to the former.

Criminalizing Consent

Section 67 does not take into account 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. Merely shooting such videos will not attract any penal provision. However, the aforesaid vagueness surrounding Section 67 compels penalizing treatment to both production and publication. This is illustrated by a 2015 case in Mumbai, wherein a man posted intimate videos of his ex-girlfriend on a social media messaging group without her consent. While consensually recording such material is not prima facie culpable under Section 67, the criminal culpability here is violation of the former girlfriend’s consent and privacy. Nonetheless, the man was arrested under Section 67 for transmission of sexual content and not for violation of consent and privacy. This suggested that the focus of Section 67 is such that the criminal culpability is filming an obscene video as opposed to violation of consent and privacy.

Furthermore, while it makes transmission and publication a crime, mere sending of such images between two people without consent is not criminalized in particular. However, such cases are filed under Section 67, due to its failure to expressly consider consensual conduct.

Object and Purpose of Section 67

Understandably, due to such vagueness, there is a discord between Section 67’s reported object and its implementation. For example, several cases filed under the provision ostentatiously use it to censor political content online, by merely calling it “obscene”. Instances include the arrest of a journalist reporting alleged police atrocities for defamatory usage of expletives in social media messages to refer to senior police officers, or arrests for criticizing politicians. Neither of these instances, by any stretch of the imagination, can be deemed to be obscene.

Artists have also been the victim of this vague section, for example, artists expressing black humour. There is also a plethora of cases which have nothing to do with obscenity which have been filed under Section 67. It has been consistently used as a miscellaneous section due to its overarching umbrella meaning. Such cases involve arrests for circulating morphed images of public figures on social media; uploading a ‘prank video’ on the internet that depicts consensual kissing; and messaging a video showcasing childbirth. Although these cases can be seen inter alia as annoying, violating consent and privacy, or being attributable to other offences, they are not criminally obscene.

Click here for part II

Madhurika and Karan are 2020 graduates in B.A. LL.B. (Hons), from Symbiosis Law School, Pune.

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