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Section 67 Of It Act 2000 And It's Scope And Misuse To Violate Digital Freedom

Introduction

The Information Technology Act, 2000 (also known as ITA-2000, or the IT Act) is an Act of the Indian Parliament notified on 17th October, 2000. It is the primary law in India dealing with cybercrime and electronic commerce. One of the objectives of legislating the Information Technology Act, 2000 ("Act") was to discourage and punish crimes like voyeurism and digital obscenity although this Act has been a subject of contention and controversy. As it is amended, it contains some of the most stringent privacy requirements in the world and has the unfortunate impact of holding intermediaries liable for illegal content.

According to Section 67 of the Information Technology Act, 2000 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 fine which may extend to ten lakh rupees.

There has been stark rise in cases of online harassment recently which has sprung questions on the viability of Section 67 of the IT Act. Nonetheless, Section 67 is the primary provision that is applied in maximum cases of cybercrimes against women along with Section 66 E.

Scope

Lately, there have been multiple cases of cyber-crime which intend to insult the modesty of women and also defame any person. Section 67 of the Information Technology Act covers similar offences as IPC Section 292.

Section 292 of IPC says: "a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if it effect is such as to tend to deprave and corrupt person". However, the penalties under IPC Section 292 and Section 67 are different. While the jail term and fine under IPC Section 292 for the first time offenders are two years and a moderate fine of Rs 2000 respectively, under Section 67, it is five years and Rs 5 lakh. The jail term and fine on second conviction is three years and a fine of Rs 5000 under IPC Section 292, but five years and Rs 10 lakh under Section 67 of IT Act. Now the term `obscene' and 'lascivious' are subjective and are open to being interpreted differently by different people. A matter or an act cannot be considered obscene merely because for its nude content but if it contains matter that arouses lustful and depraved thoughts, which also falls under the ambit of the definition prescribed under the relevant Section, then a charge of obscenity can be brought. Nakedness does not always arouse baser instinct. 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 IT Act would apply and when the accused has been acquitted under provisions of the IT Act, similar provisions of the IPC would not apply. Hence it is clear that Section 67 enjoys precedence over Section 292 and other relevant sections of IPC and therefore use of the said Section becomes even more pivotal otherwise it can have climacteric effect.

Misuse

Five years after the controversial Section 66A of the Information Technology Act was struck down by the Supreme Court, new research points out at how another section of the Act is being similarly misused with grave consequences for freedom of expression, sexuality and digital rights. Section 67 is misused to curb the Political dissent. Recently cyber police have arrested a 38-year-old woman in Navi Mumbai after she shared a photoshopped image of Maharashtra CM Uddhav Thackrey and abused him and his son Aaditya Thackrey on social media. She has been booked for promoting enmity between different groups and defamation among other charges. In another similar incident, a woman from Bangalore was booked for posting objectionable material on FaceBook against Yogi Adityanath. Nowadays lot of female celebrities are getting rape threats on social media due to ongoing nepotism debates and also due to Sushant Singh Rajput's suicide case many celebrities are under the fire and are getting death threats but not a single person is arrested or booked. But any statement made against politicians on social media is promptly looked upon. Another significant point is that Section 67 only penalises transmission and publication of obscene material. Viewing, downloading and possessing such content is not punishable unless the victims are children. Recently `Bois Locker Room' incident was highlighted in media in which the boys were involved in deranged conversation and were objectifying women. However, no one questioned the adult content which is easily available to children below the age of 12 on OTT platforms. They have direct access to apps like Ullu and ALT Balaji where the entire content is full of bawdiness. We can assail the `Bois Locker Room' incident but society as a whole has seen a drastic change in the past decade which has contributed to such incidents. Such `obscene material' which is easily accessible to all contributes to the harassment and objectification of women on social media. Since there is little legal clarity on what is obscene, there is subjectivity which allows for arrests and indiscriminate arrests.

Conclusion

It is quite evident that Section 67 is widely misused and that there is lack of clarity on the term `obscene'. The apex court has set the `Community Standards test' as the basis of the determination of obscenity instead of the parochial `Hicklin Test' in Aveek Sarkar Case but still Courts needs to fill many significant lacunae with respect to section 67. A report `Guavas and Genitals' drew its matter from a case in Pune in which four underage boys were charged with Section 67 of the IT Act for filming and sharing a video where they perform sexual acts on each other. Here, the concept of `consent' holds significance which is not given due regard under the Act. This shows that the provision is not designed to protect the victim's privacy and consent but to merely stop the obscene material. It is pertinent to note that between 2015-17, out of 99 cases of obscenity that were registered and analysed, 28 involved non-consensual production of images or videos. However, those cases were not registered under 66E (which deals with privacy violation), but under Section 67 which deals with obscenity. The question which arises now is that do existing laws and initiatives support women in actual practice in confronting the considerable challenges that they face online? It is a reality that technology is advancing and the number of people including all age groups are using cell phones, laptops and have access to internet, therefore, they are at risk of being exposed to cybercrimes. Section 67 is misused and is also inadequate but this inadequacy can be dealt with by taking into account all the loopholes and working on it with essential measures. The misuse can be treated by not using the said section for political dissent and by defining the terms with more clarity and giving `obscene' due recognition under the clause.

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